15th Greek Australian Legal and Medical Conference
Thessaloniki, Greece 2015

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Responding to sexual assault - is there a place for restorative justice?

The Honourable Justice Marcia Neave AO

Since the 1970’s women and some men have campaigned for changes to the way the criminal justice system responds to sexual assault. These changes have been designed to make it easier for victims of sexual assault to report these crimes, and to ensure that alleged offenders are prosecuted and convicted.  Despite these changes, which have been made in many English speaking countries, there are still major limitations in the way the criminal law deals with sexual assault.

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In this talk, I will argue that alternatives other than the criminal law should be made available to women and children affected by sexual assault. These processes are usually described as restorative justice responses.

Restorative justice is a process which allows the victim to tell others what has happened to them, to have the harm acknowledged by others and, ideally to receive some recompense which could range from a genuine apology to monetary compensation.  The most famous example of a restorative justice approach was the South African Truth and Reconciliation Commission, which enabled perpetrators of appalling apartheid related crimes to describe what they had done and victims to describe the effect which these crimes had had on them.

The most common form of restorative justice is often known as conferencing. Professor John Braithwaite who has written extensively about this process, which has been used for some crimes in the ACT, calls it re-integrative shaming.

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Let me now turn to the dimensions of the problem.  Sexual assault is a wide spread and particularly damaging crime.  Prevalence studies undertaken by the Australian Bureau of Statistics show that approximately 17% of all women and 4% of all men over the age of 15 years have experienced sexual assault at some time.

There are no reliable figures on the extent of sexual crimes perpetrated against children. However as the evidence to recent Royal Commissions in many countries across the world have shown, offending against children has been a pervasive phenomenon which often has lifelong effects on its victims.  Some other information about sexual assault is depicted on this next slide.

The statistics, such as they are, clearly show that the criminal justice system only deals with the tip of the iceberg of sexual offending.

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As the slide shows, most sexual offences never are reported. Fewer still are prosecuted and only a small proportion of these result in a conviction for any offence.  In that context I note that in some cases where a conviction follows the accused will be convicted of a less serious offence, for example an offence based on touching alone instead of the more serious offence of rape.

Why do victims not report offences to the police?  When they do report why do reports not result in successful prosecution and conviction?

Victims are often reluctant to report offences because they are fearful they will not be believed. If the victim is an adult who was offended against by a family member as a child, their own family may not believe them or threaten to cut off contact if a report is made to the police. The victim will often want to ensure the person cannot offend against others, but may not want them to go through a criminal trial.   For example, a person who was sexually assaulted as a child by a family member may be reluctant to have the offender jailed when he is now very old.    They may also be fearful of the offender, who may have threatened them if they disclose the offending.   Victims also face significant barriers in the criminal justice process. 

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Even if an offence is reported the prosecuting authority may consider that there is insufficient evidence to justify prosecution.  People who have a disability frequently experience sexual assault, but the prosecuting authority may not think that they will be able to give persuasive evidence.  The same applies to young children, who may unable to recall precise details of the offending and may be confused by cross-examination even when it is sensitively conducted.  Very often there is no physical evidence of sexual assault even when penetration occurs. Some of the other reasons why prosecutions may not occur or may not result in a conviction, are as follows:

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We know that prosecutions for rape often result in acquittal. The Australian figures are as follows: An analysis of rape prosecutions in five countries by Kathleen Daly and Bridge Bouhours showed that patterns are similar elsewhere. The high acquittal rate persists despite changes to the rules of evidence, which, in the past allowed evidence of a woman’s prior sexual history can be put to the jury and which required corroboration of rape.

The fundamental problem in this area is that very often the only evidence of the crime is that of the victim and the offender. The offender may deny he had sex with the victim or may argue that she agreed to have sex, so that the case will require a jury to decide who is telling the truth- that is the case is one of oath against oath.   Historically that problem was compounded by the myth that women commonly fabricated claims of sexual assault and pursued innocent men through the criminal justice process. Of course I do not deny that false allegations sometimes occur, but all the evidence shows they are very rare and that it is under-reporting which is the real issue. A 2002-2003 study by Heenan and Murray indicated that police believed that only 2.1% of rapes reported to the police were false.

The problems which arise in prosecuting alleged offences are particularly acute where the alleged offending occurred many years previously, and  supporting circumstantial evidence is no longer be available.    In such cases a conscientious jury may well consider that the case against the accused has not been established beyond reasonable doubt.

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Those who support giving victims a choice to pursue a restorative justice approach point out that the criminal justice process cannot help victims who do not report the offence or do not want to give evidence against an alleged offender.

By contrast, if the victim chooses to do so and the offender is prepared to admit the alleged events, a conference can enable a victim to tell their story and have their pain publicly acknowledged.  An admission by the offender may help a victim whose family has always refused to believe that the events occurred, even where there is insufficient evidence for prosecution.  This can have a considerable therapeutic benefit for the victim. A few years ago a man who had been systematically abused when he was a child by a male family friend was awarded civil damages in the Supreme Court of Victoria. It was clear that the fact that the exposure of the crime and the fact that his family then had to accept that it had occurred, had helped him psychologically. Victims often want to tell others about the crime to protect other family members from offending in the future.

Other possible advantages of a restorative justice approach are that: (see slide 7)

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Critics of this approach are concerned that the failure to prosecute may send the message that sexual assault is a private matter, particularly when it occurs within a family.  Most of the reforms in the criminal laws which operate in this area are the result of long campaigns by women to have such offences be treated seriously.  If a restorative justice option is available it is possible that the victim will be pressured by his or her family to take this option.

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There is a concern that restorative justice will be seen as a soft option.  Politicians often exploit public fears about crime by enacting new offences and increasing sentences, thought there is little evidence that these strategies work.  Governments which have played the law and order card are unlikely to support restorative justice because the Opposition may portray it as going soft on crime.

The difficulty with these criticisms is that they are based on a false comparison.  This compares conferencing with an ideal criminal justice process in which crimes are inevitably reported and those who have offended are always prosecuted and convicted.

But of course, the application of the criminal justice approach to sex crimes does not produce ideal outcomes.  That is the reason why many groups who work with victims of sexual assault have accepted the need to consider offering a restorative justice approach as one of a suite of options for victims.  But of course that such an approach must be a matter of free choice for the victim.  A conferencing approach would not be acceptable if victims are pressured to follow this path.    

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If there is acceptance that a restorative justice approach be offered as one of a range of choices for victims, when could this be done?  (see slide 9)
The most controversial approach would be to divert some offenders from prosecution and provide an alternative outside the court system.  For example, this might be considered appropriate in the case of young offenders.  This approach has been taken in South Australia, where the offender is usually required to participate in a program which enables them to realise what they have done, before they can participate in a conference.

There has also been experimenting with using restorative justice after a conferencing approach after conviction, but the difficulty is that conviction is required.
Finally, conferencing could be a court supervised process in which the option could be offered in some circumstances.  The alleged offenders would be chosen by reference to guidelines designed to identify which offenders were suitable for participation in the process.  As I have said, this would all be premised on the fact that the victim was willing to participate, after being given all the options.  There would have to be a procedure to deal with the fact that some child victims may be too young to give meaningful consent. In suitable cases a parent might be able to participate on the child’s behalf.

An offender would have to admit the offending before they would be eligible to participate in a conference. They could refuse to be involved and take their chances that they would not be prosecuted or convicted. There are of course some difficulties in dealing with victim consent if the victim is a child at the time of offending.

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If there is acceptance of the notion of a restorative justice approach might be appropriate, a number of policy questions arise

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Least it be thought that the proposal for conferencing in the area of sexual offences is politically unrealistic at least in the context of it is important to note that such an approach that has already been used in a number of jurisdictions.

In Victoria, Australia, some centres against sexual assault have facilitated conferences between victims and offender outside any statutory framework.  There are other examples in New Zealand and South Australia.   There was also a pilot programme for young adults in NSW and that has been discontinued.

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If you are interested in further reading of this topic, I invite you to look at the recent Centre for Innovative Justice report from RMIT University.  And, of course, the father of this discussion was of course Professor John Braithwaite at the Australian National University who has written extensively about restorative justice and integrative shaming.