“Conventional and Innovative Justice Responses to Sexual Violence” by Professor Kathleen Daly, from the School of Criminology and Criminal Justice, reveals that despite 30 years of sexual violence law reform, conviction rates in Australia, Canada, England and Wales continue to fall.
The overall conviction rate for sexual offences reported to the police for five common law jurisdictions, including Australia was 18 per cent in an earlier period (1970-1989), but had declined to 12.5 per cent in recent years (1990-2005).
Professor Daly said research on conviction rates and victims’ experiences in the legal process showed that justice system responses remained inadequate.
“Victims continue to express dissatisfaction with how the police and courts handle their cases and with their experiences of the trial process.”
Professor Daly said one explanation for decreasing conviction rates was as more sexual offenses were reported to police, they contained a higher share of known relations and rape contexts that do not match the “real rape” construct of stranger relations – visible physical injury, and being assaulted in a public setting.
She said legal officials, along with other members of society, could have negative stereotypes of victims unless the assault contexts conformed to this construct.
“The demonisation of some sexual offenders makes them seem so monstrous that women’s everyday victimisation experiences by partners, friends, and colleagues cannot be imagined as ‘real rape’.
“Many commentators believe the crux of the problem lies in cultural beliefs about gender and sexuality, which dilute and undermine the intentions of rape law reform.”
She said finding the balance between censuring wrongs and validating and vindicating victims required imaginative and innovative ways of thinking about justice beyond prosecution and trial, or of increasing punishment.
“We require a shift in the priorities of legal reform, away from the trial and toward mechanisms of encouraging admissions to offending, including the pursuit of alternative pathways of participation and support for victims, offenders, and others affected by sexual violence.”
She said the criminal justice system should not be considered the principle site for changing people’s behaviour and attitudes about gender and sexuality.
Rather than just one pathway for victims and survivors, the study recommends a menu of options and varied pathways such as providing opportunities for victims to directly participate in justice activities, to voice their stories and to acknowledge and validate the wrongs they have suffered.
“For the minority of cases that remain in the legal system, these activities are not a ‘second class’’ or inferior form of justice because some innovative responses do or can articulate with the formal criminal justice system.”
“They may offer options for the majority of victims who do not report sexual assault to the police or whose cases never reach court.”