Caroline

Briefing for Mark Latham

Prepared and Presented by Caroline Taylor

In 21^st century Australia, we are able to predict, given the current statistics, that 1 in 3 girls and women have experienced some form of sexual violence so far in their lives.   They will experience this form of violence not from strangers, but from males either related or known to them. One of the biggest risk factors for child sexual abuse is living in an intact family where the perpetrator is more likely to be the father or stepfather.

The immediate and long term impact of sexual violence on women and children is still poorly understood and responded to. Sexual violence has serious impacts on their physical, emotional, economic and social well-being.

In 21^st century Australia, women and children continue to lack so much confidence in the police and judicial system, that it is estimated that only one in 10 will ever report their sexual victimization.

Reflecting this stark reality is the fact that the attrition rate for reported offenses is such that in some states less than 5 per cent of reports ever make it to court and of those, less than 2 per cent will result in a conviction. Of those convictions, research suggests that many of those convictions will be successfully overturned on appeal.

In 21^st century Australia, women and girls continue to suffer the health, emotional, social and financial burdens that are deeply implicated with the sexual crimes perpetrated upon them. The best the state, territories and federal governments have done for them is offer them a handful of chits to attend counselling.

This is the life of some many children and women victim/survivors in 21^st century Australia.

As committed women working in this field across all levels we cannot achieve alone, the type of socio-cultural change and socio-legal reforms needed. We need leadership from those men who continue to enjoy the power, leadership and status still denied women. We need these men to have the courage, commitment and shared insight, to take something of our vision, our ideas and our intentions to create the necessary change that will enable women to be considered citizens of equal worth in this county.

1. Statistics around sexual violence are only helpful in presenting a tip of the ice-berg knowledge of the level of reported victimization of women and children. Official reports reflect only a minority of those victimized in sexual violence given the reality of the under-reporting of sexual violence.

Barriers to reporting include the pervasive fear among victim/survivors that they will not be believed should they disclose, and worse still, that they may be blamed for the assault/s. These fears stem from pervasive community and institutional attitudes, such as those found in law. A study conducted by the Office of the Status of Women in 1995 found that discriminatory attitudes and stereotypes about women, children and sexual abuse continue to find purchase within the community. Recent surveys have identified the maintenance of such attitudes towards women and sexual violence.

The Women’s Safety Survey (ABS 1996) asked women about any experiences of sexual violence they had experienced since the age of 15 years. From this survey it was estimated that 1.2 million Australian women has experienced at least one incident of sexual violence. Moreover, victim reports over-whelmingly identified offenders as either being related or known to them, dispelling the continuing social myth that sexual victimization is perpetrated by a ‘stranger.’

2. The legal response across Australian jurisdictions towards sexual violence is appalling. It is difficult enough to encourage women and children to disclose their victimization and follow it up with a police report. The attrition rate of reported incidents of sexual assault is deeply disturbing though not surprising as women and children encounter barriers and discrimination that impede their ability to access the criminal justice system. For example, in South Australia in 2002 there were 628 rapes reported to police (this does not take into account other forms of sexual assault). In the same year, of the smaller number of cases that eventuated to trial, only 1.8 per cent of those cases resulted in a conviction.

Statistics from Victoria in 1998 and 1996 showed figures of 22,000 women and 34,000 women identifying various forms of sexual assault perpetrated upon them by men, with less than 7 per cent of these figures becoming police reports and less than 5 per cent resulting in a conviction. The 2003 Victorian Law Reform Commission Interim Report on Sexual Offences makes clear the low rate of convictions for sexual offences and highlights that over the past decade, conviction rates have actually lowered, despite a significant increase in reported sex offences. In Canberra in 1993/94 of 500 sexual offence cases reported to police only seven went to trial and of those seven, there was not one conviction.

Given the gendered nature of sexual violence, women and children are predominantly victims, with males overwhelmingly identified as offenders. Many studies continue to identify that the highest category of risk for child sexual assault is the home environment with biological fathers more likely to be the offender, followed by stepfathers and then grandfathers and uncles.My own research on child sexual abuse shows that children sexually abused by either a parent or other relative struggle to obtain a conviction. This fact is supported by other statistical research.

Stop thinking about sexual assault as statistics. The women and children represented in these statistics are our grandmothers, our mothers, our sisters, our Aunts, our nieces, our friends, our neighbours, our colleagues.

3. I want to give a very brief over-view of our legal system in the 21^st century with regards its response to victim/survivors of sexual abuse across all Australian jurisdictions:

Time delay in getting trial: From the time of making a police report, it is common practice for victim/survivors, including young children to wait between fifteen months and 5 years before the case proceeds to trial.

Delayed Disclosure: despite a recognition of this trauma-genic feature of sexual assault, especially child sexual abuse, legal trials continue to be a site where victim/survivors are verbally berated, harangued and humiliated for failing to make an immediate outcry and frequently accused of being a ‘liar’ because of this delay.

Corroboration Warnings: Lord Matthew Hale, an 18^th century English Jurist enshrined a legal edict that judges would warning juries that the lone testimony of a woman or child alleging sexual abuse could not be trusted, given the apparently natural propensity for women and girl children to lie. Thus, juries were invited to look for independent corroborating evidence to support the alleged victim and to ‘scrutinize’ with great care the evidence of women and girls. Efforts at reform to remove this discriminatory warning has succeeded only in legislative tinkering around the edges to rephrase parts of the warning. However, judges continue to have ‘discretion’ as to the strength of language they will incorporate into the warning. Since rape and sexual assault are covert crimes, the absence of independent corroboration is not surprising. However, warning is used in cases even where independent evidence corroborates the victim/survivor. In 2001 the High Court enunciated, in the case of R v Doggett, that the corroboration warning should continue to be given as a blanket warning in all sexual offence trials, regardless of corroborating evidence. In essence, the words of women and children will continue to be weighted with this misogynist and archaic legal precedent that identifies them as a citizens who are not equal worth in the eyes of the law. The NSW Woods Royal Commission noted the discriminatory value of corroboration warnings in eschewing the credibility of women and children victim/survivors in sexual offence proceedings.

Legal trials infused with discriminatory stereotypical narratives about women and children: A 1998 report of the New South Wales Law Reform Commission acknowledged that judicial proceedings around sexual-offense matters had involved “sexist assumptions” by the judiciary, allowing sexist claims about alleged victims to become relevant to trials where such relevance should not be at issue. The importation of untested hypotheses and derogatory assumptions about women and children continues to be a mainstay across all sexual offence proceedings and has been extremely well documented in feminist and other research.

Introduction of sexual history evidence against adult and child victim/survivors in sexual offence proceedings occurs frequently in trials, enabling the character assassination of women and children and promotes prejudicial stereotypes of such witnesses as sexually promiscuous, unsavory in character and less trustworthy.

Judicial discretion to limit and decontextualise the evidence of victim/survivors is unjust. It inhibits a jury from being able to understand the context and lived experience in which the alleged abuse occurs. Victim/survivors also report the added distress they feel when they are asked questions that they cannot properly answer because of the limitations placed upon them.

Child witnesses suffer enormously through the adversarial system. Research has documented the enormous distress children suffer through aggressive and demeaning cross-examination in which children are frequently accused of being ‘liars’. The formalized language, deliberate use of complex questions and language create confusion for child witnesses and it is not uncommon for this to occur without any judicial intervention. There is abundant anecdotal evidence of children becoming so distressed they have vomited, fainted and become so distressed they have been unable to continue with their evidence. All of these affect the quality of evidence children give.

Routine disqualification of compelling collateral evidence to support victim/survivors of sexual abuse under the mantra of judicial discretion.

Sentencing: continued invisibility of the victim/survivor’s voice in a forum where it is supposed to be amplified given the conviction of the offender. Vocabulary of excuses for offenders which continue to perpetuate masculinist views about men’s sexual offending against women and children and the often minimal sentences handed down.

Appeals. Evidence in some research suggests that appeals against conviction in sex offences have a high success rate and can be linked to the entrenched judicial culture that disbelieves women and children.

In many instances, the treatment of children in legal trials clearly violates the United Nations Rights of the Child charter for which Australia is a signatory.

4. Social impacts of sexual violence: sexual abuse of children is linked to the propensity for many survivors to experience revictimisation of sexual assault and other forms of violence in later years. Youth homelessness, depression, suicidal ideation and prostitution are examples of the social impact that child sexual abuse can have on young people as a direct consequence of child abuse.

Difficulty maintaining engagement with education is another factor linked to the trauma of child sexual abuse.

It is not uncommon for supporting mothers of children sexually abused within the family unit, to suffer various forms social exclusion and financial hardship as a consequence of supporting their children.

Victim/survivors of intrafamilial sexual abuse are prone to suffer the abuse long term given the dynamics of the abuse being perpetrated by a parent or other relative, within the family unit. The implications for this are deeply disturbing and wide ranging and have not been well documented in research.   Teenage pregnancies and abortions; choosing homelessness to escape the abuse; suffering depression and low self-esteem; failure to achieve or remain engaged with educational institutions; intense feelings of shame and distress and for those who do finally disclose, the vast majority experience various forms of familial and social exclusion as family members close ranks around the perpetrator in order to protect the family from the victim’s disclosures.

Women are the highest uses of health services with health practitioners only now beginning to realize the link between women’s health and well-being and sexual assault and domestic violence.

Women survivors of sexual abuse experience high levels of anxiety and depression when accessing invasive health practices such as maternal and pre-natal health services, breast examination and cervical screening. The affects include higher rates of depression and in many cases, women avoid being proactive around their reproductive and breast health as a consequence of the long term impacts of sexual abuse, especially child sexual abuse. This means women not only find it distressing to undergo many medical procedures but many are not being proactive around their health and actually avoiding health services around these issues. The result is women endangering their health as a result or suffering ongoing and unchecked, emotional suffering through their interaction with health services.

Social death and exclusion. Can be exacerbated in rural communities. An appalling lack of research on identifying factors across the spectrum that impact on the lives of victim/survivors of sexual abuse.

If we want to know of the long term wellbeing of women and children in Australia who have experienced sexual abuse, we need to know the long term impacts of the sexual violence inflicted upon them.

5. Strategies:

A government committed to engaging with all jurisdictions to create substantive law reform to address deeply embedded discriminatory practices in law. First and foremost is a commitment to repeal the need for corroboration warnings in sex offense trials on the basis that it discriminates specifically against rape and sexual assault victims. Repealing this federally would impact across all jurisdictions in Australia.

Address the appalling practice of long delays in cases getting to trial. The long delays affect the ability for children and women to heal and in some cases, it has been suggested that children and women are being advised against full access to counseling until after the trial, because of the very real fear that access to counseling is used against women and children in court. The delays prevent the victim/survivor from moving on and trying to heal and the delays have the very real propensity to affect the quality of evidence given by victim/survivors because of the delay. Some anecdotal evidence suggests that defence lawyers often seek to deliberately delay cases in the hope the child or woman will give up. A minimum time frame should be set for these cases, for example, once charges have been laid, the case should proceed to the appropriate court within four months.

Remove the need to committal hearings before a case can proceed to trial. Committal hearings are used as a fishing expedition by lawyers to obtain information that might be used against the child or woman at a trial. They are also used as a tactic to intimidate and attack the child or woman in the hope they will withdraw from the case and not proceed to trial. Some lawyers have noted the usefulness of this tactic as a successful way of ensuring a child or woman does not proceed to trial. There is good anecdotal evidence to show the success of this tactic with victim/survivors, especially young children.

Remove wigs and gowns. They are archaic and intimidate witnesses, especially children.

Examine the role of judicial discretion in sexual offence proceedings especially with regard to the application of prior sexual history evidence, corroboration warnings and stifling the evidence of victim/survivors.

Establish clear guidelines that respect the rights of women and children in cross-examination to prevent frequent examples of unconscionable aggressive in defence cross-examination of women and children. This will require substantive reform as well as greater emphasis on judicial training and education. Consider the benefit of alternative forms of giving evidence in these trials. Some states have moved in this direction, but it remains inconsistent. Other European jurisdictions are more advanced around the treatment of children in sexual offence proceedings.

Develop a specialist list for judges and prosecutors, to hear and try sexual offence cases.

This ensures that the most appropriately trained judges and lawyers are involved in these cases.

Stronger, more focused and integrated community education of violence against women with specific emphasis on addressing masculine socialization across the social spectrum incorporating strategies in school education, film and media, sport, literature, politics, employment and community education.

Establish programs and focus and commit funding to assist children and adult victim/survivors to ensure pathways for them remain open, valid and supportive.

Address the health needs of victim/survivors to both promote respectful health and medical treatment for those with special needs, and enables women to be proactive and confident in monitoring their health.

Select References:

Fergusson, D. and Mullen, P. (1999) “The Prevalence of Sexual Abuse During Childhood”, chapter 2 in Fergusson, D. & Mullen, E. (1999) Child Sexual Abuse: An Evidence Based Perspective, London.: Sage. Pp. 35-48.

Neame, A. and Heenan M. “What lies behind the hidden figure of sexual assault?” Briefing. No. 1, September 2003.

Lievore D. (2003) Non-Reporting and Hidden Recording of Sexual Assault: An international review. Report prepared by the Australian Institute of Criminology for the Australian Government Office of the Status of Women, Australian Institute of Criminology, Canberra.

Office of Crime Statistic and Research, Crime and Justice in South Australia 2002.

Taylor, C. thesis

Taylor, C. (in press) Court Licensed Abuse: patriarchal lore and the legal response to intrafamilial sexual abuse. New York: Peter Lang

Taylor, C. (due out September 2004) Surviving the Legal Process. Melbourne: Coulomb Press.

D’Arcy, M. (1999) Speaking the Unspeakable: Nature, Incidence and Prevalence of Sexual Assault in Victoria. CASA House : Melbourne.