Are Sexual Assault Offenders in Australia Getting off Too Lightly?

Are Sexual Assault Offenders in Australia Getting off Too Lightly?

Most recent figures obtained by the Judicial Commission of NSW statistics indicate that more than 50% of all offenders guilty of Sexual Assault (Sexual Intercourse Without Consent, s. 61I of the Crimes Act NSW 1900) were sentenced to a term of imprisonment of 2 years or less (non-parole period).

How common is sexual assault in Australia?

According to Australia Bureau of Statistics, “1 in 5 women and 1 in 20 men have experienced one or more episodes of sexual violence.” However, many of these cases go unreported with only 1 out of 6 rapes being reported to police. The rate goes down to 1 out of 7 if the sexual assault was perpetrated by a current partner. The Victorian Law Reform Commission reports that less than 5% of those committing sexual assaults face legal punishment.

Figures issued by the Australian Institute of Criminology estimate 70 per cent of sexual assault incidents are not reported to police.

According to the UN, Australia has the “highest rates of reported sexual assaults in the world.” More than double the average reported worldwide. However in 2014, out of the 4,158 reported sexual offence incidents in NSW only a very small percentage received a full time prison sentence. For example, the Daily Telegraph reports that “of 6,697 people who faced Supreme and District courts between 1999 and 2010 on a total of 17,719 sex offences, only two received the toughest sentences available.”

With Australia having the highest rates of reported sexual assaults, why are our conviction rates so low?

Why are sexual assaults vastly under reported?

Women often do not report sexual assaults to the police because of a lack of faith in the police and justice system. Low conviction rates and long drawn out court processes also contribute to this distrust in the legal system.

Victims of sexual assault do not come forward because in the majority of cases they were assaulted by someone they knew and are often afraid of retribution even with an Apprehended Violence Orders (AVO) in place. Humiliation, fear of not being believed, prevalent gender stereotypes and social attitudes that blame victims for the assault also factor into the under reporting of sexual assault.

Rape support workers say many victims also do not pursue charges because under current law it is very hard to meet the extensive requirements for proof.

A study done by the Australian Office of the Status of Women revealed that many prosecutors rejected or discontinued cases due to insufficient evidence or a decreased likelihood of conviction. The report also highlighted that a lower proportion of defendants pleaded guilty to sexual assault relative to other types of offences. With a high number of cases that actually do make it to trial getting acquitted, this may also be a reason why a large number of sexual assault cases in Australia go unreported.

Should rape law be reformed?

According to the law in NSW, the defendant of a sexual assault charge is innocent until proven guilty beyond a reasonable doubt. This leaves the onus on the victim to prove that he or she

1. Had sex,
2. With another person, and that
3. They did not consent to having sex and
4. The defendant did not know the victim had not consented, or was reckless to that fact.

Sexual assault carries a maximum penalty of 14 years imprisonment.

Victims almost always have to testify because there are usually no witnesses. By the very nature of the circumstances of offending, sexual assault allegations are often “one on one” cases, often being the major obstacle between the complaint and the finding of guilt.

An argument for Special Courts Dealing Specifically with Sexual Assault Cases

Workers who assist victims of rape in Australia say changes are needed here to address the balance in a system which they argue is stacked against the victim.

Victims groups are calling for is separate courts to hear sexual assault cases, presided over by specially trained judges. They argue that changes to the court system that addressed the disparity between the numbers of alleged offences and convictions, more victims would feel encouraged to come forward.

Perhaps specialised courts will help streamline the lengthy legal process between complaint and trial.