Is the Australian criminal justice system failing victims of rape? PDF

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Assessing the legislative process for victims of rape in Australia. Unraveling narratives and historical bias in the criminal justice system....

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Argumentative research essay 2 POLS20011 By Claire Language

Is the Australian criminal justice system failing victims of rape? Note: I will be using the term rape and sexual assault/violence interchangeably in this essay.

Word count excluding bibliography: 1891 Australia’s criminal justice system was established during colonisation, inheriting the same structures of the patriarchal British criminal justice system at the time. Since then, the Australian parliament and its judges have adopted and regulated the system into its own, yet it has remained predominately controlled by imperial forces due to the discriminatory nature of Australian colonial society. Throughout recent history, the Australian criminal justice system has attempted to make adjustments to its structures to incorporate some diversity but is yet to show any potential of achieving regulatory equality. An area of criminology that is particularly discriminatory in its approach to justice is the criminal justice system regarding rape. This essay contends that the current structure of the Australian criminal justice system for convicting rapists fails rape victims because it is regulated through a white, patriarchal perception of justice that protects rapists thus, not acting as a legitimate deterrent for perpetrators. I begin this essay by examining the philosophical basis of the Australian criminal justice system that is embedded in predominately white, patriarchal ideologies. My central thesis is that the criminal justice system in Australia regarding rape is particularly ineffective for minority groups considering the intersections of race, age, class, disability, gender, and the ability to seek legal justice in a discriminatory system. Furthermore, I will use a case linkage analysis to further articulate whether minorities are disproportionately more likely to be targeted because the justice system is designed to protect the demographic of perpetrators and discriminate against the demographic of victims. Since colonisation, Australia’s criminal justice system has been particularly discriminatory for minority groups considering its ownership by the British patriarchy. Legislation and conviction were assessed by those who maintained control over the Australian population, which was exclusively only accessible to the white patriarchy (Victorian Law Reform Commission, 2010). In the late 1900s, legislation went through reform as civil activism fought for anti-discrimination in educational and employment opportunities, allowing other groups to access legal responsibilities (Australian Law Reform Commission [ALCR], 2010, p.24.54). However, one area of criminology that has remained

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relatively rigid in its systematic approach since this time is the area regarding sexual violence. The current system that is mandatory in Australia for all states and territories for convicting a perpetrator of rape requires the victim to provide proof that penetration took place without consent, within an adversarial court system. This is ultimately determined by two factors: The provision of ‘necessary’ evidence to prove the prosecution beyond reasonable doubt, and the credibility of the victim versus the perpetrator using historically discriminatory frameworks (Australian Institute of Family Studies [AIFS], 2011, p.1). These two factors are particularly problematic for rape victims from minority groups for reasons that will be outlined in the following paragraphs. Presently, there is minimal insight into an appropriate alternative to the current legal systematic approach for convicting alleged perpetrators; and, considering the complexity of rape crimes is an extremely difficult area of law to determine. However, the lack of importance placed on re-evaluating the foundations of a philosophically discriminatory legal system and prioritising victims’ voices over those of the past is a significant reason why the criminal justice system is failing victims of rape. As mentioned above, legally what is required for an allegation to be processed into a conviction requires the provision of evidence in an adversarial court system that proves the prosecution beyond reasonable doubt. According to the legislation, the evidence must establish that firstly, a person had ‘sex’, secondly, the ‘sex’ was with another person, thirdly, that person did not consent to the ‘sex’ and finally, that the first person knew the other did not consent to the ‘sex’ (AIFS, 2011). Some evidence that will process the allegation includes the initial statement, eyewitnesses, and physical evidence i.e., DNA or sustained injuries (AIFS, 2017). Considering the nature of rape crimes, all of these forms of evidence are notoriously difficult to obtain. Firstly, the initial statement might be flawed when taking into account trauma at the time of the event as well as the potential of intoxication, and subsequently, if the allegation is delayed, its validity will be decreased. Secondly, rape usually occurs in private, without the presence of eyewitnesses. Lastly- physical evidence, injuries are usually not acquired and DNA is often not left behind. This also brings forth the issue of rape kits which are designed to act as physical evidence in a rape case; the ability to access this resource is dependent on a variety of factors. Minority groups are particularly more likely to be denied access to this resource when considering impediments such as language barriers, rurality or mental stability. However, it is a common narrative in the courts that the plaintiff’s word is sufficient grounds for prosecuting a perpetrator if the statement is considered ‘credible’. Nevertheless, recent data from the Australian Bureau of Statistics (ABS) criminal court statistics recorded only 17% of reported cases resulted in a conviction (Rosewarne, 2021). Clearly, these forms of evidence and credibility are required in conjunction with the plaintiff’s word to prove rape allegations beyond reasonable doubt, represented by the low conviction rates.

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The other determining factor in a rape case is individual credibility, which is assessed using a set of criteria developed by the judiciary. I will outline two of these criteria and highlight their discriminatory nature toward victims. Firstly, whether the defence has access to material that could undermine the victim’s credibility, such as previous psychiatric history (Australian Institute of Criminology [AIC], 2020, p.1). Access to this evidence is common in rape cases where the perpetrator is known to the victim which according to an Australian Institute of Health and Welfare report (AIHW) (2020), is four times more likely (p.8). Secondly, recollection and relation of facts, such as the victim’s memory being tainted by intoxication (AIC, 2020). According to 2016 statistics, 50% of rape cases occurred when the victim was intoxicated, whether that be voluntarily or involuntarily (AIHW, 2020). These regulations are enforced with the consideration of credibility as significant in all criminal cases, particularly rape cases where evidence is notoriously difficult to obtain to ensure the court doesn’t invoke a wrongful conviction. However, considering the prejudiced frameworks of these criteria, using ‘the potential of a false conviction’ as a defence to creating a more victim-centred legal system is prioritising the safety of rapists over the safety of victims. Ultimately, the concept of credibility is assessed using a discriminatory framework of whether those in privileged (the judge) or naive (the jury) positions can trust those in vulnerable positions, which reflecting on the low conviction rates is unlikely. Using these criteria to assess whether a victim’s allegations are correct is inherently swayed to mistrust victims considering the nature of the crime; in particular minority groups, making them incredibly unlikely to achieve justice in the current legal system. The repercussions of the Australian criminal justice system not addressing the discriminatory nature of the legal process for rape cases results in two major implications that support the central thesis. Firstly, a lack of reporting from victims, especially from minority groups, and secondly, the increased likelihood of perpetrators targeting these groups as a result. A 2021 report by the ABC estimated that 87% percent of sexual violence victims didn’t report their abuse to law enforcement officers (Kinsella, 2021). In the AIHW 2020 report, it was also highlighted that a victim was also less likely to report if they were associated with a minority group because they were aware that the system was prejudiced against them (AIWH, 2020). It was also identified in the report that research suggests those who are homeless, have a disability, are an adolescent, identify as Indigenous or Torres Strait Islander or identify as lesbian, gay, bisexual, trans, and gender diverse or have intersex variations are more likely to be the target of sexual violence, which may be related to their inability to seek justice (AIHW, 2020). This thesis is particularly difficult to verify as there are a variety of complex factors that make an individual more vulnerable to being a target of a sex crime. However, there is emerging data from the first case linkage analysis in Australia regarding rape that gives insight into the demographics of victims and perpetrators, suggesting a correlation between support from the justice system and the likelihood of the individual being a victim or a perpetrator.

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Case linkage analysis is a tool used in criminological research that compares documented legal cases to identify consistent demographics of perpetrators and victims and thus, use this information to identify risk factors in individuals. An analysis conducted by Davidson and Petheric (2020) compared the demographics of 250 serial and non-serial stranger rape cases. The final results indicated that 100% of the perpetrators were men in both serial and non-serial cases and women made up 99.2% of the victims in serial cases and accounted for 95.5% of victims in non-serial cases, finally, 75.2% of the perpetrators were identified as white (Davidson & Petheric, 2020). To add to these statistics, Davidson’s (2020) final thesis drew on several studies to emphasise that offenders, particularly serial offenders were white, single, and employed. There is a body of research available that highlights the consistent demographic of rapists as being the individuals the patriarchal legal system is designed to protect- white, ‘credible’ and male. On a further note, Davidson’s (2020) final thesis outlined that most serial offenders were calculated, showed forensic awareness, and used victim selection; this variability should be a focus of evaluation for the legal system. However, it is important to consider that the forms of official data drawn upon are made available by the court system and don’t necessarily reflect the entirety of events. This is a particularly important when analysing the data and reflecting on the intersections between reporting, conviction, and minority groups. However, the figures are significant enough to depict a major underlying flaw in the criminal justice system; the common demographic of rapists are protected and the common demographic of victims are mistrusted, making them incredibly more vulnerable targets to such crimes. In conclusion, the thesis is inherently reductionist in its approach to the issue of sexual violence but emphasises the current role of the criminal justice system in assisting with the reduction of violent crimes, particularly against the most vulnerable members of society. Considering sexual violence is a wicked problem, adjustments to the criminal justice system in Australia are not suggested as a solution to such a multi-faceted problem. However, looking at the current data available outlined in this paper, it is evident that the current structures for achieving legal justice in rape cases safeguard perpetrators rather than victims. Considering that this data also represents the majority of rape victims as being part of minority groups and the majority of perpetrators being from dominant groups, highlights the potential of perpetrators using this system effectively against victims, especially when reflecting on the demographics of serial offenders. Ultimately, this represents the crude reality of a legal system that has been designed and regulated through a white, patriarchal gaze; those considered ‘worthy’ of protection by the system are benefited and those deemed ‘unworthy’ of protection are discriminated against accordingly. In conclusion, the criminal justice system in Australia is not only failing victims of rape, but is accommodating rape; while contributing to the further marginalisation of minority groups and remains an area of urgent inquiry for governing parties.

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Reference list (APA 7) Australian Institute of Health and Welfare. (2020). Sexual Assault in Australia. https://www.aihw.gov.au/getmedia/0375553f-0395-46cc-9574-d54c74fa601a/aihw-fdv-5.pdf.aspx? inline=true#:~:text=The%20rate%20of%20finalised%20defendants,less%20than%201%20per %20100%2C000 Australian Law Reform Commission. (2010). History of activism and legal change. https://www.alrc.gov.au/publication/family-violence-a-national-legal-response-alrc-report-114/24sexual-assault-and-family-violence-2/history-of-activism-and-legal-change/ Davidson, S. (2020). Detecting serial rape: The role of offence behaviours in case linkage. [Doctoral dissertation/Master's thesis, Institution issuing degree]. https://pure.bond.edu.au/ws/portalfiles/portal/45240528/11.8.20_Davidson_PhD_Thesis_FINAL.pdf Davidson, S., & Petherick, W. (2020). Case linkage in Australian serial stranger rape. Journal of Criminological Research, Policy And Practice, 7(1), 4-17. https://doi.org/10.1108/jcrpp-01-20200016 Fileborn, B. (2011). Sexual assault laws in Australia. Australian Institute of Family Studies. https://aifs.gov.au/sites/default/files/publication-documents/rs1.pdf Kinsella, E. (2021). Keely has helped thousands of sexual assault survivors, but only knows two who’ve seen their abuser jailed. ABC News. https://www.abc.net.au/news/2021-03-14/convictionrates-for-sexual-assault-australia-calls-for-change/13230870 Lievore, D. (2020). Victim credibility in sexual assault cases. Australian Institute of Criminology. https://www.aic.gov.au/publications/tandi/tandi288 Rosewarne, L. (2021). The Politics of Sex POLS20011 lecture 7 Semester 1- 2021 [PowerPoint slides]. https://canvas.lms.unimelb.edu.au/courses/103358/pages/week-7-the-politics-of-sexualviolence?module_item_id=2705779 Victorian Law Reform Commission. (2021). The history of the common law adversarial criminal trial and the experiences and needs of victims of crime. https://www.lawreform.vic.gov.au/content/2history-common-law-adversarial-criminal-trial-and-experiences-and-needs-victims-crime-0

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