The criminal justice system is letting down survivors of sexual assault, but we can do more to ensure the voices of victims are heard, Professor Lorana Bartels and Dr Rhiannon Davies write.
Silence and shame have long been the status quo for victims of sexual abuse.
speech, the innocent, survivors and bystanders alike, are burdened by a shame-induced silence,” “While predators retain the power to get what they want, to objectify their targets through free speech, the innocent, survivors and bystanders alike, are burdened by a shame-induced silence,” Australian of the Year Grace Tame said during her powerful National Press Club address in March 2021.
A survivor of child sexual abuse and advocate for the right of survivors to tell their own stories, Tame is breaking the silence and transferring the burden of shame back to where it belongs—with perpetrators.
“It is so important for our nation, the whole world, in fact, to listen to survivors’ stories. While they’re disturbing to hear, the reality of what goes on behind closed doors is more so. And the more details we omit for fear of disturbance, the more we soften these crimes. The more we shield perpetrators from the shame that is resultantly misdirected to their targets,” Tame said.
Tame’s advocacy, alongside allegations made by Brittany Higgins of rape in a parliamentary office, has emboldened women and their allies to take to the streets across Australia demanding an end to gendered violence and inequality. With this unprecedented focus on the needs of female survivors of sexual offences, the inadequacy of the criminal justice system in responding to those needs is also in the spotlight.
In recent decades, recognition has increased that victims, especially victims of sexual offending, may be retraumatised by the criminal justice process. There has also been increasing recognition that some victims wish to speak about their experiences and may find this therapeutic.
The #LetHerSpeak and #LetUsSpeak campaigns have been successful in overturning laws in Tasmania, Victoria and the Northern Territory that prevented sexual assault survivors from using their real name in the media, unless a court makes a special exemption order.
Now, survivors in these jurisdictions are free to self-identify in the media if they are over 18 and meet certain other conditions—without risk of prosecution to themselves or others. Tame’s case was a catalyst for the #LetHerSpeak Tasmania campaign.
Campaign law reform achievements to date
In April 2020, Section 194K of Tasmania’s Evidence Act 2001 was reformed. Survivors of sexual assult are now free to self-identify in media provided they are over 18, consent in writing, have not been coerced, and there are no ongoing proceedings. They must not identify other victims without permission.
In April 2020, several euphemistically titled sexual offences were renamed to reflect the gravity of the crime. This includes the offence of “maintaining a sexual relationship with a person under the age of 17” which is now named “the persistent sexual abuse of a child”.
In July 2020, the NT’s Sexual Offences (Evidence and Procedure) Act 1983 was reformed. Survivors of sexual assult are now free to self-identify in media provided they are over 18, consent in writing, have mental capacity to consent to be named, and there are no ongoing proceedings. They must not identify other victims without permission.
In November 2020, the Victorian Judicial Proceedings Reports Act 1958 was reformed. Survivors of sexual assult are now free to self-identify in media provided they are over 18, consent in writing, have mental capacity to consent to be named, and there are no ongoing proceedings. They have the power to tailor consent, but must not identify other victims without permission.
Victim impact statements are another mechanism that provides victims with the opportunity to share their experiences. Impact statements were introduced in the 1970s, as part of reforms intended to reduce the retraumatisation of victims of sexual offending by the criminal justice process. When a person pleads guilty or is found guilty by a court, a victim of their offending may make a statement to tell the court how the crime affected them physically, emotionally, financially and socially. This statement can be considered by the court when sentencing the offender.
At best, victim impact statements provide a platform for victims to share their stories in a way that contributes to the healing process and reduces community stigma around sexual assault. For example, in the United States, the statement from the then anonymous victim-survivor of the ‘Stanford rape’ case went viral after it was published online by BuzzFeed and viewed by 11 million people in just a few days. Later, the survivor Chanel Miller decided to go public with her name and shared her experiences in the powerful memoir Know My Name. As a result, thousands of people wrote to Miller to say she had given them the courage to speak out about their own stories of sexual assault for the first time.
However, our research has revealed problems with the way victim impact statements are managed in the Australian justice system and that this is retraumatising victims.
Victoria In 2020, the campaign temporarily thwarted the Victorian Government’s attempts to criminalise the naming of deceased rape victims including Jill Meagher, Eurydice Dixon, Aiia Maasarwe and others. In 2021, the government intends to debate the issue again. The campaign will work to counter aggressive censorship attempts, while ensuring the voices of affected families are heard and respected.
Our study aimed to gain a better understanding of victims’ perspectives of victim impact statements, how judges use the statements in sentencing and recommend best practices from a victim-focused perspective. We examined judges’ sentencing remarks in 100 sexual offences cases from courts in Victoria, South Australia, Tasmania and the Australian Capital Territory; conducted interviews with justice professionals who work with victims; and, importantly, interviewed women who were victims of sexual assault and submitted a victim impact statement.
We found that there was an overarching lack of clarity around the purpose of impact statements. We also found issues in how justice professionals communicate with victims about victim impact statements and the justice system more generally. For example, one woman we interviewed said she had to regularly ask officials what was happening, which “did lead me to feel I had become a passenger on someone else’s journey”.
In addition, our analysis revealed problems with the ways judges acknowledge victims in their sentencing remarks. One of the women we interviewed was uncomfortable with the judge sharing significant personal details from her victim impact statement, particularly because of the media interest in the trial. In some of the other cases we examined, judges made only brief reference to the victim’s statement and experience, which did not seem to adequately recognise the impact of the offence on them.
‘Trish’, a Victim Support Officer in Victoria, summarised the problem clearly:
“[Victims] feel uninformed, they don’t understand the process, they feel out of control within the process in terms of how long it takes, what happens and what their role is within it. I think it’s a real problem. I think it retraumatises the vast majority of victims who have experienced sexual assault, by the nature of how the process operates.”
Based on these findings, our recommendations to better support and empower brave women survivors of sexual assault within the justice system are clear. We need to:
- clarify the purposes of victim impact statement regimes;
- reform victims’ rights frameworks, to ensure victims receive appropriate information about the progress of their case through the criminal justice system;
- provide communications skills training for justice professionals, to improve communication between justice professionals and victims of crime;
- give victims succinct information about court processes in visual form, including relevant definitions and flowcharts depicting the justice process;
- develop a victim-focused benchbook, to guide judges concisely and clearly through the ‘dos and don’ts’ of therapeutically acknowledging victims in their sentencing remarks; and
- introduce a court mechanism to enable judges to be informed, prior to sentencing, if there is material in a victim impact statement that is particularly sensitive and should therefore not be outlined in detail in the sentencing remarks.
While these recommendations have the potential to minimise retraumatisation and improve the administration of justice for some victims, the fact is that most sexual assaults in Australia do not result in a conviction. This means most victims will not have the opportunity to provide a statement to the court about the impact of what they experienced. There is much work to be done to support these women to have their voices heard and increase the therapeutic value of the justice process.
The research in this article is based on Dr Rhiannon Davies’ PhD, ‘Stories of Pervasive Uncertainty: A Victim-focused Analysis of Victim Impact Statements and Sentencing in Sexual Offence Cases’, which she completed at the University of Tasmania.
Top image: Tingey Injury Law Firm/Unsplash
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