The Community Law Reform Committee

of the Australian

Capital Territory

Discussion Paper No. 4

SEXUAL ASSAULT
















Canberra

September 1997

This paper reflects the law as at 1 September 1997

Committee Reference: CLRC DP No 4

The ACT established the Community Law Reform Committee in July 1990.

The purpose of the Committee is to:

. help the Government to identify areas in need of reform;

. anticipate emerging social and legal issues; and

. assess the practical impact of various proposals and laws on the people of the ACT.

The Committee's Office and Secretariat are at 2nd floor, GIO Building, City Walk, Canberra City, ACT 2601

Telephone (02) 62070529 Fax (02) 62070538

The purpose of this publication is the generation of community discussion. It is not intended and should not be relied upon for use in legal proceedings or as legal advice.

This publication has been produced as a Discussion Paper for the ACT Community Law Reform Committee by the Commercial and Law Reform Section of the Legal Policy Division of the Attorney Generals Department. It should not be taken to represent the concluded views of the Attorney-General's Department, the Australian Capital Territory Government or the Community Law Reform Committee.

Queries about the sexual assault reference or how to make a submission to the Committee or obtain copies of the Annexures referred to in this Discussion Paper should be directed to Mr Mark O'Neill, Commercial and Law Reform Section, ACT Attorney-General's Department, on ph. 6207 0529.

© Australian Capital Territory, Canberra 1997

Copyright in this publication is waived. It may be copied freely without the need for permission being sought. However, acknowledgment of the source should be made.

Published by Publications and Public Communication for the ACT Community Law Reform Committee and printed by the authority of the ACT Government Printer.

PART ONE: ISSUES RELATING TO SEXUAL ASSAULT

Introduction

Background to the Reference

  1. Over the past 20 years there has been a substantial increase in awareness of sexual assault in Australia. A great deal of information about the incidence and effects of sexual assault on victims has been recorded. There has also been greater speculation about which elements in the Australian culture contribute towards the incidence of sexual assault in our community. Many argue that these elements are also responsible for inappropriate attitudes that persist about sexual assault and its victims.
  2. Community attitudes to violence against women have been the subject of a recent study conducted by ANOP Research Pty Ltd for the Federal Government. It revealed that there was "less community awareness and understanding about sexual violence than domestic violence". 34% of those surveyed disagreed with the statement "women rarely make false claims of being raped" This led the researchers to conclude that "this indicates community reluctance to believe the victim" On a more positive note, the researchers found that there was strong disagreement with the view that rape is a crime of passion and women who are raped asked to be raped and women often say "no" when they mean "yes". Overall, the researchers concluded that "community understanding of sexual violence is not as well advanced as domestic violence. Of particular concern is that a significant minority is reluctant to believe rape victims." The researchers identified raising awareness and understanding of sexual violence as a priority for future community education.
  3. In the 1960s and 1970s the inadequacy of Australian sexual assault laws became a major community concern. Women and women's organisations were especially concerned because women form the majority of victims of these offences. At the time the laws in Australia covering sexual assault had been modelled on the English common law of rape that had remained largely unchanged since the seventeenth century.
  4. Reform became inevitable and during the late 1970s and 1980s most States and Territories substantially revised their sexual assault laws. Governments revised both the criminal law which creates the offences, and the law of evidence which determines how cases are presented. In addition, services for victims of sexual assault were gradually developed.
  5. Major amendments to the sexual offences in the ACT law were made in 1985. The new laws attempted to incorporate the best of the reforms which had been made in other States. There have been changes made to the ACT Sexual Offence Provisions since 1985, however, there has been no formal review of the law since that time.
  6. Other significant advances have been made in the ACT concerning sexual offences. Since July 1988 the Australian Federal Police have had a specialist unit dedicated to the investigation of sexual assault matters in the ACT. There has also been some limited increase in the counselling and support services available for victims of sexual assault.
  7. Despite these advances, a revision of the sexual assault law is considered necessary for many reasons, including the following:
  8. The media has played a significant role in increasing community awareness of the issues surrounding sexual assault. The results of the International Crime Surveys of 1989 and 1992 initiated considerable public debate. The findings indicated a higher level of "sexual incidents" occurred in Australia when compared with other countries surveyed. A recent inquiry into the findings of the Crime Surveys was made by the New South Wales Legislative Council Standing Committee on Social Issues. This inquiry concluded that the results from the surveys were "seriously flawed methodologically in the area of sexual violence". Nevertheless, the effect of those surveys in prompting some serious "self examination" within Australia cannot not be underestimated.
  9. Media reporting of controversial judicial comments made during sexual assault trials also created a significant springboard for public discussion. There is a general feeling that the legal system favours the rights of the accused at the expense of the victim. Community dissatisfaction with the operation of the law in this area is evident.
  10. In September 1992 the screening of David Goldie's television documentary "Without Consent" by the Australian Broadcasting Commission (ABC) also created considerable public debate. In conjunction with the screening of this documentary, the Australian Institute of Criminology conducted a national survey on beliefs about rape. This was followed by a conference about sexual assault in October 1992. The combined effect was a heightened Government and community awareness of the issues surrounding sexual assault in our community.
  11. Also in October 1992, the National Committee on Violence Against Women (NCVAW) published it's National Strategy which identified key objectives and directions for action. These are as follows:
  12. Directions for action for all Governments in Australia were proposed and recommendations made. The recommendations are specifically referred to by the Attorney-General in the terms of reference to which this discussion paper relates.
  13. Two significant phone-in survey on sexual assault were conducted in 1991-92. The first, in April 1991, was conducted by the Victorian Real Rape Coalition which attracted 369 callers. The second, in November 1992, was conducted by the New South Wales Sexual Assault Committee. The aim of these phone-ins was to gather information about the nature of sexual assault, the victims, the effects on their lives and the problems experienced in gaining access to services. Over 1000 calls were received during the New South Wales phone-in. The information gathered formed the basis of a Report to the New South Wales Government containing recommendations regarding policies, facilities and services for victims of sexual assault. Although the findings of both phone-ins were State based, their subject matter crosses State boundaries. Considerable guidance can be derived from them for the ACT.
  14. In 1990 the Standing Committee of Attorneys-General (comprising representatives of each State and Territorial Attorney-General) placed the question of the development of a model criminal code for Australian jurisdictions on its agenda. In order to advance the concept the Standing Committee of Attorneys-General (SCAG) established a committee consisting of an officer from each Australian jurisdiction with expertise in criminal law and criminal justice matters. That committee, known as the Model Criminal Code Officers Committee (MCCOC) released its discussion paper relating to sexual offences against the person (including sexual offences against children and the allied offences) in November 1996. The MCCOC discussion paper is confined to a consideration of the substantive criminal law and evidentiary matters relating to the sexual history of the victim, corroboration and complaint. The MCCOC deliberations and the release of its discussion paper have significantly effected the Community Law Reform Committee's response to its terms of reference and the format of this discussion paper. In view of the advantages of uniformity in the criminal law throughout the country and the consultative processes to be initiated by the MCCOC the Community Law Reform Committee, in preparing this discussion paper, recognises the desirability of uniform sexual assault laws. Part 2 of this discussion paper details the Community Law Reform Committee's assessment of substantive legal matters and should be considered in the context of the recommendations detailed in the MCCOC discussion paper.
  15. The true position regarding the incidence of sexual assault within the ACT community is unknown. The nature of the offence and the effect on the victims is such that it is a crime which often goes unreported. The number of cases coming before the Courts and the demand for counselling and support services by victims would suggest that the incidence of sexual assault in our community is much higher than is currently recognised. Difficulties in establishing a true picture of the incidence of sexual violence in our community arise due to differing definitions of sexual violence and differences in methodology. These difficulties are discussed in a review of ACT sexual assault services undertaken by the Department of Health and Community Care released in March 1996.
  16. The most recent survey, `Women's Safety Australia' released in December 1996, found that in the twelve months prior to the survey, sexual violence was experienced by 1.9% of women aged 18 and over. This included sexual assault involving acts of a sexual nature carried out against a woman's will, through the use of force, intimidation and coercion. It includes threats of sexual assault which the women believed were likely to take place. 90% of sexual violence was perpetrated by men. While 42% of women reported that they wished to deal with the incident themselves, 15% of women who were sexually assaulted in the previous twelve months period reported the incident to the police.
  17. These figures suggest that over a twelve month period more than 2000 women in the ACT have experienced sexual violence. In their 1995/96 Annual Report the Australian Federal Police Sexual Assault and Child Abuse Team reported a marked increase in the number of sexual assaults reported during the year. A total of 274 compared with 86 the previous year. They consider the increase to be due to increased community awareness associated with a number of factors such as the Wood Royal Commission in New South Wales, improved investigative techniques and effective partnerships with other service providers.
  18. There is as yet no reliable data about the number of men who are survivors of sexual violence, experienced as children or adults. Further research is urgently needed in this area as it is a men's health issue of major importance.
  19. The cost of sexual assault to the community and Government is significant. We can estimate the cost of dealing with these offences through the criminal justice system and the costs of counselling and other support services for victims. However, it is impossible to estimate the "hidden" costs to the community. These costs may include extended periods off work due to anxiety or depression, work hours lost due to Court appearances and increased reliance on health services from both the physical and emotional effects of the sexual assault. Family relationships are often severely affected, especially in cases where the offender is a family member. Most victims experience a reduction in the ability to cope with aspects of everyday life that others take for granted. For some the effects are permanent.
  20. A review of ACT Sexual Assault Services for adults who have experienced sexual violence (the Review) was undertaken by the Department of Health and Community Care and released in March 1996. The Review was undertaken in the context of overall services for adults who have experienced sexual violence at any times in their lives, including as children. It was an information gathering exercise not previously done in the ACT, which would assist the development of policy and planning of sensitive and appropriate services in the community. In July 1996 an intersectoral reference group was set up to facilitate further consultations with some key groups, to identify priority areas and to develop a draft strategic plan for future services planning. The reference group has developed more detailed proposals in the areas of:
  21. Since the release of the Review there have been initiatives in the area of services for people affected by sexual violence:
  22. The gaps in services identified by the Review and subsequently identified by the Reference group as priority areas for urgent action are:
  23. It is idealistic to hope that the crime of sexual assault can be eliminated from our society. Nevertheless, there is much that can be done. Improving the legal system, it is hoped, will make victims less reluctant to report the crime and will increase in the conviction rate of offenders. Increasing support services will, hopefully, enable victims to deal better with the traumatic effects of sexual assault.
  24. It is with this background that the Community Law Reform Committee has been asked by the ACT Attorney-General to review the sexual assault laws in force in the ACT. The Committee is requested to report on desirable changes concerning the existing laws, practices and procedures relating to sexual assault. As part of the review the Committee has been asked to consider whether the current system adequately deals with the needs of victims of sexual assault and the need for further measures or legislation to improve the current system.

Scope of the Reference

  1. The brief given to the Committee by the Attorney General is extremely broad. It covers all aspects of laws, practices and procedures relating to sexual assault in the ACT. The Review covers children as well as adults. It requires review of the following:
  2. This brief has enabled the Committee to consider the subject more widely; to look for reasons why reporting rates and conviction rates remain low despite the reforms to the legislation during the 1980's. As indicated above the scope of the Committee's role has been effected by the preparation and release of the Discussion Paper of the Model Criminal Code Officers Committee (MCCOC) of the Standing Committee of Attorney's-General. As a consequence the primary focus of this issues paper relates to procedural matters, with matters relating to the reform of the substantive law linked to the development of the proposed uniform criminal code and the various consultative processes following the release of the MCCOC Discussion Paper.
  3. The Attorney-General has specifically asked that the Committee have regard to:
  4. The National Strategy of the NCVAW and the specific objectives in the Strategy have already been mentioned. The Committee will also be considering the recommendations which were formulated as part of the NCVAW's Audit of Sexual Assault Services.
  5. The Federal Government is signatory to a number of international treaties which place obligations on Australia with respect to legislation and services promoting equality and protecting women and children from violence. The International Conventions which the Committee has considered to be particularly relevant to this Reference include the following:
  6. As an important part of all references from the Attorney-General, this Committee conducts community consultation which is generally carried out after the release of a discussion paper. With this reference the Committee considered it necessary to draw on wider expertise in the preparation of this discussion paper. The Committee sought the assistance of a number of people working in both Government and non-Government agencies concerned with sexual assault, including the Australian Federal Police Sexual Assault and Child Abuse Unit, the Office of the Director of Public Prosecutions, the Family Services Branch and the Rape Crisis Centre. Other agencies have provided information and assistance. Their contribution to the Committee in the preparation of this discussion paper has been invaluable and their time and effort greatly appreciated.

Aims of this Discussion Paper

  1. The purpose of this discussion paper is:
  2. In pursuing these purposes the Community Law Reform Committee's role has been effected by the release of the Discussion Paper of the Model Criminal Code Officers Committee (MCCOC) of the Standing Committee of Attorney's-General. As indicated above the primary focus of this issues paper relates to procedural matters with matters relating to the reform of the substantive law linked to the development of the proposed uniform criminal code and the various consultative processes following the release of the MCCOC Discussion Paper.
  3. The purpose of this paper is not to make recommendations for change at this stage. Recommendations will be made after community consultation in a final report to the Attorney-General.
  4. Community consultation on the issues raised and any other relevant issues is an integral part of the Community Law Reform process in the ACT. Written submissions are invited. It is envisaged that active consultation in the form of public and private hearings will be conducted. All material gathered as a result of the consultation will be considered by the Committee in formulating its final report to the Attorney-General.
  5. The Committee recognises that the effectiveness of the current law and procedure in the ACT needs to be measured by some means. Factors which are considered to be important by the Committee for this purpose are:

Terminology

  1. Any discussion about sexual assault raises some issues about terminology. In particular, the person against whom the sexual assault has been committed is often referred to as the "victim" or the "survivor" or the two words are combined in the term "victim/survivor". For the purposes of this discussion paper the Committee has decided to use the term "victim".
  2. The term used to describe the person who commits a sexual assault is also difficult to define. The term "accused" is not used in the Magistrates Court. The term "defendant" is used in the Magistrates Court, but only after the person is charged. Once an alleged offender has been charged in the Supreme Court the term 'accused' is then used to refer to that person. To avoid the confusion of using multiple terms, the Committee has decided to use the term "offender".

Sexual assault - the myths and the facts

  1. There are many commonly held beliefs and attitudes concerning sexual assault. These include beliefs and attitudes regarding:
  2. We cannot identify with any certainty the causes of sexual assault. Certain features of our society today (such as society's acceptance of violence), and traditions from the past (such as male supremacy within the family) may be contributing factors.
  3. These same factors may also be responsible for the beliefs and attitudes which are commonly held about sexual assault offenders and victims. Many of these beliefs have been proved to be false or unsubstantiated. For this reason they are referred to as "myths" about sexual assault. Some of these myths are examined below.

Is sexual assault really about sex?

  1. One common belief is that sexual assault is primarily a sexual act. Allied to this are the beliefs that the victim precipitates the offence by dressing or acting in a provocative manner, that sexual assault is a spontaneous act, that the offender is unable to control themself once sexually aroused and that victims enjoy being sexually assaulted.
  2. Victims have argued for some time that sexual assault is not primarily about sex but about power. The "Without Consent" documentary produced by David Goldie and aired on the ABC showed interviews with sexual assault offenders. Goldie saw the inclusion of interviews with the offenders as

"A golden opportunity to acknowledge something that women's groups have been saying for years - that rape is about power and not sex. That it is driven by a desire to humiliate and degrade - and has little to do with a desire for sexual release."

  1. In a review of the documentaries Mr Goldie stated:

"The rapists I presented in my documentaries made their motives quite clear. One stated, "I just felt this big urge of power"; another said, as he was about to commit his rape, "It was just a total feeling of power, of the total domination of somebody else". A third said that "in the suffering there was power, in the suffering there was dominance(sic)" And so it went on.

"Every rapist, without exception, made reference to their 'power trip'. Sexual desire as a motivation was never mentioned in the documentary. At no stage did they suggest that they were seduced, or wantonly led on, or forced beyond their sexual control by a temptress who should know better...."

"The rapists stated clearly and categorically that their motivation for the rape was the control, the humiliation and the degradation of a woman."

  1. The power attraction is not always directed at a female victim. Mr Goldie has reported that he first became aware of this aspect of sexual assault while researching another documentary. The documentary examined the punishment of crime in Australia and the research involved hundreds of conversations with prisoners. Some of these were convicted sexual assault offenders, some had sexually assaulted other prisoners in jail and others were the victims of sexual assault in jail. The sexual assaults committed in the jail were by heterosexual men against other heterosexual men. Mr Goldie found that sexual gratification was not the motive. He said:

"Rapists inside jail use the violation of a sexual assault to exert power over another individual in the same way that male rapists do when they attack a woman in the general community."

  1. People do not enjoy being frightened, overpowered, degraded and humiliated. There is no reason to suggest that sexual assault victims, regardless of gender or age, would be any different. Studies have shown that sexual assaults are premeditated, planned and often involve a period of interaction with the victim prior to the sexual assault.

Is force a necessary component?

  1. Another common belief is that sexual assault must involve the offender using physical force or a weapon such as a knife or a gun to overpower the victim.
  2. Although physical force is sometimes used, the majority of sexual assaults do not involve force which causes injury to the victim. It may be that when the victim is physically injured there is a greater likelihood that the victim will report the crime and proceed through the criminal justice system. However, the majority of sexual assault cases which have proceeded through the ACT Courts do not involve the use of physical force.
  3. In the period July 1992 - June 1993 there were a total of 39 charges dealt with in ACT Courts that fell within the first four categories of sexual assault offences. Of these 39 charges none involved the infliction of grievous bodily harm upon the victim, 1 charge involved the infliction of actual bodily harm and 10 involved unlawful assault or threats to inflict grievous or actual bodily harm. The remaining 28 charges (72%) were for the charge of sexual intercourse without consent involving no physical force.
  4. The above figures may be distorted as a result of the scheme of offences and the charging practice in the ACT. In fact there may be cases where actual harm is inflicted or threatened but for evidentiary reasons the only charge laid is sexual intercourse without consent. However, the figures suggest that the use of violence is unnecessary to terrify a victim into submission. The threat of physical harm, be it by verbal threat or intimidation simply by virtue of the greater size or strength of the offender, is sufficient.
  5. The majority of sexual assaults do not involve the use of a weapon. The Victorian Real Rape Coalition's finding on this point from a confidential phone-in on sexual assault was that a weapon was used or present in fewer than one in five assaults. Most assailants effected the attack by subjecting the victim to a range of threats and intimidation. Another finding was that victims reported sexual assaults more often if they involved "overt" violence such as "forced" initial contact, weapons or physical injury.

Must the victim physically resist?

  1. Many sexual assaults do not involve physical resistance by the victim. The Real Rape Coalition's findings on this point from the response of victims were as follows:

" 'I was made to feel powerless' was the most frequent single response when victims were asked how the assailant had effected the assault. In many instances shock and denial meant that the victim did not consider that resistance or escape were possible. Overwhelmingly, victims felt that there was nothing they could do to prevent or stop the assault."

  1. Understanding the sense of powerlessness experienced by victims at the time of the sexual assault is possibly very difficult for people who have never been in the situation. It is easy for others to hypothesise about what they may have done. Many people expect that a sexual assault victim would have struggled or screamed. Some may do, but many do not. This is an area in which anecdotal evidence from victims is the only source of research data. The frequency of similar reports adds weight to the conclusion that passivity by the victim is a common fear response.
  2. Dr Easteal from the Australian Institute of Criminology concludes from her numerous interviews with sexual assault victims:

"In reality many covert forms of coercion and force may be used in rape. It is the victim's fear of the assault and its outcome that renders her passive - not compliant - but without consent. Since many victims of rape are also survivors of incest and other sexual abuse they may 'shut down' their emotions and bodies at the onset of a rape. In addition, many other women have been socialised not to be aggressive or assertive. Consequently female passivity is a quite common response to male violence."

  1. The belief by many in the community that the victim should have physically resisted the assault has significantly affected the response of the criminal justice system to sexual assault victims. Police, lawyers, Judges and jury members may tend to Judge a victim's credibility on the basis that there was no resistance. This may be reflected in the unwillingness of police to proceed with prosecution, the line of cross-examination, the Judge's summing up to a jury and most importantly, the juror's decision. This belief denies the reality of the crime of sexual assault and the victim's response.

Who commits sexual assault?

  1. It is commonly believed that offenders are usually strangers. Contrary to this belief research has shown that most offenders are known to the victim. Both the Australian Crime Victim Survey conducted by the Australian Institute of Criminology, and a study conducted by the New South Wales Bureau of Crime Statistics and Research reported that only a quarter of sexual assault crimes were perpetrated by strangers.
  2. Information on the identity of offenders was collected from 115 victims by the ACT Rape Crisis Centre between January-December 1992. The categories of offenders identified were as follows:

Father21 Male Date1
Brother9 Friend19
Adopted Brother1 Acquaintance15
Sister1 Friend of Husband 2
Mother3 Friend of Family3
Uncle4 Policeman1
Stepfather6 Teacher1
Grandfather4 Baby-sitter1
Boyfriend/lover5 Army Personnel2
Ex-boyfriend/lover 1Stranger 12
Husband4 Girl1
De Facto Husband1 Husband raped daughters 2
More than one person 22

  1. This information supports the conclusion that the offender will often be a person who is in a position of trust - a father, a husband or a boyfriend.
  2. The erroneous belief that the sexual assault offender is usually a stranger may have its origins in the fact that a sexual assault by a stranger is more likely to be reported and to be prosecuted through the criminal justice system. This view was borne out in the findings of the Victorian Real Rape Coalition phone-in on sexual assault: victims assaulted by strangers were three times more likely to report the crime than victims assaulted by offenders they knew. In cases where the victim knows the offender, there are far more reasons for the victim not reporting the crime.
  3. Many people have difficulty accepting that sexual assault offenders appear to be ordinary people. Somehow it is easier to envisage that offenders have pathological personalities and tend to come from the lower classes. In some cases this may be the truth. There is a risk that this conclusion could be drawn from studies of convicted sexual offenders in the prison system. But what about the offenders of the sexual assaults that are never reported? For these offences the data collected from counselling services such as the above data collected by the Rape Crisis Centre, gives a different profile.
  4. The data would suggest that sexual assault offenders are ordinary people who engage in normal everyday activities. These people would not be considered to have any diagnostic mental illness. From her studies on the subject Dr Patricia Easteal reports:

"Empirical research has not found any consistent type of person or personality profile that distinguishes rapists from other males. One study looked at self-reported sexual aggression in men and found that class, education, and occupation were not significant variables."

  1. The efforts to compile a profile of a typical sexual assault offender have been described by psychologist and social worker Mark Crake as

"A reflection of a desire to find simple explanations for a complex human behaviour that is determined by the interactions of many intrapersonal, interpersonal and social variables."

"He would most likely be male but possibly female, an upstanding member of the community or part of an alienated subculture. He may be a specialist offender with a particular interest in deviant, aggressive sexual behaviour, or a generally criminal person who is inclined to take what he wants when he wants, or an individual who acts out when overwhelmed by life difficulties. Some may be over controlled, closeting away their feelings until their ability to repress is exceeded and all their feelings and emotions come flooding out in destructive ways, or they may be under-controlled, impulsive and poorly socialised with sociopathic tendencies, having little regard for the rights and needs of others."

  1. Crake concluded that to attempt to definitively answer the question "who is the rapist?" is to fail.
  2. Although the Committee recognises that females also commit sexual assault, it acknowledges that almost all sexual assaults are committed by males. This view is supported by the findings of victim surveys as well as Court records. The Report of the 1992 phone-in conducted by the New South Wales Sexual Assault Committee reveals that 99 percent of cases involved at least one male offender. Of the 71 offenders charged with sexual offences in the ACT between July 1992 - June 1993, all but one were male.

Who are the victims?

  1. It is comforting for many to think that 'nice' girls do not get sexually assaulted. This belief denies the fact that ALL kinds of women are sexually assaulted - factors such as age, attractiveness, race religion, class and culture do not protect women. Being morally upright offers no immunity.
  2. In response to the allegation that women provoke sexual assault by the way they dress or act, the following comment is relevant:

"Almost anything a woman does can be construed as being an invitation to sex, or as asking for it. Women are supposed to be attractive but if they are raped they are told they provoked the attack by dressing attractively. Women are supposedly free and equal but if they act as if they are free they are then told they are asking to be assaulted."

Where are sexual assaults frequently committed?

  1. It is often thought that sexual assaults occur at night, on dark streets or in parks. It is sometimes the case that sexual assaults do occur in these places but more often it occurs in a place familiar to the victim. This is frequently the victim's own home or the offender's home. One of the key findings of the Real Rape Coalition phone-in on sexual assault was that 28% of sexual assaults took place in the victim's home. Only 20% of assaults took place 'in the open'.

Why do many sexual assault victims not report the crime?

  1. To date there has been no ACT study into the reporting rate of sexual assaults in the ACT. However, anecdotal evidence from services dealing with sexual assault victims in the ACT support conclusions from studies conducted in other jurisdictions that many sexual assault victims do not report the crime to the police.
  2. The findings of the NSW Sexual Assault Committee following the sexual assault phone-in conducted in November 1992 was that 66% of the callers had never reported the sexual assault to the police. The Report referred to sexual assault as "A Silent Crime". In particular the reporting rate was lowest where the sexual assault had been committed on children aged 16 or less. This was suggestive of the possibility that children "are too young to recognise the implications of the assault and too scared and powerless to speak out."
  3. There were many reasons why victims did not report the assault and more than one reason in many cases. The most important reasons revealed a lack of faith in the police and the legal system. Some of the reasons stated were:
  1. The NSW study revealed that victims are more likely to report the crime if the crime was perpetrated by a stranger rather than family members, strangers with some social contact or husbands and partners. Reporting was also found to be more likely if a weapon was used.

The effects of myths about sexual assault

  1. The effects of these myths are numerous. They have enabled offenders to shift the blame for sexual assault to the victims. Sometimes this is so effective that the victim's guilt is a major reason why the crime is not reported to anyone let alone the police. The myths serve to protect society from the true facts surrounding sexual assault; facts about its incidence, about who commits such crimes, about who the victims of such crimes are and generally about the risks to citizens.

Why is the conviction rate for sexual assault offences so poor?

  1. In a paper titled Rape Prevention: Combating the myths, Dr Easteal writes:

"One of the only means available to reduce sexual assault and to enhance the probability that its victims will report it to authorities is through knocking down the false images of rape that act to perpetuate it in society....rape prevention lies in changing societal attitudes about rape and about men and women."

Agencies Involved With Sexual Assault

The Agencies

  1. All the agencies covered in this chapter in some way provide services for victims of sexual assault, whether it be an investigative function, protection and advocacy, or support and counselling services. They are not the only agencies in the ACT which offer services to victims of sexual assault. However, they have been selected because they either work exclusively or almost exclusively in the area of sexual assault or provide a specialised service for sexual assault victims.
  2. A number of agencies in the ACT (which are not specific sexual assault services) often encounter victims of sexual assault when the primary reason for the victim attending the service is for reasons unassociated with the assault. Organisations such as Barnardos and services such as the Lowana Young Women's Service regularly encounter victims of sexual assault, although their primary purpose is to provide foster care in the case of Barnardos and supported accommodation for homeless young women in the case of Lowana. The Salvation Army and Church based community support services also encounter victims, often through the provision of pastoral care services.
  3. The need for appropriate referral of the victim from a non specific sexual assault service to a specific service is essential.
  4. For the purpose of evaluating the agencies the Committee has relied largely upon the Summary of Recommendations made as a result of the NCVAW's Audit of Sexual Assault Services. Areas which will be targeted include:

The Australian Federal Police: Sexual Assault and Child Abuse Team

  1. Since July 1988 the Australian Federal Police (AFP) have had a specialist unit within the Major Crime Branch dedicated to the investigation of sexual assault matters in the ACT. Initially, the unit was responsible for investigating only sexual assaults. In February 1992 that function was expanded to include cases involving physical abuse of children. The unit is now known as the Sexual Assault and Child Abuse Team (SACAT). It currently has a staff allocation of eight people. All police officers within the Sexual Assault and Child Abuse Unit have undertaken an intensive three week "Sexual Offence Investigator's Course".
  2. The SACAT is responsible for the part of the police investigation involving the victim. This responsibility includes:
  3. Once SACAT has completed the initial investigation the matter is referred to one of four Regional Crime Branches which are then responsible for the part of the investigation concerning the offender.
  4. In many cases, the victim or someone acting on behalf of the victim, will report the offence to SACAT. If the report is made to a local police station the matter will be referred on to SACAT.
  5. If a sexual assault is reported to police within 72 hours (three days), an officer of SACAT will go to the victim whatever the time of day or night. That officer then becomes the liaison officer. If necessary the liaison officer will also attend the scene of the crime. Usually the victim then goes back to the SACAT rooms and has a medical examination. This examination is carried out according to a set protocol and an extensive questionnaire is completed. There is a roster of doctors who are available to attend victims. However, this roster covers all assault victims, whether they are male or female and regardless of the nature of the assault. There is no roster specifically for sexual assault victims. The SACAT tries to give the victim access to a female doctor or to their own general practitioner wherever possible.
  6. Depending on the state of the victim, the victim's statement may then be taken. Otherwise, the statement is taken later when the victim feels up to it.
  7. If a sexual assault is reported to SACAT more than three days after it happened, a time is made for the victim to make a statement at the SACAT rooms during normal working hours. Unless there is evidence of injury, a medical examination is not usually required.
  8. Once an offender is arrested, summonsed or agrees to attend Court, the liaison officer informs the victim of this and of Court appearances, bail conditions and dates for the committal hearing and trial.
  9. If a victim has to give evidence in Court, the liaison officer will arrange for the victim to meet the prosecutor who will be handling the case. The victim is also shown around the Courtroom for familiarisation. The liaison officer provides support for the victim throughout the Court process which may include being the support person inside the Courtroom, waiting outside the Courtroom, explaining what is going on in the proceedings during Court breaks, and providing a security buffer between the offender and the victim.
  10. All victims are kept informed of the status of their particular case. Where possible, the same officer retains responsibility for a particular victim's matter. Keeping victims informed of the progress of their case is an integral part of the operation of the Unit.
  11. All decisions made by SACAT are automatically reviewed by the Major Crime Branch.

The Director of Public Prosecutions

  1. The Office of the Director of Public Prosecutions (DPP) is responsible for prosecuting offences against ACT laws.
  2. The decision to prosecute an offender is made in accordance with the Prosecution Policy and Guidelines. It is not a decision made lightly and many factors are taken into consideration:

"The initial consideration will be the adequacy of the evidence. A prosecution should not be instituted or continued unless there is reliable evidence, .... The evidence must provide reasonable prospects of a conviction."

The evidence generally includes a statement from the victim, any other relevant witnesses and a record of interview with the offender.

  1. As a consequence of an increasing number of sexual offence cases and the complexities in prosecuting such cases, a specialist section was established in 1992. The section fulfils a vital liaison function with the AFP Sexual Assault and Child Abuse Team. It also means that one person sees all cases that come to the office concerning sexual offences. Generally, sexual assault prosecutions are handled by more senior and experienced prosecutors.
  2. Prior to the committal hearing the prosecutor dealing with the case will meet the victim, explain the Court proceedings and answer any questions regarding the legal process. The prosecutor will also talk to the victim about their recollection of the events surrounding the sexual assault. Generally, the victim only meets once with the prosecutor before the first Court appearance.
  3. At this meeting, the prosecutor will determine whether or not the victim is willing to testify in Court and capable of being a competent and credible witness.
  4. If the offender is committed for trial in the Supreme Court, the prosecutor will meet again with the victim prior to the trial. This is necessary because the time lapse between committal and trial can be twelve months or longer.
  5. In the 1993-1994 financial year, 60 offenders were charged with 177 sexual offences against 90 victims.

Offence
Magistrates Court
Supreme Court
Sexual Assault 2nd degree
2
0
Sexual Assault 3rd degree
4
2
Sexual Intercourse Without Consent
16
8
Act of Indecency 3rd degree
2
0
Act of Indecency without Consent
25
3
Abduction
1
0
Indecent Exposure
7
0

  1. Proceedings resulted in 25 convictions, 9 acquittals and 6 discontinuances. Of the 6 matters discontinued, 1 was discontinued due to the death of the offender, 4 were discontinued because the victim withdrew the complaint, and 1 was discontinued due to insufficient evidence. No convictions were obtained in any of the 7 jury trials.

Community Advocate

  1. The role of the Community Advocate is to protect the rights and interests of those people in the community who, because of a disability, are not in a position to protect their own rights and interests. The Community Advocate has responsibility for four main groups:
  2. The role of the Community Advocate includes fostering the provision of services and facilities for people with a disability, promoting the protection of such people from abuse and exploitation, encouraging the development of programs that benefit such people and sometimes acting as a guardian or manager.
  3. In addition to the Community Advocate herself, there are three Deputy Community Advocates and three other Advocates.
  4. In relation to sexual offences, the Community Advocate has responsibility for the most vulnerable groups in the community. Her role is to represent their interests before Courts or with other bodies.

The Rape Crisis Centre

  1. The Rape Crisis Centre (RCC) is a community organisation which provides crisis support and advocacy, crisis and ongoing counselling, both face to face and telephone, to women and children, who have experienced rape or any form of sexual assault, incest, sexual harassment, or ritual abuse. The Centre is not funded to provide counselling and support for adult male victims. The Centre is also actively involved in community education on the issue of sexual violence.
  2. The RCC is funded by the Commonwealth/State Supported Accommodation Assistance Program for the day time service and the ACT Community Services Grants Program for the after hours service. Healthpact has been funding a community education position on a non recurrent basis.
  3. The RCC provides a 24 hour telephone counselling and crisis support service. Workers will attend crisis situations and offer support and advocacy if the woman wishes to report to the police or have a medical examination. RCC workers provide information to women about the legal and medical processes and support her in making her own decision about reporting or not reporting. Continued support is provided throughout the Court process as required. The RCC has a co-operative working relationship with the AFP Sexual Assault and Child Abuse Team.
  4. The RCC is committed to providing an accessible service to all women and to this end have identified those groups which may have particular difficulties in using the service including Aboriginal women, women from non-English speaking cultures and young women. Strategies are put into place to improve this situation but unfortunately more often than not those strategies are dependent on the availability of funding. When possible the RCC employs an Aboriginal worker and a worker from a non-English speaking culture. The Community Educator works with young women through schools and youth centres. There is more information on the Community education undertaken by the RCC in Part Three of this discussion paper on Training.
  5. In recent years the RCC has noted an increasing demand generally for the services provided by the Centre. It is not considered that this is necessarily indicative of an increase in the number of sexual assaults in the community but that it has resulted more from the fact that women are more willing to talk about their experiences. In particular, the workers have noted that there has been a steady increase in the number of women contacting the RCC seeking support for sexual offences committed against them many years previous.
  6. In 1996 the RCC and Dunadova (formerly the Incest Centre) amalgamated under the name of the Canberra Rape Crisis Centre. The Centre maintains close connections with the Child at Risk Assessment Unit at Canberra Hospital.

Hospitals

  1. Both Canberra Hospital and Calvary Hospital have casualty sections. However, the administrations of both these hospitals are of the view that unless the victim was physically injured, a victim would be referred to the AFP's Sexual Assault and Child Abuse Team. Referrals are also made by staff at the hospitals to refuges and sexual assault support organisations. In general, the hospital administrations do not see casualty sections as appropriate places to deal with sexual assault victims due to the high turnover of patients and staff. If this is the case then it highlights the necessity for hospital staff in emergency care sections to be fully aware of the services available for sexual assault victims.

Women's Health Service

  1. The Women's Health Service is part of the Health Program within ACT Health and Community Care. It is a service catering specifically for the health needs of women of any age or background and is provided by women with specialised knowledge of women's health issues. The focus of the Service is upon survivors of domestic violence and/or sexual abuse.
  2. The Service operates from the health centres at Civic, Belconnen and Tuggeranong and is staffed by a medical practitioner, 2 social workers, a co-ordinator and a receptionist with 2.6 nurse practitioners working between each of the three health centre.
  3. The services provided include medical examinations and counselling. The Service is not a crisis service but priority is given to women in urgent need of assistance.

Women's Centre for Health Matters

  1. The Centre for Women's Health Matters is a community based women's health information and resource service located at Pearce Community Centre. The Centre provides a general health information telephone service, a massage therapy service for women who have experienced violence and a library and pamphlet information bay on matters relating to women's health. The Centre also makes meeting rooms available for use by women's groups. The Centre is funded through the National Women's Health Program, a joint Commonwealth and State funding initiative.
  2. The Centre is consulted by victims of both sexual assault and ritual abuse. In September 1995, the Centre published Many Paths for Healing the Counselling and Support Needs of Women who have Experienced Childhood Sexual Abuse or Ritual Abuse, written by Joanne Courtney and Lisa Williams.
  3. The Service is unable to provide long term counselling and the short term counselling service provided by the Centre was defunded in July 1995.

Family Services

  1. The central role of the Children's Youth and Family Services Bureau of the Department of Education and Training is to deliver services that protect children from all forms of abuse, neglect and exploitation, according to the provisions of the Children's Services Act 1986. In relation to sexual assault, the definition of abuse for the purposes of any statutory action must be expressed in terms of categories listed under section 71 of the Children's Services Act.
  2. The Children's Youth and Family Services Bureau provides a range of services which include:
  3. The Children's Youth and Family Services Bureau acts on the basis of notifications received from the child, a family member, the public, police or professionals involved with the child.
  4. The Bureau has a close working relationship with the AFP Sexual Assault and Child Abuse Team. In the case of physical abuse causing injury and all sexual abuse cases, SACAT is notified prior to investigation by Family Services as the police need to obtain medical and forensic evidence in the early stages of the investigative process to expedite criminal proceedings. Where the immediate safety of a child is concerned, negotiations with SACAT may result in a joint investigation.
  5. On the basis of intensive investigation and consultation an authorised person may take immediate action to remove a child to a place of safety. Depending on the circumstances, a child who has been removed may be placed in a shelter, an approved foster home or in hospital pending further assessment of injury and risk, the child's needs and possible future Court action.
  6. The child is assigned a Family Services caseworker. When the Bureau intervenes in a child's life, there must be an approved and current case plan which addresses the needs of the child and his or her family. An approved case plan is subject to regular review.
  7. Depending on the outcome of Court action, the case plan will be reviewed and a permanent placement may be sought for the child with an appropriate family member, foster family or residential program.

Child Sexual Assault

Prevalence and Theories

Incidence

  1. Many child sexual assault victims never tell anyone about their abuse. Some tell counsellors, psychologists or social workers. Fewer report it to the police. Because of this it is impossible to estimate the actual incidence of child sexual assault. The following statistics only describe the cases of child sexual assault reported to the police in the ACT.

Number of offenders, offences and charges in child sexual assault matters in 1993-94.

AFP Statistics
DPP Statistics
Offence
Number of Offenders *
Number of Offences
Number of Charges in Magistrates Court **
Number of Charges in Supreme Court **
Sexual Assault: Child under 10
2
5
7
15
Sexual Assault: Person 10-16
5
6
6
12
Act of Indecency: Child Under 10
9
11
23
5
Act of Indecency: Person 10-16
15
18
23
7
Incest: Child under 10
2
2
1
0
Incest: Person 10-16
1
1
4
4
TOTAL
34
43
64
43

* All offenders were male

** Some cases have committal hearings in the Magistrates Court and Supreme Court hearings in the same year, so these cases may appear in both the Magistrates Court and Supreme Court columns above.

Age and gender of complainants in sexual offence prosecutions 1993-94

Magistrates Court
Supreme Court
Age
Female
Male
Female
Male
Total
Child under 10
11
2
6
0
19
Person 10-16
15
5
8
3
31
TOTAL
26
7
14
3
50

The youngest female complainant was 3 years old, the youngest male complainant 6 years old.

  1. A survey of first year social science students in a range of tertiary institutions conducted by R Goldman and J Goldman found that 28% of females and 9% of males reported having experienced childhood incidents of sexual abuse by adults. Their results corresponded with results from the USA, UK and Canada where similar surveys had been conducted.

Mandatory Reporting

  1. When the Children's Services Act 1986 was enacted, commencement of sub-section 103(2) (mandatory reporting) was delayed. Sub-section 103(2) commenced on 1 June 1997.
  2. Under sub-section 103(2), doctors, dentists, nurses, police officers, teachers, school counsellors, public servants whose duties relate to children's welfare and child care givers in registered centres will have to report suspected cases of physical injury (other than by accident) or sexual abuse to the Director of Family Services.
  3. In 1993 the Community Law Reform Committee of the ACT prepared a report on Mandatory Reporting of Child Abuse. The majority of the Committee recommended a phased response to the problem of reporting child abuse rather than immediate commencement of sub-section 103(2). The minority favoured its immediate commencement. The operation of sub-section 103(2) will be examined in our final Report.

Some theories as to why child sexual abuse occurs

  1. The underlying theoretical basis of the problem determines how child sexual abuse will be approached by society.

Psychoanalytic theory

  1. Freudian theory proposes that victims' reports of childhood sexual abuse are really fantasies the child has about being desired by the father. Freud's original explanation of reports of child sexual abuse focused on the father seducing the child, but he received so much professional criticism for suggesting that respected men in the community would commit such acts that he revised his theory. Psychoanalytic theory is less favoured nowadays in Australia but is still followed by some psychologists.

Family Dysfunction Theory

  1. This theory views the family as a single entity rather than a group of individuals. It explains child sexual abuse as a symptom of the psychological breakdown of the family and focuses on the abuse as a problem of the family rather than a psychological problem of the perpetrator.

Feminist Theory

  1. Feminist theory explains child sexual abuse in terms of the relative power of parties in relationships. Finkelhor has proposed four pre-conditions that predict potential perpetrators of child sexual abuse:
  2. In terms of recovery, psychoanalysis dwells on therapy for the victim, Family Dysfunction Theory centres on redefining individual roles within the family and Feminist Theory focuses on societal recognition and change of the power imbalance within relationships.

Myths and Facts

Who are the perpetrators?

  1. As with sexual assaults on adults, the vast majority of sexual assaults upon children are committed by males. Similarly, the perpetrator is more often a family member or someone known to the victim rather than a stranger. Analysis of the socio-economic status of perpetrators indicates that child sexual abuse is prevalent at all levels of society.

Who are the victims?

  1. The vast majority of adult sexual assault victims are female, however, this is not so much the case for child victims. The research shows that although the majority of child sexual abuse victims are female, many boys are also targets of sexual abuse. In R Goldman and J Goldman's survey, children in the 10-12 year age group were found to be most at risk of sexual abuse and the average age of child victims was approximately 10 years old. This disputes the myth that children are most vulnerable to sexual abuse during adolescence because of their developing sexual characteristics.

Whose fault is it?

  1. Sexual abuse is never the fault of the child. Teenage victims may be told that they caused the abuse: if they didn't wear those clothes or if they didn't behave that way, the abuse would never have happened. Similarly, some people try to justify the abuse of young children by describing them as "precocious". The reality is that children and young people are abused regardless of their appearance or behaviour. Child sexual assault is a crime committed against one of the most vulnerable and powerless groups in society, who in no way encourage or deserve the abuse.

Is there usually medical or other forensic evidence?

  1. In the vast majority of cases children have no physical evidence to corroborate their sexual abuse. Sometimes this is due to lapse of time since the incident, other times it is due to the nature of the abuse - often sexual abuse leaves no physical evidence that can conclusively prove sexual contact has occurred.
  2. This issue was discussed by J. Edwards in a paper to the Fourth Australasian Conference on Child Abuse and Neglect:

"The problem that arises is the commonly held unrealistic expectations that parents, police and DOCS [NSW Department of Community Services] have that physical examination will establish "the truth". The parent or custodian of the child wants to know "if her husband has really done it" and if her child has been "damaged". DOCS want to know if the child is safe where it is living, or is in need of care and protection. The police want to know if there is physical damage and any forensic evidence to use if an offender is charged."

"Physical examination for the purposes of determining whether and when a sexual assault has taken place, is a very poor tool."

  1. Anecdotal evidence indicates that even in cases where all the clinicians involved agree there is no doubt that sexual abuse has occurred, if there is no forensic or medical evidence (or an admission of guilt by the accused) then the cases often do not proceed to Court.

Is sexual abuse passed down through generations?

  1. A study by Chris Goddard and Peter Hiller found that 72% of child sexual assault victims came from families where the parents had been abused in childhood themselves. The same study revealed that 40% of child sexual assault victims came from families who experienced domestic violence; 94% of these had parents who had been abused in childhood themselves. It was also found that siblings of victims were more likely to have been sexually abused if there was domestic violence in the family.

Why do some children delay in reporting their abuse?

  1. It is very much in the interests of the perpetrator to ensure the child does not disclose to anyone that they have been sexually abused. There are many ways the perpetrator can try to prevent the child from telling anyone, and just as many ways for him to discredit the child if she/he does tell. The fact is that children are sexually abused in secret, there are no witnesses and there is often no physical evidence. The perpetrator is an adult, and adults occupy places of extreme power in children's lives. When an adult abuses their power by sexually assaulting a child, it is the child's lack of power which prevents her/him from disclosing sexual abuse. It is extremely difficult for a child to "tell on" an adult, even if there is no longer any threat to their safety.

Do children suffer long term effects from sexual abuse?

  1. It is a myth that children do not suffer long term effects from sexual abuse. It has been established by psychological research that many victims of child sexual abuse do suffer long term adverse effects. Some psychiatrists also believe that the degree of psychological trauma the child suffers is as much related to the way the victim is treated after disclosure as it is to the trauma of the assault itself. Although no causal link has yet been shown, one of the long term effects of child sexual abuse may be child homelessness.

Are children prone to making things up?

  1. Children rarely make false allegations of sexual abuse. It is, however, common for children to falsely deny that sexual abuse has occurred because of the pressures on them not to disclose. For the same reasons, some children retract the allegations in their initial disclosure.

Is children's recall accurate?

  1. Research indicates that when young children are asked open ended questions their recall is extremely accurate, however, the accuracy of their responses is reduced when very specific questions are asked.
  2. Questioning children becomes difficult because young children tend to omit a considerable amount of detail when they are asked to relay as much as they can about an event (reports increase in detail as children get older, up to about 13-14 years of age when the level of detail is the same as for adults). Because young children omit details they are then asked very specific questions, which may lead to the child giving inaccurate details.

Are children susceptible to suggestion?

  1. Some adults and children are susceptible to suggestion from leading questions. Researchers do not agree on whether children are more susceptible than adults, however, suggestibility may be related to the authority of the questioner, and more people are authority figures for children.

Do children have difficulty distinguishing fantasy from reality?

  1. Although little research has been done in this area, Naylor reports that people who work with sexually assaulted children have found little evidence to suggest that children genuinely cannot distinguish reality from fantasy. However, there is evidence to suggest that some children have difficulty determining what they actually have done from what they have only thought of doing.

How does stress effect children?

  1. Stress is generally talked about as something from which only adults suffer. The literature indicates that some children suffer under the stress associated with disclosing sexual assault and the ensuing Court hearings.
  2. Major sources of stress for children in sexual assault trials include:
  3. Trying to reduce the child victim's stress after disclosure is crucial because the child's emotional fitness is a factor in determining whether or not the case will proceed. Also, despite the common misperception to the contrary, high levels of stress adversely affect recall.
  4. Jackson and Borthwich discuss this issue and cite both research and personal experience which indicates that "family support, particularly from the mother, is significant in reducing the stress of the Court experience.".

How do children see a not-guilty verdict?

  1. If the accused is acquitted or the case is dismissed the child victim is left believing that the Judge and jury thought they were lying. Unless someone explains to the child why the Court decided the way it did, the child may continue to think that no-one believed them. Obviously it may not be possible to explain why the jury came to a particular decision, but it is important to reassure the child that she/he did nothing wrong in telling the truth.

Groups with specific needs

Aborigines and Torres Strait Islanders

  1. Jane Atkinson sees violence against indigenous women by their menfolk as being a result of a white imposed problem rather than one of traditional indigenous society. It should be noted that sexual assault is committed by white men against indigenous women as well. Atkinson comments that:

"Violence towards Aboriginal women must be seen in the context of a society that tolerates the subordination of, and violence towards, Aborigines generally and to women in particular."

Consequences of Colonisation

  1. The European colonisers of Australia set out on a deliberate campaign of destruction of indigenous culture, language, self-esteem and identity. The Aborigines and Torres Strait Islanders had their land taken from them and with it the context of relations between indigenous people. They also had their children taken away from them and placed with white families and in institutions. As a result, indigenous people have had their own culture destroyed, adapted and entwined with white culture, ideology and identity.

Brief overview of Aboriginal and Torres Strait Islander culture

  1. Traditionally, women in Aboriginal and Torres Strait Islander culture have a status comparable with and equal to men. They have their own ceremonies and sacred knowledge, as well as being custodians of family laws and secrets. They supplied most of the reliable food and had substantial control over its distribution. They were the providers of child and health care and under the kinship system, the woman's or mother's line was essential in determining marriage partners and the moiety (or tribal division).
  2. Traditional or institutionalised violence in Aboriginal and Torres Strait Islander societies were a means of social control and were meted out to male and female offenders. Punishments such as spearing, beating or even death were the responsibility of the community or relevant groups in those communities not by individuals.

Not the Aboriginal way

  1. There has been some suggestion that physical and sexual violence was an inherent part of traditional Aboriginal and Torres Strait Islander society. However research undertaken by Bolger shows that when traditional Aboriginal women were asked about rape and about the incidence of incestuous sexual assaults their responses are emphatic that it is not the Aboriginal way, that it is not in accordance with Aboriginal traditions or customary law. Pitjantjatjara women interviewed gave an example of how the uninvited attentions or harassment of a man would be dealt with:

"A woman was out gathering food and from behind a man stalked her and then grabbed hold of her. The woman was able to shake free of the man and ran back to her family to whom she reported the attack to. The woman's brother or mother's brother then went after the man and speared him in the thigh".

  1. The Pitjantjatjara women said that a man could be speared in the thigh or put to death for rape. They indicated that sexual assaults are serious and totally unacceptable. Aboriginal women and men interviewed on this issue are very clear on what constitutes correct social and sexual relationships and what relationships fall outside the strictures of the kinship system and customary law.
  2. The cause of violence against Aboriginal and Torres Strait Islander women are many and varied. Some commentators suggest that it is the result of Aboriginal and Torres Strait Islander men being deprived of status within their community, as providers for their families. Unemployment, itinerant labour patterns, imprisonment are contributing factors to this loss of status.
  3. Alcohol abuse by Aboriginal and Torres Strait Islander men and women also plays a part in the perpetration of violence against indigenous women. Some commentators have suggested that:

"Many Aborigines drink to dull the pain and despair resulting in their appalling living conditions, the effects of racism and discrimination, poverty and degradation.

  1. However drinking is not the cause of violence, nor does it excuse it. But alcohol abuse can intensify the level of abuse by breaking down inhibitions, so that frustration and anger which might have otherwise been under control are unleashed.

Urban Aboriginal and Torres Strait Islander women

  1. The ACT region was occupied by Aboriginal communities for at least 20,000 years before European colonisation. At the time of the colonisation the Ngunawal, Ngarigo and Walgalu people lived in or near the ACT. In the ACT region there are approximately 1,700 people who identify themselves as Aborigines or Torres Strait Islanders. These Aborigines and Torres Strait Islanders represent a variety of communities from different areas within Australia.
  2. Indigenous urban women have lost the power that the protection of being in a traditional community gave them. In an urban environment, Aboriginal and Torres Strait Islander communities are often deliberately scattered by white administration, in order not to create ghettos.

Issues of concern to Aboriginal and Torres Strait Islander women

  1. Whilst most women experience problems in accessing services and reporting sexual assault, indigenous women have additional barriers to overcome.
  2. At a recent conference, a workshop was presented on sexual assault issues relevant to Aboriginal women. The attitudes prevailing amongst police, within the legal system and service areas were identified as contributing factors in Aboriginal women not reporting sexual assault.
  3. Aboriginal and Torres Strait Islander women have commented that the Courts and police have historically been against indigenous people. There is a perception that there is little support for indigenous women in the Court system, that the Courts have a low opinion of indigenous women, that the Court system is foreign to indigenous people and that sexual assault is sometimes mistakenly considered to be part of indigenous culture. As a result, indigenous women have a lack of confidence in police and the legal system to provide protection or respond appropriately.
  4. Further, the lack of trust that indigenous people have for whites is a direct result of the history of European-Aboriginal relations within Australia. This includes relations with officialdom such as the police, lawyers, Court officials and welfare workers.
  5. Where the legal system has taken notice of Aboriginal culture, it has been argued that "appeals to Aboriginal customary law have been used in a way which legitimates physical and sexual violence against women. Arguments have been put to the Courts in cases involving the assault or sexual assault of indigenous women, that sexual assault is not viewed seriously in Aboriginal society, that it is customary for Aboriginal men to assault Aboriginal women and that the conduct of the woman, for example, in asking for a cigarette, was seen as an open invitation.

Service Areas

  1. There are no service areas within the ACT that deal specifically with problems faced by Aboriginal and Torres Strait Islander women who have been sexually assaulted. The Rape Crisis Centre did have an Aboriginal worker.
  2. While the Aboriginal Health Clinic - Winnunga Nimmityjah, deals with the physical and mental health of Aboriginal people, it does not provide specific services for women who have been sexually assaulted. However, workers at the Clinic pointed out that many indigenous women are silent about being sexually assaulted as they are concerned that other community members will find out or if the sexual assault was committed by a relative or partner that the traditional custom of "pay back" will be enforced against the male.
  3. Some of the ACT's women's refuges such as Beryl Women's Refuge and Doris Women's Refuge have indigenous workers. These workers are able to understand the unique problems faced by indigenous women who have been sexually assaulted.
  4. However, any services that are provided to indigenous women should take into account the Report of the Inquiry into the 'needs of urban dwelling Aboriginal and Torres Strait Islander people'. The report says that some services and programs provided for Aboriginal and Torres Strait Islander people are culturally inappropriate, difficult to get to and that urban Aboriginal and Torres Strait Islander people are discriminated against or excluded from using these services.

Case example

  1. In a recent decision in the ACT Supreme Court an Aboriginal woman was sexually assaulted by two Aboriginal men while they were intoxicated. In this case the Court accepted arguments presented for the defence, including a report presented by a psychologist that one of the offender's felt "deeply his loss of cultural heritage, particularly living as he does on his own people's traditional lands". Annexed to the psychologists report were observations concerning aboriginal attitudes and customs, indicating to the Court that acts committed under the influence of alcohol are regarded more leniently within Aboriginal communities.
  2. The Judge accepted evidence from the mother of one of the offender's , that "the victim was regarded as giving a bad example to Aboriginal women by her heavy drinking and previous disrespectful behaviour". The Court said that this does not excuse what happened to her, but did consider that it "does, perhaps, explain the apparent animosity that the prisoner house displayed towards her whilst he was intoxicated and engaged in the attack on her."

ISSUES

1. Is there a need for further information to identify the specific needs of indigenous women living in or near the ACT with respect to sexual assault services and to examine any barriers to reporting sexual assaults or utilising available services?

2. Should there be education provided to indigenous women on the process of reporting sexual assault?

3. Should members of the legal system, judiciary and police receive training on matters relating to indigenous culture?

Adult survivors of child sexual assault

How many?

  1. "Adult survivors of sexual assault" include that group of people who were victims of sexual assault as children but who did not disclose until adulthood, or perhaps have not yet disclosed. Passage of time and failure to report or disclose make it difficult to obtain an idea of how many people this affects. The best indication is probably derived from "phone-in" or "write-in" type surveys, where victims voluntarily respond.
  2. In the "Without Consent" survey sample 34.6% of the respondents said that they were survivors of incest as children. However, only 35% of these were responding to the survey because of the incest, the remainder were describing other rapes.
  3. In the NSW Sexual Assault Committee phone-in, 67% of the 860 female respondents had been sexually assaulted under the age of 16. In 58% of cases the offender was a family member. 37 male victims of sexual assault contacted the phone-in, 73% of these were victims of child sexual assault and in 41% of cases the offender was a family member.
  4. In the ACT it is really unknown as to how many people are adult survivors of sexual assault. The Australian Federal Police and the Rape Crisis Centre advise that they are receiving more calls from people who are now seeking counselling as adults for childhood sexual assault.

Evidentiary problems

  1. The above studies and others indicate that reports to police are less likely to be made where the offender is a family member. Reporting is also less likely to occur when the offence happened many years ago. As a result, we would not expect to see a large volume of cases being prosecuted where the sexual assault has taken place many years ago, simply because reporting rates are not high.
  2. Many victims do not report to the police because they believe that nothing can be done. Others have reported and found "that due to the lack of evidence and difficulty in prosecuting a case like mine the police were not interested at all in what happened.".Whilst it is the case that police will not and should not prosecute hopeless cases, the issue is whether their assessment is reasonable not whether they are interested.
  3. In the ACT it is not known how many reports to police are made each year, and how many of these cases are prosecuted. Similarly, a study of such cases would be required to accurately determine any particular difficulties experienced in conducting such a prosecution.
  4. One of the major problems would seem to be inconsistency in evidence as a result of memory being affected by the passage of time. It is unlikely that a victim would recall precise times and dates, places, or even details of the offences, especially if they have been "blocked out". Corroborating evidence that once existed may not now, the whereabouts of corroborating witnesses may not be known.
  5. Fairness to the accused in prosecuting an offence committed a significant time ago will be a major consideration. The accused may not be able to bring alibi evidence, for example, because the time and date details are imprecise, she/he cannot remember what occurred on those days, or potential alibis have moved away and cannot be located.
  6. Jurisdictional problems may arise, particularly where the assault occurred overseas, before the family migrated to Australia.

ISSUES

4. Should police have a specific protocol to deal with reports of childhood sexual assault from adult survivors, detailing, amongst other things, the minimum investigations that should be carried out and the criteria for not proceeding?

5. What difficulties confront both the police and the Director of Public Prosecutions in these cases?

Effect of assault on adult survivor.

  1. "Women sexually assaulted as children were the most likely to experience problems in their interpersonal relationships [94%]. This is likely to be a reflection of the enduring and extensive impact of incestuous abuse, which often occurs over a long period of time and represents a significant betrayal of trust." There is no reason to think that the effect on adult men is any different, although there is a lack of information on male victims.
  2. Presumably, both male and female victims would suffer from the same problems as all survivors of sexual assault, ranging from low self-esteem to drug use, eating disorders, suicide attempts, fear etc. For adult survivors of sexual abuse this may be compounded by years of keeping the abuse a secret and failure to seek counselling at an early stage. For many survivors, the abuse occurred at a time when incest was simply not spoken of and counselling facilities did not exist.

ISSUES

6. Are there sufficient counselling and support facilities in the ACT for adult survivors of sexual assault?

7. What support and counselling facilities exist for male survivors and are these sufficient?

Criminal Injuries Compensation

  1. This is dealt with in Part Two of this Issues Paper.
  2. One problem facing potential applicants is the time limit, whereby a claim must be lodged within twelve months of the date on which the injury was sustained. The Court can extend the time limit if it thinks it is just to do so. Generally, in the ACT, the Courts have taken a very liberal approach in cases of sexual assault and have been ready to extend the time limit to allow otherwise late applications.
  3. A Victorian woman recently had to take her case to the High Court, as a result of a decision of the Victorian Administrative Appeals Tribunal and the Full Supreme Court, refusing to award her compensation. Their reason was that she had not reported the assaults to police for many years and was outside the time limit. They rejected the claim that she had an acceptable reason for not making a claim within time. According to her lawyers, the woman was abused by a neighbour between the ages of 7 and 14. At 20 she saw a counsellor for other reasons and then started remembering the assaults. Eighteen months later she reported the incidents to the police, and another eighteen months later she sought compensation. During this period no-one had told her about her ability to claim compensation. During the tribunal hearing expert evidence was given on the impact of childhood sexual assault and the fact that it sometimes took years for victims to remember. The case was not heard by the High Court as it was 'settled' at the Court door, the appeal was allowed by consent and the matter was remitted back to the Victorian Crimes Compensation Tribunal for the assessment of compensation.

ISSUES

8 Should there be specific recognition in the Criminal Injuries Compensation Act for claims arising from sexual assault, or are the Courts providing this recognition anyway in allowing claims outside the time limit?

People with impaired mental functioning

  1. The problems in this area faced by people who have impaired mental functioning have been considered in detail by the Law Reform Commission of Victoria. The Commission states that:

"The law must balance two competing interests - protecting people with impaired mental functioning from sexual exploitation, and giving maximum recognition to their sexual rights."

  1. The Victorian Law Reform Commission uses the term "impaired mental functioning" to include mental or psychiatric illness, brain injury, dementia, senility and Alzheimer's disease and intellectual disability. The Commission recognised that mental illness and intellectual disability are quite distinct but that under the criminal law it is mental functioning that is at issue, irrespective of the cause of a mental impairment. This paper uses the same terminology to cover the same categories of mental impairment.
  2. Whilst the above definition is offered for the purposes of this paper, it is questionable whether any definition should be adopted in legislation on this issue. Within the criminal justice system, the question of whether a person is mentally impaired should properly be a question of fact determined by the Court on a case by case basis.
  3. Research conducted in New Zealand, the United States of America and Canada of 200 intellectually disabled people showed that service providers were responsible for almost a third of sexual abuse cases. The cases, "usually of repeated, chronic abuse - were rarely reported or investigated, and offenders were convicted in only about 8 % of cases." The study showed that cases were rarely reported because of victim's fears of punishment or loss of services and a belief that the justice system would not protect them. Those most at risk were intellectually disabled children, especially those in institutional care. There is no reason to think that these findings would not be relevant to Australia, or to the circumstances of people with mental impairment of all sorts, not just an intellectual disability.

Practical matters

Ability to communicate

  1. It is clear that people with a mental impairment are more vulnerable to sexual assault. They are often living in dependent situations. Their ability to communicate is often affected by their mental impairment, as is their understanding of the legal system. As a result, they are less likely to recognise a sexual assault or indecent act perpetrated upon them as a crime and are less likely to report this to the police or in fact to anyone else.
  2. The Victorian Law Reform Commission has considered whether specified people should be mandated to report incidents of sexual abuse. This is especially relevant in an institutional setting. The Commission recommended that guidelines be developed to cover reporting of incidents, recognising the right of a mentally impaired person to make a decision about reporting where they are capable of doing so. Reporting would generally be to a guardian or authority similar to the ACT's Community Advocate.

ISSUES

9. Should there be some form of mandatory reporting of sexual abuse perpetrated on persons with impaired mental functioning?

10. Should this apply only to people in institutionalised care?

11. Who should be mandated to report and to whom should reports be made?

  1. Where a person with a mental impairment does report a sexual or indecent assault, their difficulty in communication may result in charges not being laid. Where charges are laid a successful prosecution is less likely because no clear account can be given. Aside from communication difficulties, people with impaired mental functioning may have greater difficulty in recalling relevant details, especially if there is a time delay before the matter comes to trial.
  2. This is illustrated by a case conducted in the ACT Magistrates Court, where an intellectually and physically disabled girl alleged that she had been physically, not sexually, assaulted by her teacher. The girl gave evidence with her mother sitting beside her in the Court. As she was having difficulty giving evidence in the presence of the accused, his lawyer and the prosecutor agreed that he would wait outside the Courtroom. The major problem arose when she was cross-examined by the accused's lawyer. The Magistrate was of the view

"that it was impossible for the Court officers who had virtually no experience with how to communicate with R, to be satisfied that she was really understanding the questions that were being asked."

  1. The result was that the Magistrate treated the girl's evidence as not being subject to cross-examination, it therefore had less weight, and in the absence of any other evidence the Court could not find beyond reasonable doubt that the assault had occurred.
  2. In some cases the difficulty of obtaining evidence from a person with a mental impairment could be overcome by relying instead on the evidence of witnesses to the incident. It is a sad fact that many sexual assaults occur whilst the person is under institutionalised care, often by another resident. In some of these cases the assault is witnessed and sometimes partially prevented by staff. Currently, it appears that police are reluctant to charge and the prosecution is reluctant to proceed where the only evidence offered would be from witnesses, rather than the victim.
  3. The Evidence Act makes provision for persons who cannot communicate effectively because of a limited understanding of English or because they are unable to hear or to speak effectively. They are entitled to the use of an interpreter, unless the Court considers that this is not in the interests of justice. It would be an extraordinary case where someone in this position was denied the assistance of an interpreter.
  4. It is arguable that persons with a mental impairment should also be able to have an interpreter present to assist them in giving their evidence. People who are in close contact with the mentally impaired person are often able to communicate with them to an extent not available to strangers who do not know or understand the ways in which the person responds. In Victoria the police are required to have a person present who can facilitate communication when they are interviewing a witness (or suspect).

ISSUES

12. Should people with a mental impairment be subject to the same rules and procedures of the criminal justice system as apply to everyone else?

13. Should there be a specific provision, either in legislation or elsewhere, dealing with the use of witnesses in circumstances where the victim will have difficulty or will not be able to give evidence?

14. Should people with a mental impairment be allowed to have an interpreter to facilitate communication during police interviews and/or whilst giving evidence in Court?

15. Should victims with a mental impairment be able to give their evidence by closed circuit TV as children do?

16. Should protocols or guidelines be developed by the police and the Courts with respect to interviewing and taking evidence from people with a mental impairment?

17. Should trials be given a priority hearing where the victim has a mental impairment effecting memory?

Contact with the police

  1. When interviewing someone with a mental impairment, the AFP's Sexual Assault and Child Abuse Team use the Citizen's Advocacy Service or people who are associated with the interviewee to assist in obtaining the statement. The statement is sometimes, but not usually videotaped. The Committee understands that a common practice in Victoria with respect to children is to videotape the initial interview and show this to the suspect at the time he is interviewed. This apparently often results in admissions being made.
  2. There are many cases that come to the attention of the Sexual Assault and Child Abuse Team that never go to Court. In these cases the victim cannot express what has happened to them and has little or no concept of what has occurred. The assault may have been unwitnessed by anyone and is often brought to the attention of a carer by a comment made at a later date. The alleged offender is often also mentally impaired to the point where she/he does not have the capacity required by the criminal law to be held accountable.

Contact with the prosecution

  1. When a victim has a mental impairment the prosecutor assigned to the case will usually see her earlier and more often in an attempt to build confidence and ease of communication. The same prosecutor is not necessarily assigned to the committal and the trial, a procedure that would be easier on all complainants, but particularly those with a mental impairment.
  2. Delay in reaching trial is a significant problem, again for all victims, but for those with a mental impairment delay exacerbates their difficulty in recounting detail and recalling events. This is not a problem created by the prosecution, but a problem of the whole criminal justice system. Often delay is advantageous to the offender who will capitalise on any opportunities offered by the system.

Contact with the Community Advocate

  1. Some reports of serious crimes against people with a mental impairment are reported to the Community Advocate. This report may not be made immediately and the Community Advocate's role can be affected by this. The action taken by the Community Advocate upon receipt of a report of a sexual assault would be to immediately refer the matter to the police and monitor the police investigation. The Community Advocate has a policy of referring all reports of crimes against people with disability to the police. The Community Advocate also requests that steps be taken by the police to ensure the safety of the victim and attempts to ensure the needs of the victim are met.
  2. One issue of concern is the conducting of medical examinations after a sexual assault has occurred on a victim who does not or may not have the capacity to consent to such an examination. This has certainly occurred in the ACT. If the Community Advocate is notified then she would be in a position to safeguard the rights of a victim who is unable to give informed consent and determine whether the examination should proceed, or at least the appropriate course that should be followed. For a victim with a mental impairment a medical examination at this time could be just as traumatic as the assault itself.

ISSUES

18. Should police interviews with people with a mental impairment who are victims of a sexual assault be videotaped to overcome any later memory problems?

19. Should videotaped evidence be admissible?

20. Should time limits be placed on the prosecution and defence to ensure speedier trials?

21. Should there be a set of guidelines developed covering the role of the Community Advocate where a mentally impaired person has been assaulted?

22. Should guidelines be developed regarding the conduct of medical examinations after an assault?

Education

  1. Relevant authorities, that is, police, lawyers, prosecutors, Courts, probation officers and other related workers need to be educated to recognise when someone has a mental impairment and to develop communication techniques and practical changes that will maximise the ability of the mentally impaired person to have access to the criminal justice system. Equally, people with a mental impairment, particularly those in institutions who are most vulnerable to sexual assault, need to be given information in a manner appropriate to their level of understanding, about sexual assault and who can assist them if they are assaulted.

People with a physical disability

  1. Victims of sexual assault who have a physical disability are also very vulnerable players in the criminal justice system. Many victims who have a disability are unable to meet the requirements of making statements, giving evidence or having the physical stamina to participate in a criminal investigation let alone a lengthy trial. Similar considerations as those raised in relation to victims who have impaired mental functioning need to be considered in relation to victims with physical disabilities.

Male sexual assault victims

A Neglected problem

  1. There has been a lack of academic attention and social awareness of male sexual assault occurring within the community. This can create a vicious cycle, imposing silence on male victims.
  2. An inaugural National Seminar on Male Sexual Assault was held in Canberra in May 1994. Over 70 delegates, speakers, workshop facilitators and victims attended the seminar. The members of the seminar also made recommendations based on the premise that sexually assaulted males were being neglected across all services in the ACT including education, justice, health, welfare, drug and alcohol counselling.
  3. The recommendations included the need to raise community awareness of the existence of male sexual assault; the need for services dedicated to male victims; the need for State and Federal Health Departments to conduct needs analyses, the need to conduct research and collect statistics; pilot projects targeted at male victims of sexual assault; and the developing of policies and targeting of resources for all services that deal with male sexual assault victims including staff training.

Common experiences for male and female victims

  1. Studies have found that male and female victims suffer from similar problems in dealing with sexual assault. They often inappropriately assume responsibility for the sexual assault or fear that others will consider them responsible, suffer from depression, re-victimisation experiences, dissociative experiences, substance abuse and have difficulties in interpersonal relationships.

Restraints to males reporting sexual assaults

  1. Studies have shown that under-reporting of sexual assault is more of a problem with male compared to female victims. This could be because men encounter problems with traditional beliefs about masculinity, sexual orientation, gender identity, power dominance and self esteem issues. Further, in aggressive male cultures men are often afraid to be seen as weak, non-masculine or easy prey for further victimisation.
  2. Generally if male and female victims have similar problems dealing with sexual assault, it may not be necessary to have different counselling practices. Rather, it will be necessary for counsellors and workers in this area to have an understanding as to the barriers to reporting experienced by male victims and how they can be overcome.

Services presently available for male sexual assault victims

  1. At present there is no specific male sexual assault service in Australia. Existing health and welfare services deal with male victims of sexual assault, usually through various state and territory Health Departments.
  2. Workers and counsellors acknowledge that many men who have been abused go on to become abusers themselves. So, counsellors who are equipped to counsel male sexual assault victims may not be trained to deal with male sexual assault victims who are also perpetrators.
  3. The Woden Youth Centre has developed a Young Men's Support Project. The Project has developed a support program and network for young men who have survived physical and/or sexual abuse and prepared a training package to enable other workers to use the program in the future. Recently they have developed a counselling and referral list for victims, convened support groups, undertaken a phone-in survey, produced a resource kit and video as a training course, convened the National Seminar, established a library and are going to be developing a national data base.
  4. In 1991 the Woden Youth Centre did a 'Needs Analysis Survey' of the incidence of male sexual assault. The centre undertook a service provider's questionnaire in which they looked at various agencies such as the Phillip Health Centre, Belconnen Remand Centre, Life Line, Aids Action Council, Karralika, Erindale Police - Juvenile Aids Section, Canna Youth House, Queanbeyan Drug and Alcohol Service, Lasa Youth Refuge, McGuire House, Queanbeyan High School, ACT Department of Health, Quamby Remand Centre, Southside Refuge, Mental Health Services, Drug Referral Information Centre, Manly Youth Centre, Child Protection Unit (NSW), Street Link and Canberra Refuge - Short Term Crisis Accommodation. The Needs Analysis Survey indicated a need for a service, either dedicated or part of a existing service, to deal with male sexual assault victims.
  5. Through the ACT Department of Health there are Mental Health Branch Counselling Units in Belconnen, Civic, Woden and Tuggeranong. Clients have access to psychiatrists, psychologists and counsellors. However, workers have commented that many male victims are unaware of this service and those that are aware feel uncomfortable using it because they do not regard themselves as having a 'mental problem", because the service is situated within Mental Health Branch. Clients, on repeated visits, have not necessarily been able to see the same counsellor, which inhibits the development of a relationship of trust and has an effect on the long term benefit of such counselling.
  6. Counsellors at the Mental Health Branch of the ACT Department of Health have indicated the amount of male sexual assault referrals they receive is very low in comparison to other types of referrals. They suggest that a male sexual assault service should be incorporated into existing mainstream services.

The Woden Youth Centre 36-Hour Phone-In

  1. On 11,12 and 13 March 1994 the Woden Youth Centre conducted a 36 hour phone-in on male sexual assault. There were over 47 calls received with calls still coming in as a result of the phone-in. The phone-in found that many of its callers had been abused as children and had only disclosed their abuse as adults.
  2. One problem raised by the phone-in was the lack of crisis counselling services for male victims. The phone-in also indicated that a large number of male victims had addiction problems which they linked to their abuse. This raised the need for counsellors in drug and alcohol services to have access to quality training on sexual assault issues for male victims. Currently people are travelling to NSW to access this type of training through the NSW Health Department.

Effect of lack of services

  1. The lack of adequate services for male sexual assault victims has significant effects and costs on the community. Victims who have no access to appropriate services seem likely to continue to suffer major psychological problems which may result in physical and mental health problems.

Other jurisdictions

  1. At present, in every state (except the ACT and NT) there is a specific sexual assault unit based in the state hospital or Health Department. For instance in NSW the Royal Prince Hospital has a Sexual Assault Unit which deals with male sexual assault victims.

Male Sexual Assault Working Party

  1. A working party established under the umbrella of ACT Health has proposed that funds be allocated for counselling victims, researching the extent of male sexual assault within the ACT and developing service models.

ISSUES

23. What are the needs of male sexual assault victims? To what extent are they met in the ACT?

24. Is there a need for a specific male sexual assault service or should counselling for victims be incorporated into existing mainstream services?

25. Should additional research be undertaken on the effects and needs of male sexual assault victims?

26. Should health services include treatment options for perpetrators?

27. Should there be additional community awareness and education to the public of male sexual assault?

Victims from non-English speaking backgrounds

Brief Overview

  1. Despite the acceptance by Australian society of multiculturalism and the large numbers of non-English speaking background (NESB) women, very little is known about sexual assaults perpetrated against NESB women. There is very little information on the dimensions of the problem, the rate of its occurrence and the barriers for NESB women in accessing services and/or reporting sexual assault.
  2. NESB women have additional barriers to overcome in accessing services and reporting violence perpetrated against them. These barriers may be cultural but more often they are the result of culturally inappropriate institutions and structures.

Additional research on violence against NESB women is needed

  1. It is important for additional research to be undertaken on sexual assaults against NESB women, in order to understand the dimensions of the problem. At the same time this would enable service providers and mainstream organisations to develop strategies that are culturally sensitive to deal with NESB women who have been sexually assaulted.
  2. Some ethnic workers have commented that service providers and mainstream organisations are culturally insensitive to the needs of NESB women. In order to develop a culturally sensitive framework, service providers and mainstream organisations need to be aware of a number of factors. Firstly, settlement experience is extremely stressful for migrants. Financial difficulties, unemployment, concerns about relatives and friends in their former homeland, alienation from family and other support networks, language difficulties, difficulties in adjusting to the Australian culture and discrimination may be only some of the problems faced by migrants.
  3. Secondly, NESB women should not be identified as a homogenous group, as these women come from a conglomeration of different cultures, languages, classes, religions or rural/urban backgrounds. At the same time, the cultures that NESB women come from, should not be stereotyped. For instance a women who recently came from Bosnia-Herzegovina, who was seeking a protection order against her husband, was told by a service provider that "she could expect that sort of behaviour from men from the Balkan area as they are known for their violence".

Cultural Barriers

  1. Understanding the problems of reporting sexual assault by NESB women cannot be explained solely in terms of culture. Rather it should be seen as an additional stress that is imposed on already stressed NESB women.

Limited notion of sexual assault

  1. According to some service providers and ethnic social workers the perceptions as to what constitutes a sexual assault plays a crucial role in whether it is reported or not. One of the main problems in identifying whether a sexual assault has occurred is that women in this social context may not regard it as sexual assault. For example, forced intercourse by a woman's husband, whilst the act may be abhorrent to them, they may not recognise it as a criminal offence.

Fears of the police, legal system and service providers

  1. In 1991, the Australian Law Reform Commission carried out extensive consultations in relation to migrant's experience of the Australian criminal justice system. In Australia, criminal trials are run on an adversary system, whilst in contrast, many immigrants will be more familiar with a European inquisitorial system, involving a wide ranging judicial inquiry.
  2. Some particular problems raised by the Australian Law Reform Commission are that non-English speaking witnesses may misunderstand questions asked in Court, because of cultural or linguistic interpretations. The demeanour of the witness can be misinterpreted by people within the legal system. Many other problems have been identified by the Law Reform Commission's report.
  3. However, an additional problem in NESB women accessing the legal system is that ethnic workers themselves are not confident about the legal system. Some have commented on the recent remarks made by the judiciary in relation to sexual assault trials and believe that it may be more harmful for NESB women to report the sexual assault to police.
  4. A lack of confidence and knowledge of service providing organisations may prevent NESB women from accessing services. Research has shown that there is under-utilisation of services by NESB women. For instance in the case of domestic violence, 70% of NESB women were unaware of services that were available to them.

Fears about lack of confidentiality by interpreters and ethnic workers

  1. Many ethnic workers and service providers have commented on NESB women being concerned about discussing confidential issues with interpreters. Some service providers suggest that sometimes NESB women would prefer to talk to a service provider in their broken English rather than have a interpreter.
  2. In some instances there may be a justified fear by NESB women in discussing a sexual assault with interpreters and ethnic workers. However, in most cases ethnic workers and service providers have commented that they treat each case with the utmost confidentiality.

Institutional and Structural Barriers

Interpreters

  1. The most commonly identified problem for NESB women in reporting sexual assault is to communicate in English. As a result it is important for NESB women to have access to interpreters who are culturally sensitive and aware of the legal process. In the ACT the Translating and Interpreting Service (TIS) provides an interpreting service.
  2. Whilst TIS interpreters are qualified interpreters, ethnic workers and service providers have commented that it is difficult to obtain an interpreter with cross cultural-specific knowledge and skills which would allow them to understand the position of the individual woman for whom they are interpreting. Secondly, TIS interpreters, like many people, may not have a clear understanding of the legal process, particularly the process involving the investigation and trial of a sexual assault.
  3. An additional problem arises from the fact that TIS charges Government departments and some organisations for the use of its interpreters. Ethnic workers and service providers have given examples of some Government departments and organisations not calling on interpreters for aged people and women in situations of extreme stress. They have suggested that these government departments and organisations do not use interpreters because of the associated cost.
  4. Ethnic workers and service providers have also commented on a number of instances where some Governments departments, including the police, have relied on children, neighbours and even the perpetrator of the crime to act as an interpreter for NESB women who have been sexually assaulted.
  5. The Australian Law Reform Commission, in its Equality Before The Law: Justice for Women Report, indicates that some police officers are reluctant to use interpreters and the consequences that can result:

"There is also the risk that statements taken by police from victims of sexual assault and domestic violence in the absence