Justice Responses to Sexual Violence Submission

Respect Victoria acknowledges Aboriginal peoples throughout Victoria as the First Peoples and Traditional Owners and Custodians of the lands and waterways on which we rely. We pay our respects to their Elders, past and present. We proudly acknowledge Aboriginal communities throughout Victoria and their ongoing strength in practising the world’s oldest living cultures.

We acknowledge the significant and ongoing impacts of colonisation and commit to working alongside First Nations communities to effect change. We recognise the ongoing leadership role of these communities in addressing and preventing family violence and violence against women, and will continue to work in collaboration with First Peoples to eliminate these forms of violence from all communities. 

Respect Victoria welcomes the Australian Law Reform Commission’s inquiry into justice responses to sexual violence. As Victoria’s dedicated agency for the primary prevention of family violence and violence against women, Respect Victoria welcomes the Commission’s focus on sexual violence and its recognition of the gendered nature of this violence.  

The sexual violence cases that enter the civil and criminal justice systems (referred to throughout this submission as ‘the justice system’) represent only the tip of the iceberg of what is a complex, pervasive, and widespread social issue across Australian society. To address this, it is vital that we ensure justice responses to this violence are trauma-informed, safe and effective, while also taking every opportunity to stop sexual violence from occurring, escalating, or reoccurring.

Our submission highlights the role of whole-of-population and cohort-specific primary prevention approaches in supporting strong justice responses to sexual violence, including through building the knowledge, skills, capabilities and accountability of those working within the system. Our submission also explores opportunities to harness the justice system to help drive the long-term systemic and cultural change required to eliminate sexual violence. This includes the role of:

• whole-of-population prevention efforts in reducing sexual offending over time and alleviating demand on the justice system, improving its ability to deliver timely responses
• the role of the justice system in shaping and reinforcing social norms about sexual violence, consent and relationships and what behaviour is, and is not, acceptable in our society
• prevention initiatives and community education in dispelling common myths, misconceptions, and harmful attitudes relating to sexual violence that create barriers to reporting, limit access to the justice system for victim-survivors and reduce accountability for perpetrators
• the attitudes, beliefs, values and capabilities of people working within the justice system in enabling safe, just and effective responses to sexual violence.  

There has been considerable work in Victoria that touches on the Terms of Reference for this inquiry, including the Victorian Law Reform Commission’s (‘VLRC’) 2021 review, Improving Justice System Responses to Sex Offences (1) and the Victorian Victims of Crime Commissioner’s report Silenced and Sidelined: Systemic inquiry into victim participation in the justice system (2). These reviews acknowledge the critical intersection between strong justice system responses to sexual violence and whole-of-population approaches to violence prevention. We encourage the Australian Law Reform Commission to consider the approaches taken and recommendations made in these inquiries.

Our submission addresses the following elements of the Terms of Reference:

• 1a: Laws and frameworks about evidence, court procedures/processes and jury directions
• 2a: Laws about consent (noting we would be happy to be consulted further on this as required)
• 1c: Policies, practices, decision-making and oversight and accountability mechanisms for police and prosecutors
• 2c: Training and professional development for judges, police, and legal practitioners to enable trauma-informed and culturally safe justice responses
• 3c: Support and services available to people who have experienced sexual violence, from prior to reporting, to after the conclusion of formal justice system processes.

In addition, our submission provides responses to the following questions posed by the Issues Paper:

• 24: Should cross-examination that reflects myths and misconceptions about sexual violence, such as the belief that a ‘rape victim’ would be expected to complain at the first reasonable opportunity be restricted on the ground that it is irrelevant or on any other ground?
• 33: Do you support specialised training for judges who conduct sexual offence cases? What issues should that training address?

Recommendation 1

The ALRC recognise and highlight the importance of evidence-based and adequately supported whole-of-population and cohort-specific primary prevention efforts to:

1. prevent sexual violence from occurring
2. enable safe and supported disclosures of sexual violence and the provision of accurate, trauma-informed advice to victim-survivors about their legal (and other) options
3. facilitate victim-survivors to safely report sexual violence and access the justice system, should they so wish
4. support trauma-informed, just and effective justice processes and outcomes that hold perpetrators of violence to account.

Recommendation 2  

The Australian legal sector commit to whole-of-organisation and whole-of-setting primary prevention, including through:

1. supporting and building on existing work and promising practice  
2. partnering with prevention experts and specialist sexual violence services to design and deliver primary prevention programs and activities across justice workplaces and settings
3. exploring opportunities to require and/or incentivise uptake, for example through embedding prevention training within continuing professional development systems, pro bono legal service provision and/or eligibility criteria for private law firms to access government legal panels.

Recommendation 3  

Australian governments explore the merits and feasibility of:

1. the establishment of specialist sexual violence courts, sections or lists (and how these might interact with existing specialist family violence courts where they are in place)
2. requiring all judges who conduct sexual offence cases to undertake comprehensive specialised training
3. reviewing current evidentiary restrictions and developing up-to-date, nationally consistent guidance to limit cross-examination that reflects myths and misconceptions about sexual violence  
4. establishing specialist training and accrediation for lawyers and prosecutors involved in sexual offence matters.

Recommendation 4

Any general or specialist sexual violence training rolled out within the justice system is developed in consultation with experts from the primary prevention of violence against women sector and specialist sexual violence sector and includes:

1. 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
2. the nature, prevalence and harms of sexual violence
3. 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  
4. the ways in which trauma, particularly sexual trauma, can impact a person’s behaviour and memory
5. education and practical guidance for countering commonly held misconceptions or ‘rape myths’ that may arise within the justice system and the community more broadly.

Recommendation 5

Australian Governments explore opportunities to strengthen and harmonise consent laws nationally, ensuring consistent application of an affirmative consent model.

Australian Governments ensure reforms to consent laws are accompanied by community education, training and evaluation and connected to broader prevention efforts.

Recommendation 6

The Australian Institute of Judicial Administration develop a National Sexual Violence Bench Book, or strengthen the existing National Family and Domestic Violence Bench Book, to incorporate evidence-based information about sexual violence and the gendered drivers of violence.

Recommendation 7

Findings from Victoria’s Justice Navigator pilot are shared nationally to inform consideration of the merits and feasibility of rolling out similar models in other States and Territories.

Recommendation 8

A strong sexual violence services sector and community legal assistance sector is available in all jurisdictions to provide specialist trauma-informed supports to victim-survivors of sexual violence, and support mutually reinforcing prevention messages throughout the justice system.

Recommendation 9

The ALRC consult with First Nations communities and Aboriginal Community Controlled Organisations with expertise in sexual violence and violence against women to explore opportunities to:  

1. ensure the availabillity of culturally safe and appropriate, specialist sexual assault services
2. strengthen Aboriginal-led and evidence-informed, primary prevention initiatives.