Conventional and innovative justice responses to sexual violence

ACSSA Issues No. 12, 2011

ACSSA Issues coverConventional and innovative justice responses to sexual violence

Kathleen Daly

Published by the Australian Institute of Family Studies, September 2011, 35 pp. ISBN 978-1-921414-79-4, ISSN 1833-7856 (print), ISSN 1833-7864 (online)

Download printable version Conventional and innovative justice responses to sexual violence (PDF 1.7 MB)

Download printable version Appendix: Inventory of responses to sexual violence (PDF 381 KB)

Despite 30 years of significant change to the way the criminal justice system responds to sexual violence, conviction rates have gone down in Australia, Canada, and England and Wales.1 Victim/survivors continue to express dissatisfaction with how the police and courts handle their cases and with their experience of the trial process. Many commentators and researchers recognise that the crux of the problem is cultural beliefs about gender and sexuality, which dilute and undermine the intentions of rape law reform.2 These beliefs affect victims adversely, but at the same time, increased criminalisation and penalisation of offenders is not likely to yield constructive outcomes.

This paper reflects on the limits of legal reform in improving outcomes for victim/survivors. Given the extent of reform to procedural, substantive, and evidentiary aspects of sexual assault legal cases, we may have exhausted its potential to change the response to sexual assault. We may need to consider innovative justice responses, which may be part of the legal system or lie beyond it.

There is increasing scepticism that reform of rape law alone can change victims’ experiences appreciably. Stubbs (2003) has suggested that while legal reforms may have “symbolic value”, they are “likely to be limited in effectiveness” because of the “resilience of cultural mythologies about women and about sexuality” (p. 23). Koss (2006) has made a bold “call for action” (p. 224) for considering alternatives to conventional criminal justice, including restorative justice conferences; and Naylor (2010) has proposed a restorative justice conference model, along with a specialist court. Edited collections on gendered violence and restorative justice have canvassed the views of academics and practitioners (Ptacek, 2005, 2010; Strang & Braithwaite, 2002), many of whom support the development of alternatives. Those in the victim support and advocacy sector have also contributed to this shift in perspective (Amstutz, 2004; Achilles, 2004; S. Herman, 2004; Worth, 2009).

In this paper, I consider a range of responses to sexual assault: those that exist both within and outside the legal system. Rather than one justice pathway for victim/survivors, a menu of options and varied pathways is required. Since 1994, I have been researching the benefits and problems of using restorative justice in sexual assault cases (Braithwaite & Daly, 1994; Curtis-Fawley & Daly, 2005; Daly, 2002a, 2006a, 2008; Daly & Curtis-Fawley, 2006; Daly & Stubbs, 2006; Proietti-Scifoni & Daly, 2011). Over time, I have observed increasing interest to consider justice alternatives.

This Issues paper considers a range of approaches, programs, and practices that have been proposed or used (nationally and internationally) to improve criminal justice system efficacy (e.g., conviction rates) and victims’ experiences in the aftermath of sexual assault—both within and outside the legal process. I identified 48 types of responses, which reside on a continuum, ranging from conventional to innovative. The continuum reflects the dynamic qualities of justice practices as conventional–innovative hybrids are emerging.

Conventional justice responses are concerned with better ways to gather evidence and prosecute cases, and to provide better services and supports for victims. Innovative justice responses are a variety of newer practices that seek to address victims’ “justice needs”, including an acknowledgment of wrongdoing and mechanisms of redress or repair (see Box 1).

Part I of this paper reviews the research literature about sexual assault law reform and its limits. Part II defines key concepts of conventional and innovative justice responses, formal and informal justice, and victims’ justice needs. It demonstrates the need to think broadly about innovation and not to be confined to one idea such as restorative justice. This part presents and analyses 48 conventional and innovative justice responses to sexual assault, and assesses the evidence on them. Part III outlines six areas that need to be addressed to enhance justice outcomes for victims of sexual assault.

Author

Kathleen Daly is a Professor in the School of Criminology and Criminal Justice, Griffith University.

Acknowledgements

Research for the project was supported, in part, by an ARC Discovery Grant, “Innovative Justice Responses to Sexual Violence: A Global Analysis” (DP0879691, 2008–2011), for which I am grateful. My thanks and appreciation to Brigitte Bouhours and Anne-Marie Tripp for their assistance and care in helping me write and revise the paper and appendix.

Footnotes

1 England and Wales is one jurisdiction with respect to criminal law, crime, and justice (some exceptions may relate to local police matters in Wales). Scotland and Northern Ireland are also distinct jurisdictions; together the three comprise the United Kingdom. With some exceptions, all the research reported here comes from England and Wales.

2 For example, reports by the Tasmanian Law Reform Institute (TLRF) (2006) and the Australian Law Reform Commission (2010) noted that despite the removal of mandatory warnings about the credibility of complainants and delayed reporting of complaints, it is still for judges to make assessments about reliability and credibility of the witness in particular cases. Therefore, the effectiveness of the reforms has been eroded by subsequent judicial interpretation and developments in the common law” because trial judges appear to be pre-emptively warning juries about the quality of the evidence to avoid appeal challenges (TLRF, 2006, p. 3).

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