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A Best Practice Model for the

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									                         A Best Practice Model for the


  Prosecution of Complaints of Sexual Assault

                   by the NSW Criminal Justice System




‘The UN Committee on the Elimination of Discrimination against
Women expressed concern about the high level of violence against
women, and the low rates of prosecution and convictions in sexual
assault cases.’
Excerpt from Amnesty International’s report on Australia 2007




Prepared by:
NSW Rape Crisis Centre, and
Dr Anne Cossins, Senior Lecturer in Law, University of NSW
May 2007

                                               1
Index


        3    Executive summary

        4    Introduction

        5    One Stop Unit

        6    Specialist Sexual Assault Courts and Case Management

        8    Law Reform

        9    Police

             Prevention

        10   Research, training, and interagencies

             Funding and resources




                                               2
                                     Executive Summary
The management of complaints of sexual assault in the NSW criminal justice system is in urgent
need of reform. The reforms must: increase reporting rates, decrease systemic re traumatisation of
complaints and increase convictions.


One Stop Units
A sexual assault complainant is required to access counselling, health and legal services. The
impact of trauma considerably decreases a person’s capacity to complain. The drop out rate is high.
One stop units offer all services from one location. The unit becomes familiar with and supportive
of the complainant thereby decreasing the mental health impact of sexual assault and increasing her
capacity to make a formal complaint. The Unit case manager facilitates access to services,
complainant and interagency communication and assists in Court preparedness.


Specialist Sex Offences Courts and Case Management
Delay, the legal process, lack of care for the complainant and cross examination in court are
common reasons given by women for not making a complaint or for withdrawal. Case management
will improve the movement of matters to Court and decrease delay once in Court. Specialist Sex
Offences Courts will ensure: training for all Court staff, facilities and resources to support the
complainant to give evidence, legal representation for the complainant and consistency of
prosecution staff. Most current court complexes have the capacity to incorporate specialist courts.


Law Reform
Many sexual assault laws are based on myths and antiquated expectations. They must be changed to
reflect modern community attitudes and current scientific research. The required changes include: a
definition of consent and expansion of the circumstances that vitiate consent, introduction of
objective fault, abolition of some warnings, joint trials for multiple complainants, review of non-
publication orders, abolition of complainants giving evidence at committal, admission of opinion
evidence in child sexual assault trials and the use of intermediaries in cross-examination.

Police
Police need training on how to respond to complainants with compassion, ensuring their dignity and
respecting their rights. Forensic response and reporting needs to be improved.


Prevention
The prevention of sexual assault must be a priority. This will require profound social, political and
cultural change. Leadership and commitment are essential.


Research, training, interagencies, funding and resources
Systemic co-ordination and independent review of practices, processes and outcomes to ensure best
practice. Services, especially counselling, to be resourced and expanded to meet increasing demand.

                                                 3
Introduction

Specific reform to the sexual assault trial is required for the following six policy reasons:
       the relatively high incidence of sexual assault in the Australian community, including the
       sexual abuse of children;
       the much higher incidence of sexual abuse in Aboriginal communities;
       the difficulties associated with detection and the high rate of underreporting;
       the high attrition rate of cases once they are reported;
       the relatively low conviction rate for the small proportion of cases that go to trial;
       the long delays between charging and trial outcome;
       the re-traumatisation suffered by victims as a result of delays and the trial process; and
       the documented recidivism of offenders.


In 2005, there were just under 9,500 complaints of sexual and indecent assault made to NSW
Police. If the Australian Bureau of Statistics estimation that only about 20% of sexual assaults are
reported, this means that in 2005 there were approximately 45,000 incidences of indecent and
sexual assault in NSW. Annual conviction rates are around 600 persons with a majority of those
convicted not receiving custodial sentences.


To decrease the rate of sexual assault in our community many actions are required. Prevention
programs which encourage people to be ethical in their sexual activities are a priority. Such
programs will be effective in preventing sexual assault in the long term. Until this is achieved
reform to the way complaints of sexual assault are currently managed in the criminal justice system
to decrease delay and increase convictions is essential.


There has been considerable change in the way Police respond to complaints and manage
investigations. Many laws have been reviewed to better reflect community attitudes. Support
services for victims are constantly reviewing the way in which they work with reference to the latest
research in Australia and overseas. Unfortunately much of this work is ad hoc, uncoordinated and
reactive rather than proactive.


NSW Rape Crisis Centre holds the position that a best practice model for responding to complaints
of sexual assault must be achieved.




                                                   4
One Stop Unit
Currently, sexual assault complainants may need to negotiate a number of appointments at up to
five locations in the first months after making a complaint. During this time complainants are often
dealing with the impacts of trauma which can considerably decrease their capacity to complain. The
withdrawal rate is high. One stop units based at local major hospitals or community health centres
(where sexual assault services are currently based) will offer a single location at which all services
can be accessed. Complainants will become familiar with the environment and unit staff leading to
a decrease in isolation and a degree of empowerment, both essential in decreasing the mental health
impact of sexual assault. It must be noted that it is not the intention that services such as Police
would be permanently located in the units. Police will come to the unit to take statements and
communicate with the complainant.


The Units will offer:
   •   medical facilities including minor injury management and forensic collection and reporting
   •   forensic facilities
   •   police interview rooms, facilities and equipment
   •   counselling rooms
   •   a waiting area for family and supporters
   •   shower and change facilities
   •   lounge area where up-to-date accurate resources – online, visual and audio – are available.
       This space would be accessible to the complainant and supporters during normal hours.
   •   a case manager who will:
       -   provide information to the complainant
       -   arrange contact with service providers
       -   ensure investigations and other procedures are completed within protocols and time
           frames and
       -   keep the complainant informed of progress in their matter.


This is an early intervention model which will decrease vulnerability and improve mental health
outcomes for victims of sexual assault. It will also increase complainant participation in the
criminal justice process and assist in the improvement of conviction rates.




                                                    5
Specialist Sex Offences Courts and Case Management
Delays of two or more years in hearing sexual assault matters and cancelled trial dates, are two of
the major reasons given for not reporting, or for withdrawing complaints. Concerns about the legal
process, lack of care for the complainant and cross examination in court also impact on a person’s
decision to make a complaint.


Proactive case management will create an accountable system which tracks to a timeframe:
    •   information flow
    •   equipment and court availability
    •   pre-trial hearings to determine evidentiary and other issues prior to the trial date, and
    •   availability of staff, specifically trained in sexual assault matters, at all stages of the process.
Case management will decrease timeframes between each stage of the criminal justice process and
combat delays when information or process is not complete.


A Sex Offences Court for prosecuting all sex offences will meet the public policy reasons set out
above. A Sex Offences Court would have the following features:
•   specialist listing arrangements and screening process to identify cases that fall within the sex
    offences category;
•   case management to reduce delays and arrange pre-trial matters;
•   designated courtrooms equipped with state-of-the-art CCTV facilities;
•   mandatory pre-recording of a child complainant’s evidence-in-chief, cross-examination and re-
    examination;
•   mandatory use of CCTV for adult complainants and where pre-recording for children is not
    possible;
•   separate access to CCTV rooms to prevent victim intimidation by the defendant;
•   a core group of specialist judges who have sufficient experience in conducting criminal matters
    (particularly sexual assault trials) and are trained in child development issues, the special
    problems confronted by Aboriginal complainants and complainants with cognitive disabilities;
•   rotation of specialist judges through the Sex Offences Court to minimise vicarious trauma
    (psychological injury or burn-out);
•   establishment of a specialist prosecutorial unit within the ODPP with prosecutors undergoing
    the same training as judges;
•   appointment of one prosecutor to each case so that continuity is maintained from committal
    proceedings through to sentencing;
•   legal representation for complainants;
                                                     6
•   on-going training programs for prosecutors/judges including counselling support services to
    prevent vicarious trauma and high staff turnover;
•   exemption of adult complainants from giving evidence at committal hearings (as is already the
    case in NSW for child complainants);
•   use of intermediaries to translate defence counsel questions into age/culturally appropriate
    language and to prevent humiliating and oppressive cross-examination;
•   specialist witness service (independent of the DPP) to prepare complainants and provide pre-
    and post-trial counselling (using the WA child witness service as a model);
•   a data collection method for evaluating the court’s effectiveness;
•   relevant reforms to rules of evidence and judicial directions to juries:.


Some of these features are already in existence in NSW but the model’s strength is that it amounts
to a package of reforms rather than piecemeal changes to the system. As a package, it is expected
that a Sex Offences Court will improve trial outcomes, and decrease trauma and delay for
complainants. Such courts will require training for specialist prosecutors and judges. This will lead
to more informed interpretation and implementation of evidence law. It will also create a body of
knowledge within the court about the non-legal issues in relation to sexual assault such as impacts,
myths and perpetrator grooming tactics.


Specialist courts are not about bricks and mortar and in fact most current court complexes have
courts which, with minimal infrastructure improvement, could easily become Sex Offences Courts
with remote witness rooms attached.


To ensure quality, accountability and ongoing review, case management and specialist courts must
be independently reviewed for quality with the outcomes being publicly reported on.


Specialist courts could be initiated by way of a pilot program so that after the court has heard
around 100 cases, an evaluation is carried out to determine the court’s impact on outcomes and
complainants’ experiences.




                                                    7
Law Reform
Many laws in relation to sexual assault are based on myths and expectations about women’s
behaviour that are centuries old. Society’s understanding of the crime of sexual assault, and of
women’s rights, has changed considerably in the last thirty years. Many of our current laws
continue to reflect sexual assault myths and are misogynist in their implementation. It is not
unreasonable to expect that the laws of evidence and warnings, as they are applied in sexual assault
trials, reflect modern community attitudes and up to date scientific research.


We consider that the following reforms are necessary to improve the conduct of the sexual assault
trial:
    •    NSW currently does not have a legislative definition of consent. However, the introduction
         of such a definition is a public statement of what sexual behaviour is and isn’t acceptable. It
         will make it clear to jurors exactly where the consent/no consent line is to be drawn. The
         definition must include the words that “a person consents if she or he freely and voluntarily
         agrees to the sexual act and has the capacity to make that choice”,
    •    expanding the circumstances when consent is vitiated,
    •    introduction of an objective fault element for offences of sexual intercourse without consent.
    •    abolition of some of the warnings given in sexual assault trials,
    •    where there are multiple complainants, mandatory joint trials and admission of evidence
         concerning the defendant’s alleged serial offending (as is the case in the USA),
    •    review and expansion of non-publication orders to include judicial discretion and
         complainant input,
    •    abolition of the requirement that adult sexual assault complainants give evidence at
         committal proceedings,
    •    the admission of opinion evidence about child development and the effects of sexual abuse
         on children,
    •    the use of intermediaries to put cross-examination questions to complainants to prevent the
         harassment and humiliation of complainants by defence counsel, and
    •    legal representation for the complainant to ensure their rights are protected and their
         interests are best represented.




                                                    8
Police
New Officer Training and Police procedures need to be expanded beyond the purely legal to include
information about the causes, consequences and impacts of sexual assault and how to:
     respond to a complainant with compassion, and ensure their dignity and rights are respected,
     investigate the allegation while minimising additional traumatisation, and
     take a statement from a person who has a cognitive impairment or mental illness.


The establishment of the Child Protection and Sex Crimes Squad has had a considerable impact on
the investigation of complaints of sexual assault. Expansion of the Squad will allow for Squad
members to provide mentoring and back up to all detectives in NSW who are investigating a sexual
assault complaint.


Increased resources for forensic investigations (located in the Department of Health) will decrease
investigation times and delay.


Prevention
The establishment of a best practice model for the management of complaints of sexual assault and
support services for victims will improve reporting rates, decrease the impact of the justice system
on complainants and increase convictions. While such outcomes are very desirable prevention of
sexual assault is the priority.


This will require profound social, political and cultural change.


Programs to date have broadly relied on either telling women to protect themselves and restrict their
movements to avoid being sexual assaulted, or grouping all men together as potential attackers.
Both of these approaches are flawed and have clearly not worked. To achieve change, we need:
 •       leadership with long term commitment to change,
 •       research,
 •       considerable community debate, and
 •       structural and cultural change in all sectors of society.


Community debate on ethical sexual practices must be encouraged, resourced and supported. Myths
and attitudes about women and sexual assault must be identified and challenged.




                                                     9
Research, training, and interagencies
Research is recommended to further identify and analyse why matters are not reported and when
reported why they do not proceed. Research is also required to determine what factors influence
outcomes (conviction/acquittal) in sexual assault trials.


Resources and support services need to target communities least likely to report.


Geographically based interagencies of sexual assault service providers should be established
throughout NSW. The Interagencies would:
•       have a local co-ordination role,
•       enhance the ability of local services to respond to sexual assault, and
•       identify and act on quality improvement.
Such interagencies must have a public reporting and accountability mechanism.


Funding and resources
Many ‘gaps’ in services for victims and survivors of sexual assault exist not because such services
are unavailable but more often because services are so under resourced that they are unable to meet
demand. Additional and targeted funding must be made available to increase resources in the
following priority areas:
    •   additional counselling services and establishment of case manager positions at one stop units
    •   expansion of the nurses examiner program and increase tied funding for forensic testing
    •   the ODPP, in particular the training and        establishment of a specialist sexual assault
        prosecutorial unit
    •   court and one stop unit infrastructure, and
    •   funding to support initiatives targeting Indigenous communities.




                                                   10

								
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