Building capacity of the justice system to effectively address and prevent sexual violence

The presence of the gendered drivers of violence against women, myths and misconceptions about sexual violence, and the perpetration of sexual harassment within the justice system limits its capacity to deliver safe, just, and effective responses to sexual violence. To counter this, it is vital that the individuals, organisations, and institutions within the justice system are supported to build the knowledge, skills and capabilities to contribute to an environment where sexual violence – its nature, prevalence, drivers and impacts - are properly understood and addressed and where the drivers of violence are actively challenged and prevented.

As outlined above, we know that many Australians still hold harmful attitudes that minimise, excuse, or normalise sexual offending and reinforce dangerous misconceptions about the how the perpetration of this violence occurs (8). The high levels of sexual harassment observed within the legal profession indicate that those working within the justice system are not immune from also holding these harmful views. As highlighted in the VLRC’s 2021 review Improving Justice System Responses to Sex Offences, law reform must be accompanied by cultural change (1). Without broader cultural change, there may be an ‘implementation gap’ between the procedural reforms to improve justice responses to sexual violence and what happens in practice (1).  

Training for judges and legal practitioners

In response to Issues Paper, Question 33, there is considerable merit in establishing specialist sexual violence training and accreditation for judges and legal practitioners. However, the prevalence of sexual violence, and number of justice system elements that people who use and experience violence come into contact with, means that broader cultural change is also essential. This cultural change requires that everyone working within the justice system be given adequate education on sexual violence, including training on the nature of sexual violence, the gendered drivers of this offending, and idenitifying and countering misconceptions about sexual violence.  

Additional specialist training and accrediation processes could then also be considered for judges, legal practitioners, and police who are routinely dealing with sexual assault cases. This would include considering the merits and feasibility of mandating sexual vioelnce training for judges hearing sexual offence cases and police prosecutors and lawyers involved.

Any such training should be developed in consultation with primary prevention experts, survivor advocates, and representatives from the specialist sexual violence sector and include:

• accurate and evidence-based information on the gendered drivers and reinforcing factors of violence against women and the additional, specific factors that drive men’s use of sexual violence against women, as outlined in Change the Story, Australia’s national framework for preventing violence against women (3)
• the nature, prevalence and gendered nature of sexual violence
• barriers to reporting sexual violence and accessing just outcomes commonly experienced by different cohorts of victim-survivors within Australia, including women, First Nations people, people from culturally and linguistically diverse backgrounds, people with disability, people who identify as Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual or another gender or sexuality, and other marginalised groups outlined in the Terms of Reference for this inquiry  
• the ways in which trauma, particularly sexual trauma, can impact a person’s behaviour and memory
• education and practical guidance for countering commonly held misconceptions or ‘rape myths’.

As outlined on page 19 above, there are opportunities to consider how such training – alongside broader prevention initiatives – could be incentivised and/or required through existing frameworks. For example, there may be opportunities to explore how training could be incorporated through:  

• pre-service training and/or ongoing professional development for Police
• continuing professional development for legal practitioners and/or admission qualifications, such as the College of Law program
• existing and/or newly developed, specialist accreditation for legal practitioners, mediators and other practitioners involved in sexual violence matters.

Specialist lists

In response to Issues Paper, Question 33, the creation of specialist courts, sections, or lists to hear sexual offence cases holds considerable merit. In Victoria, it is common practice that commercial and common law divisions of the courts have ‘specialist lists’, which allows matters to be overseen by judicial officers with expertise in that area of law or practice (68, 69). However, it is not current practice for specialist lists to be established in relation to criminial matters. The introduction of specialist lists to hear sexual offence cases would contribute to safeguarding the effectiveness of justice responses to sexual violence, while broader systemic reforms are implemented. Further, the existence of specialist lists could assist in prioritising early roll-out of broad-based training to those working within the lists.  

With respect to specialist court lists, careful consideration of the feasibility and practicality of these would need to be explored. This includes considering how any new lists or courts would interact with existing, related specialist courts, such as Victoria’s network of specialist Family Violence Courts, as well as matters where multiple forms of violence or criminal conduct have been perpetrated. Victoria’s Specialist  

Harmonising consent laws

Strengthening laws relating to consent, including through the effective implementation of an affirmative consent model, is an important mechanism to support the prevention of sexual violence. The primary prevention of sexual violence involves building the capacity of individuals to understand and practice free, voluntary and enthusiastic consent in a manner that emphasises communication, respect, and mutual pleasure; while reforming our systems and structures to create an environment that supports individuals to apply this within their relationships (6). Affirmative consent legislation contributes to this enabling environment, by sending a clear message to the community about what constitutes consent and holding those who don’t practice this to account (26).  

As noted above, a number of jurisdictions including Victoria, New South Wales, Tasmania, Queensland and the ACT have recently introduced affirmative consent reforms. However, there remain significant variations across States and Territories in terms of how consent is defined and interpreted, and how the reforms have been rolled out. In this context, there is a significant opportunity to harmonise consent laws and deliver a uniform, national approach that embeds an affirmative model of consent.

As highlighted by the recent Senate inquiry into ‘Current and proposed sexual consent laws in Australia’, in addition to introducing affirmative consent models, there are significant benefits to ensuring consent laws are harmonised across states and territories (7). Harmonisation eliminates jurisdictional inconsistencies, minimises confusion, and enables education and awareness raising about sexual assault to be nationally relevant (7). Ensuring that all states and territories implement nationally consistent, strong models of affirmative consent is a key opportunity to increase the justice system’s capacity to address and prevent sexual violence.  

However, as outlined above, legislation alone will not create the cultural change required to transform behaviours around consent and sexual violence. In order to harness the full preventative potential of reforms to consent law, it is crucial that any legislative changes are accompanied by dedicated resourcing for implementation, evaluation and community education and that they are connected with broader primary prevention efforts.  

Nationally consistent guidance

In response to Issues Paper Question 24, Respect Victoria recommends the Australasian Institute of Judicial Administration develop a National Sexual Violence Bench Book or review and strengthen the existing National Family and Domestic Violence Bench Book to ensure it incorporates evidence-based information about sexual violence and the gendered drivers of violence. In addition, such guidance should ensure up-to-date, nationally consistent guidance on the restriction of cross-examination that reflects myths and misconceptions about sexual violence. Reviewing and revising evidentiary processes and restrictions in this way would be an important mechanism to ensure the content delivered in training is reinforced day-to-day in the courtroom.  

We note that development of a National Sexual Violence Bench Book was recommended by the Senate Standing Committee on Legal and Constitutional Affairs in its recent inquiry into Current and Proposed Sexual Consent Laws in Australia (7). It has also been recommended by Our Watch in their submission to this inquiry (70).

Bench books are an effective mechanism for delivering consistent and comprehensive guidance on spefical legal issues, as they are a central resource for all judicial officers. They provide background information on a particualr area of law, supported by current research, and outline guidance on procedural issues (71). Australia currently has a National Domestic and Family Violence Bench Book, which supports judicial officers considering legal issues relevant to domestic and family violence related cases (71). However, this current bench book only discusses sexual violence within the context of domestic and family violence, which has limited application to sexual offences perpetrated in other contexts (71). Furthermore, the National Domestic and Family Violence Bench Book does not directly dispell common myths and misconceptions relating to sexual offences pereptrated outside of an intimate partner relationship (71).  

The introduction of a national bench book that specifically addresses sexual violence, or extending the existing National Domestic and Family Violence Bench Book to include this, is a key opportunity to deliver nationally consistent, safe, and effective justice responses to sexual violence. A revised Bench Book would help ensure judicial officers presiding over sexual offence cases are informed by the most accurate and up-to-date evidence about sexual violence and support fair proceedings and outcomes. As highlighted within Women’s Legal Services Australia’s submission to this inquiry, there are multiple opportunities to improve guidance relating to procedural matters to ensure that misconceptions about sexual violence are addressed (60). This includes ensuring jury directions address misconceptions about consent, trauma, and sexual violence and that sexual reputation evidence be ruled inadmissible in all circumstances (60). Further, a revised Bench Book could assist in identifying where expert witnesses might be helpful to ensure the court is informed by appropriate psycho-social evidence about the impacts and presentations of sexual violence on victims, the patterns, motivations and behaviours of perpetrators, and the prospects and options for rehabilitiation and reducing recidivism. In particular, it would also assist judicial officers to both check their own assumptions and those of the practitioners and witnesses in their courts. In doing do, this would assist judicial officers to limit cross-examination or argument that reflects rape myths and common misconceptions about the nature of sexual violence and which may unduly bias the outcome of a particular case. Moreover, it could also assist judicial officers to understand and reflect on the potential influence (both positive and negative) of their comments and judgments on broader community attitudes towards sexual violence and gender-based violence.  

Strong specialist sexual violence sector and community legal assistance sector

As outlined above, barriers to reporting sexual violence and accessing justice, and harmful attitudes and misconceptions about sexual violence remain within the justice system and the community at large. A robust and suitably supported sexual assault services sector, primary prevention and community legal assistance sector are key to addressing these issues. They do this through providing trauma-informed support to help victim-survivors safely access and navigate the justice system, and also by countering harmful attitudes and misconceptions about sexual violence and holding individuals within the justice system to account. These workforces, including survivor-advocates, hold considerable expertise to help strengthen justice responses and harness the preventative potential of the justice system.

Victoria has a strong history of nation-leading family violence reform, including in the design and delivery of victim-survivor supports, system improvement and primary prevention. The Victorian Government has implemented all 227 recommendations from its 2016 Royal Commission into Family Violence (including those pertaining to sexual violence), investing more than $3.8billion (72). In the 2024-25 State Budget, the Victorian Government made additional commitments to delivering victim survivor support services, sexual assault services and critical workforce supports such as staffing the peak body Sexual Assault Services Victoria, as well as seeking to drive down family and sexual violence through investing in primary prevention research and initiatives, and early intervention programs (73). As Victoria’s reform efforts continue to progress, it is important that learnings pertaining to improving justice responses to sexual violence are shared among jurisdictions to support nation-wide progress.  

Victoria’s Justice Navigator Pilot program, outlined above under current promising practice, highlights the potential of the sexual assault services sector to support access to the justice system and enable safe and effective justice responses. Respect Victoria encourages other jurisdictions to learn from the delivery of this pilot and consider the merits and feasibility of implementing similar models. The rationale for and learnings arising from this pilot may also inform other steps required to ensure a strong and suitably resourced sexual violence services sector, primary prevention sector, and community legal services sector is in place across Australia. The sector could provide trauma-informed and effective support for victim-survivors, ensure safe and just legal outcomes in sexual violence cases, and maximise opportunities for mutually reinforcing prevention messages and initiatives throughout the justice system.

Culturally safe services and supports for both victim-survivors and those at risk of perpetrating violence

Given the high degree of under-reporting and the unique barriers to justice faced by First Nations victim-survivors of sexual violence, it is also important to consider opportunities to strengthen cultural safety and self-determination across the justice system and continue to invest in First Nations-led prevention and early intervention.

As noted in Djirra’s submission to this inquiry, First Nations women encounter additional barriers to disclosing and to accessing the justice system, as their experiences are further compounded by racism and distrust (74). First Nations women may be reluctant to access the justice system due to fear of receiving a punitive response, such as child removal or misidentification (74). Further, cases involving First Nations women who have allegedly experienced sexual assault are less likely to achieve a successful prosecution (74).

To address these issues and ensure more equitable access to the justice system, First Nations women need access to independent, self-determined justice responses to sexual violence. Aboriginal Community Controlled Organisations (‘ACCOs’) are best placed to provide accessible, culturally safe spaces for First Nations women to disclose sexual violence, access support, and recover and heal, while creating pathways to accessing legal assistance and justice responses (74).

In its 2021 review into Justice Responses to Sexual Violence, the VLRC recommended an Aboriginal sexual assault services model. This recommendation responded to calls from Aboriginal community organisations for an Aboriginal community-run sexual assault service and reflected the importance of Aboriginal community-controlled responses to family and sexual violence as highlighted within both the Victorian Royal Commission into Family Violence and the Royal Commission into Institutional Child Sexual Abuse (1). The VLRC stated (1):

“8.38.    [An Aboriginal community-run sexual assault service] is needed because of service gaps in the current sexual assault system, not because there is any connection between Aboriginal culture and violence. Violence is not part of Aboriginal culture, but whole of community approaches are important to respond to Aboriginal experiences of violence.⁷²

8.39.    An Aboriginal sexual assault service is needed to provide:  

a culturally safe and appropriate service that connects with Aboriginal healing approaches  

more options for Aboriginal people who have experienced sexual violence (in addition to mainstream service options).⁷³

8.40.  It would also be an important form of self-determination. Self-determination  

involves responses to sexual violence being ‘designed, developed, led and evaluated by ACCOs [Aboriginal Community-Controlled Organisations]’.⁷⁴ It is recognised as:  

the key strategy to generate sustainable and systemic change to benefit the cultural, physical, spiritual, economic, social and emotional wellbeing for Aboriginal people, families and communities.—Aboriginal Justice Caucus.⁷⁵

We respectfully recommend the ALRC consider this recommendation. We also encourage the ALRC to consult with First Nations communities and specialist Aboriginal Community Controlled Organisations with expertise in family violence and violence against women about the merits of considering an adapted Justice Navigator role or alternative localised, community-led model to ensure culturally safe and trauma-informed support for First Nations victim-survivors of sexual violence.

In April 2023, Respect Victoria published two pieces of research into First Nations-led prevention. This research comprised an Aboriginal Family Violence Prevention Evidence Review (75) and an Aboriginal-led Prevention Mapping Project (76), both of which were undertaken by Urbis Consulting in partnership with Karen Milward, and commissioned by Respect Victoria and Family Safety Victoria for the Dhelk Dja Partnership Forum. The purpose of the Evidence Review was to document available evidence on effective Fist Nations-led prevention. It looked at what works best, and where there are gaps in our knowledge. It reviewed evidence across Victoria and Australia, as well as New Zealand, Canada and the United States. It identified certain enablers that support effective First Nations prevention approaches, including long-term funding, strengthening workforce capacity, culturally safe service delivery, and ongoing investment in monitoring and evaluation (75). The Aboriginal-led Prevention Mapping Project identified and mapped the broad range of government-funded prevention initiatives, mostly delivered by Aboriginal Community Controlled Organisations, across a range of settings. The report found that much of this work is being done with limited resourcing and that current funding is not commensurate with the size of the need and the time required to achieve prevention outcomes (76).

Ensuring the ongoing design and delivery of First Nations-led prevention at scale, along with culturally safe and First Nations-led supports for victim-survivors, are an essential element of improving the operation of the justice system with respect to sexual violence.