Sexual Assault (HSC SSCE Legal Studies): Revision Notes
Sexual Assault
Introduction
Sexual assault law reform in NSW demonstrates how the legal system responds when criminal justice outcomes fail to meet community expectations. The tension between protecting victims' wellbeing and preserving the accused's right to a fair trial has driven significant legislative and procedural changes over the past two decades.
Sexual assault is a general term covering criminal offences involving unwanted sexual contact, including unwanted touching, groping, indecent acts, and rape. These offences have historically been the least reported crimes in NSW, with the lowest conviction rates across all crime categories.
Key terminology
Complainant: A person alleging that a sexual assault has been committed against them.
Consent: Free and voluntary agreement by a rational person who is able to understand and make a decision about the matter to which they agree. This definition is central to sexual assault law.
In camera: (Latin) Proceedings held privately, where only specified persons such as the judge may be present during testimony or proceedings.
Conditions that led to law reform
The justice gap in sexual assault cases
The criminal justice system's primary aim is to prosecute offenders on behalf of victims and the community. However, significant concerns emerged that the system was failing to deliver just outcomes in sexual assault cases, prompting comprehensive law reform.
Statistical evidence of system failure
Data from the Australian Bureau of Statistics (2014) revealed alarming trends:
- Sexual assault victimisation rates reached a five-year high of victims per persons
- of sexual assault victims ( victims) were female
- Young people aged years and under accounted for ( victims) of all sexual assault victims
Sexual offences remain the least reported crimes in NSW, with delays in cases contributing to extremely low victim satisfaction rates.
The under-reporting crisis
The Australian Law Reform Commission identified under-reporting as a critical barrier to effective legal response. In their report Family Violence – A National Legal Response, the Commission emphasised that the vast majority of sexual assault incidents never come to the attention of the legal system. This problem is particularly acute in family violence contexts.
Understanding under-reporting is crucial because only estimates can approximate the true incidence of sexual assault. Organisations such as Rape and Domestic Violence Services Australia and the Australian National Research Organisation for Women's Safety provide essential data on domestic and sexual violence against women.
Factors contributing to under-reporting
Several interconnected factors discourage victims from reporting sexual assault:
Perceived futility: Many victims believe they would not win a court case or that prosecution would be too difficult emotionally.
Relationship to offender: In 70% or more of cases, the offender is known to the victim, making proof significantly more difficult. When the victim knows the attacker, much of the case relies on one person's word against another unless convincing physical evidence exists.
Lack of support services: Historically, there was no established system for addressing victims' multiple needs, including translation services, mental health support, accommodation, and counselling.
Prosecution decisions: The Director of Public Prosecutions will generally only prosecute if there are prospects of conviction and it is in the public interest. Cases involving strangers are more likely to proceed because it is easier to establish non-consent, assaults are often more severe, and stronger physical evidence is typically available.
Evidential challenges
Physical evidence collection poses major obstacles. Victims generally need to undergo physical examination and detailed questioning to obtain evidence usable in court. This process can be re-traumatising and deter reporting.
Resource constraints have also been problematic. There was a real lack of state resources provided to doctors working in sexual assault services. The NSW Department of Health commenced training for Sexual Assault Nurse Examiners in 2004, though some viewed this as a resource efficiency measure rather than genuine improvement.
The attrition problem
Research by Jacqueline Fitzgerald from the NSW Bureau of Crime Statistics and Research found alarming attrition rates:
Critical Attrition Statistics:
- In NSW, the number of sexual offences reported to police exceeded proven charges by approximately ten to one
- Only approximately 8% of sexual offences against children and 10% of recorded sexual offences against adults reported to police are ultimately proven at court
- The 2012 national Personal Safety Survey reported that approximately 20% of women who had experienced sexual violence by a male offender had reported it to police (only 1% improvement from 2005)
Given estimates of unreported incidents, these conviction rates represent only a tiny proportion of actual occurrences, raising serious questions about why sexual assault cases fare so poorly compared to all other crime categories.
Agencies of law reform
The Criminal Justice Sexual Offences Taskforce
Established in 2004 by the NSW Attorney-General, this Taskforce investigated issues relating to sexual assault and prosecution of these crimes. Its mandate was to advise the Attorney-General on how the criminal justice system could become more responsive to victims without undermining the accused's right to a fair trial.
The Taskforce sought input from a broad cross-section of government and non-government organisations to obtain various viewpoints on the criminal justice system. It produced 70 recommendations for implementation, resulting in new legislation from 2005 onwards.
The NSW Government also commissioned the Australian Institute of Criminology (AIC) to investigate whether giving evidence via closed-circuit television altered jury reception of evidence or reduced empathy for victims or the accused. The AIC found no real difference in jury responses, supporting the introduction of this technology for traumatised victims who did not want to be in the same room as the accused.
Rape and Domestic Violence Services Australia
This organisation has been at the forefront of reforms to how sexual assault matters are handled within the criminal justice system. Its functions include:
- Providing support services and information about where to get help
- Undertaking educational functions through research
- Linking to other bodies across Australia
- Providing support and counselling for anyone who has experienced sexual violence
The NSW Bar Association
The professional organisation for barristers in NSW has rewritten its own rules for cross-examining alleged victims in sexual assault matters. Questions that belittle, confuse, or mislead victims are now banned. The aim is to prevent attacks on victims during courtroom proceedings.
The media
Criminal cases involving sexual assault have received significant media attention over the past decade. The media's influence on public opinion, law organisations, and governments has resulted in changes improving the treatment of victims in court.
Media coverage has graphically portrayed victims being forced to recount their experiences repeatedly and defence counsel badgering victims in cross-examination to undermine their credibility. This has horrified the public and many in the legal profession.
However, media involvement has produced mixed results. Whilst positive reforms have occurred, less desirable outcomes include the rights of the accused receiving fairly low importance and exploitation of public prejudices.
Mechanisms of law reform
Parliamentary legislation
The New South Wales Parliament has passed numerous Acts to reform sexual assault law. Key legislation includes:
Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 (NSW)
This Act amended the Criminal Procedure Act 1986 (NSW) to provide that pre-trial orders made by a judge in sexual offence proceedings are binding on whatever judge presides at trial. This ensures rulings on evidence admissibility by a judge other than the trial judge bind the trial judge, minimising delays in criminal proceedings commencement.
The legislation was designed to minimise stress and trauma on complainants who must prepare themselves to give evidence each time a trial is scheduled and rescheduled.
Criminal Procedure Amendment (Evidence) Act 2005 (NSW)
This Act amended the Criminal Procedure Act 1986 (NSW) to allow transcripts or recordings of a complainant's evidence in any retrial. If evidence is admitted in a retrial, the complainant cannot be forced to give further evidence unless they choose to do so.
Criminal Procedure Further Amendment (Evidence) Act 2005 (NSW)
Certain provisions were designed to ensure improper questions were not put to complainants during cross-examination. It provided for evidence to be given in camera (privately) and for support people to be close to complainants when giving evidence.
The Act introduced a new section into the Criminal Procedure Act 1986 preventing an unrepresented accused from cross-examining the complainant.
Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (NSW)
This landmark legislation addressed the critical issue of consent. A person's lack of consent and knowledge that the person is not consenting are elements of sexual assault offences such as rape.
Revolutionary Change in Onus of Proof:
The Act clarified that if someone is under the influence of alcohol or drugs, there may be no capacity to give consent. Crucially, the Crimes Act 1900 (NSW) was amended to place the onus on the defendant to prove there was consent. Previously, the prosecution bore this responsibility.
In court, an accused must now be examined by the prosecution on what steps they took to ensure there was consent.
Court-led reforms
Whilst recommendations of the Criminal Justice Sexual Offences Taskforce have changed how judges and courts handle serious sexual assault matters, these changes have largely been brought about through legislation. However, changes in social attitudes regarding sex crimes will likely lead to future court decisions rethinking the law or examining criminal law issues in ways that lead to further law reform.
Judges in cases resulting in guilty verdicts have handed down severe penalties to send messages of general deterrence to the community and reflect the severity of offences. For example, Bilal Skaf, convicted as ringleader in a series of gang rapes in Sydney in 2000, received a sentence of years' imprisonment with a -year non-parole period (reduced on appeal).
Specialist Courts Proposal:
Specialist courts for sexual offences have been suggested to lessen trauma suffered by victims when giving evidence and improve conviction rates. Features of such courts would include:
- Appropriate technology (such as closed-circuit television)
- Facilities (such as separate entrances for defendants and victims)
- Specialised case management processes using specially trained judges and prosecutors
- Screening processes and other supportive features
Recent developments
By 2015, victims of sexual assault could give evidence via closed-circuit television, with the victim speaking to a camera shown on a television screen in court. This means victims do not have to enter the courtroom to give evidence.
Furthermore, if there is an aborted trial, hung jury, or retrial, the recording from the first trial can be re-used, saving victims from giving evidence a second time. The law specifies that in a following trial, the 'best copy' of evidence-in-chief and cross-examination can be used, whether written transcript, audio recording, or video recording. Such changes attempt to reduce further traumatisation of victims in these trials.
Government approaches to addressing sexual violence
Substantial government funding has been directed towards dealing with sexual violence using a range of different approaches.
Ministerial portfolios
In April 2015, the NSW government appointed Pru Goward to the new role of Minister for the Prevention of Domestic Violence and Sexual Assault, the first Australian state to introduce such a portfolio. Two months later, Yvette Berry became the ACT Government's inaugural Coordinator-General for Domestic and Family Violence.
Specialist courts
Queensland began trialling a specialist court for domestic and family violence on 1 September 2015, set up within the Southport Magistrates Court. The hope is that having a magistrate familiar with the issues and more focused support services will make it easier for victims to deal with the legal system. The ACT government has also considered this approach.
The NSW Attorney-General, Gabrielle Upton, stated that rather than setting up a specialist court, the State Government prefers to apply consistent best practices across all courts when dealing with sexual assault. This means that regardless of location, victims will receive the support they need.
For example, the Criminal Procedure Amendment (Domestic Violence Complaints) Bill 2014 allowed domestic violence victims to pre-record their evidence in video rather than being present in the courtroom.
National coordination
Because different state governments take different approaches, there is risk that different standards may be applied to sexual offenders. However, a national outcomes standard for perpetrator interventions is being implemented. The Council of Australian Governments is also aiming to agree to a national domestic violence order scheme, meaning orders issued in one state will be recognised and enforced across the country.
At Federal Government level, funding of nearly $400 million has been allocated to federal and other joint projects as part of the National Plan to Reduce Violence against Women and their Children 2010–2022.
Supporting vulnerable groups
A key area is supporting Indigenous and migrant women, and women with limited English skills. These groups have increased difficulty navigating the legal system and achieving justice. The intention is that by mid-2016, a national framework, including a training package, will be available for judicial officers and court personnel to increase understanding and management of issues faced by these women.
Additionally, $4 million extra funding has been allocated to 1800RESPECT, the 24-hour, 7-day professional online and telephone sexual assault counselling service, in response to increasing demand.
Effectiveness of law reform
Assessment of reforms
The low reporting rates for sexual crimes and consequently low numbers of offenders successfully prosecuted were serious concerns to the NSW Government and community. Legislation passed from 2005 onwards has attempted to address this problem. The chief task is ensuring victims are not further traumatised by the court process whilst protecting the accused's right to a fair trial.
Changes to consent law
Changes to the law of consent in late 2007 may deliver a significant shift in outcomes for complainants. In the vast majority of matters where the accused is known to the complainant, reversing the onus of proof regarding consent may make it more difficult for the accused to deny criminal responsibility. This may in turn encourage more victims to report offences.
As the new laws are applied in courts, there will be more information for assessing whether the requirement of 'reasonable grounds' for believing there was consent will unfairly prejudice juries against defendants.
Implementation progress
State governments have implemented at least two-thirds of the 70 recommendations of the Criminal Justice Sexual Offences Taskforce. Additional measures introduced include:
- Continuing efforts to address delays in sexual assault matters, with the District Court introducing mandatory timetables
- Closing court when victims are giving evidence
- Complainants can use remote witness facilities in 78 locations across the state
- Judges are required to disallow improper cross-examination questions
Continuing challenges
Issues raised suggest these reforms are having limited practical impact. A NSW Bureau of Crime Statistics and Research report noted:
In nine out of 10 cases of sexual assault reported to NSW Police, however, the victim and offender already know each other. In many cases they are partners or former partners. ... [T]he capacity of the police to lay charges and clear the offence in these circumstances depends greatly on whether the victim is willing to give evidence and whether there is any corroborating evidence, such as injury to the victim.
The need for cultural change
Continuing education and reforms to the criminal justice system will be necessary to improve reporting and evidence collection to assist in more successful prosecutions, whilst balancing the rights of the accused against those of the victim and community.
Sexual assault crimes are crimes of violence, and certain beliefs about gender in our society need to be articulated and challenged if these crimes are to be properly addressed by the criminal justice system. More challenging, but vitally important, is the need for an attitudinal shift. Over recent decades, Australian attitudes towards victims have improved significantly, but there is still room for behavioural change in the level of reporting of sexual assault.
Measuring success
Success in this area could be measured through:
- Increased reporting rates of sexual assault to police
- Improved conviction rates for sexual assault offences
- Reduced attrition rates throughout the criminal justice process
- Higher victim satisfaction with the legal process
- Shorter delays in bringing cases to trial
- Greater willingness of victims to testify in court
Relevant legislation
Important legislation:
- Criminal Procedure Act 1986 (NSW)
- Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 (NSW)
- Criminal Procedure Amendment (Evidence) Act 2005 (NSW)
- Criminal Procedure Further Amendment (Evidence) Act 2005 (NSW)
- Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (NSW)
- Crimes Act 1900 (NSW)
Significant cases:
- R v Anon (Gang-rape case)
- R v MM [2002] NSWCCA 58
- R v Mc
- R v Mak and others
- R v BS and MS (Gang-rape trial)
Remember!
Key Points to Remember:
- Sexual assault is the least reported crime in NSW with the lowest conviction rates – only approximately 8–10% of reported sexual offences are ultimately proven at court
- Under-reporting is driven by multiple factors: perceived futility, relationship to offender (known in 70%+ of cases), lack of support services, and evidential difficulties
- The Criminal Justice Sexual Offences Taskforce (2004) produced 70 recommendations that drove major legislative reform
- Key reforms include pre-trial binding orders, use of transcripts/recordings in retrials, in camera evidence, prohibition of improper cross-examination, and closed-circuit television testimony available in 78 locations
- The 2007 consent law amendment reversed the onus of proof – defendants must now prove there was consent, rather than prosecution proving lack of consent
- Multiple agencies drove reform: Criminal Justice Sexual Offences Taskforce, Rape and Domestic Violence Services Australia, NSW Bar Association, and media pressure
- Effectiveness remains limited – reporting and conviction rates show minimal improvement, indicating need for continued reform and cultural change
- Balancing victims' rights and wellbeing against the accused's right to a fair trial remains the central challenge
Key terms: Sexual assault | Complainant | Consent | In camera | Under-reporting | Onus of proof | Closed-circuit television | Pre-trial orders
Critical framework: The sexual assault law reform framework demonstrates the interplay between conditions (low reporting/conviction rates) → agencies (Taskforce, advocacy groups, Bar Association, media) → mechanisms (parliamentary legislation, court procedures) → effectiveness (limited improvement, ongoing challenges), highlighting the tension between victim protection and fair trial rights.