Effective Justice for Victims of Sexual Assault: Taking up the Debate on Alternative Pathways
![handle is hein.journals/swales33 and id is 670 raw text is: UNSW Law Journal
EFFECTIVE JUSTICE FOR VICTIMS OF SEXUAL ASSAULT:
TAKING UP THE DEBATE ON ALTERNATIVE PATHWAYS
BRONWYN NAYLOR*
I INTRODUCTION
Over the past three decades there have been widespread reforms across the
common law world to laws governing the prosecution and trial of sexual assault
allegations in response to arguments of feminist and conservative commentators
that the adversarial trial process was not producing convictions commensurate
with the number of offences committed.
The evidence, however, is that these significant social, political, and legal
reforms have resulted in little practical improvement in the operation of the
criminal justice system.
Reporting rates for sexual assault remain low and attrition rates for sexual
assault prosecutions remain unacceptably high. The legal and evidentiary
requirements for a successful sexual assault prosecution make it a difficult
offence to prove in the absence of admissions despite Lord Hale's famous
assertion that rape is a charge 'easily to be made, hard to be proved'.1
In Victoria, only 17 per cent of victims report the offence to police, a much
lower rate than, for example, reported robbery (almost 50 per cent) and assault
(almost 30 per cent).2 Similar statistics are reported in Canada and the United
Kingdom ('UK'). In Canada, '[1]ess than one in ten incidents of sexual assault
were reported to the police, a proportion significantly lower than that for the
other violent offences, robbery (47 per cent) and physical assault (40 per cent)'.3
* Senior Lecturer, Monash University. For helpful and constructive comments on earlier drafts I would like
to thank Heli Askola, Liz Bishop, Arie Freiberg, Loraine Gelsthorpe and Michael King, together with two
anonymous reviewers and attendees at several conferences at which I have presented these arguments.
1 Sir Matthew Hale, Historical Placitorum Conronae (London Professional Books, first published 1736,
1971 ed) vol 1, 635.
2 Victorian Law Reform Commission ('VLRC'), Sexual Offences: Law andProcedure, Discussion Paper
No 2 (2001) 21; VLRC, Sexual Offences: Final Report, Report No 5 (2004) 80. See also Australian
Bureau of Statistics ('ABS'), 'Personal Safety Survey Australia 2005 (Reissue)' (Report No 4906, 2006)
21.
3 Shannon Brennan and Andrea Taylor-Butts, Sexual Assault in Canada 2004 and 2007 (Statistics Canada,
2008) 8.
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Effective Justice for Victims of Sexual Assault: Taking up the Debate on Alternative Pathways
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