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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-06 Daily Xml
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CRIMINAL LAW CONSOLIDATION (RAPE AND SEXUAL OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 March 2008. Page 2072)

The Hon. SANDRA KANCK (16:05): Over time, I have found that, if I am in a random group of 10 women, during the time of association (over weeks, months, or whatever) in casual conversation I will find that, most likely, seven out of the 10 will, at some time in their lives, have been sexually abused as children, or sexually assaulted or raped as adults. It is, disturbingly, very common.

What is also common is a very low incidence of reporting. Many of those who were children at the time of the abuse did not report because of the pressure they were put under by that family member—otherwise known as emotional blackmail. Many of them have never reported the incidents because they were drunk at the time and, therefore, blamed themselves, or it was a family friend and they thought they would not be believed. Perhaps it was their husband or partner and they did not want others to know that their partner was capable of such vile action. In other instances, the matter has been reported to police but pressure has been applied from the social group or sporting club (to which the offender and victim both belonged) to not pursue any charges. Some ethnic groups do not recognise rape as being possible in marriage, so those women will never report the crime that has happened to them.

Many of the women who have experienced these crimes now suffer depression and mental illness. There is a huge emotional cost, not just to them but to our health services. I know a number of women who suffer from chronic depression, schizophrenia or bipolar disorder and, at the core of the dysfunction, is child sexual abuse. There is a cost to our mental health services and, in not insignificant numbers, to our welfare system, as some of these damaged people go on to have difficulty parenting, so there can be huge social costs as well.

I mention that, in referring to women, I also acknowledge that some men and boys are also abused, assaulted or raped. However, it is women who are overwhelmingly the target. It is the feminist movement that has pursued, for decades, reform in regard to rape and sexual assault laws and procedures.

This bill has been a long time in coming. In 2002, in the ALP election promises, there is an undertaking (number 41) that states:

Labor will reform, after community consultation, the laws and trial procedures in relation to all forms of sexual assault and rape, with a view to empowering victims of such crimes; in particular, to address the under-reporting of these crimes; to examine means of minimising the traumatic impact of the legal processes upon the victim, including the possibility of separate legal representation for victims of rape; to remove any suggestion within the law of any inherent unreliability in the evidence of rape victims; to establish a presumption against the giving of corroboration warnings regarding the victim's evidence in rape cases unless specified criteria are satisfied; remove the capacity to use a defence based on self-induced intoxication.

In 2005, after an inquiry lasting close to two years, the Legislative Review Committee of the parliament tabled a report, the subject of which was ascertaining reasons for the low conviction rates of sexual assaults in South Australia, and it made recommendations about how these figures might be improved. It was an excellent report and, with its findings and recommendations, one might have expected that the government had all the information it needed to get on with the job of reform. It was there. So, it was somewhat disappointing, from a time perspective, to find the state government announcing that it was going to conduct a review, which duly occurred in 2006.

This bill is the consequence of that review, although this is the second attempt, with an earlier bill introduced a year ago, which was allowed to lapse. I know that the Stop Rape Now coalition contacted the Attorney-General with recommendations for further amendments and, I assume, the delay was to allow improvements to be made to the bill. I commend the Attorney-General for taking into account those who have had gender reconstruction surgery, as I have a couple of friends in this position. If transgendered women are raped, the crime will be equally damaging to them as to those of us born female.

I return to the Legislative Review Committee report, because so much of what was in that report demonstrates the need for the legislation before us. It shows that in South Australia between 1993 and 2002 conviction rates for rape and attempted rape ranged between 1.6 and 3.1 per cent and for sexual assault between 6 and 24 per cent. The figures for rape and attempted rape are astonishingly low when compared with the number of reports to police. I found these figures to be deeply disturbing. I seek leave to have a table incorporated in Hansard.

Leave granted.

Rape and Attempted Rape
Year Total Reported Total cleared by police Total withdrawn, dismissed, charges dropped Convicted of other offence Total guilty pleas Total guilty as charged
1993 741 279 122 4 11 23
1994 697 310 125 22 11 21
1995 630 289 117 14 1 18
1996 614 256 92 9 6 19
1997 580 231 99 14 5 14
1998 610 409 98 9 6 10
1999 603 357 92 9 8 13
2000 632 396 75 3 7 12
2001 691 410 87 7 7 11
2002 628 353 79 8 4 11


The Hon. SANDRA KANCK: The table shows the number of reports made in each of those years and also shows the attrition rate as police have decided not to proceed or to withdraw cases and victims themselves deciding to withdraw. It leaves a final column showing how many rapists were found guilty as charged.

If we go down the right-hand column, 'Total guilty as charged', the conviction rates were as follows: 1993, 3.1 per cent; 1994, 3.01 per cent; 1995, 2.85 per cent; 1996, 3.09 per cent; 1997, 2.41 per cent; 1998, 1.64 per cent; 1999, 2.15 per cent; 2000, 1.89 per cent; 2001, 1.59 per cent; and 2002, 1.75 per cent. It does not take an Einstein to see that the rates of conviction are dropping, which is very concerning. Those figures also show in the column 'Total reported' is that there was a reduction in the number of people reporting rapes in the first instance, as follows: 1993, 741; 1994, 697; 1995, 630; 1996, 614; 1997, 580; 1998, 610; 1999, 603; 2000, 632; 2001, 691; and, 2002, 628. This is all happening at a time when the population is growing. Clearly, there is a trend downwards in the number of people reporting rapes and sexual assaults.

Both these columns are cause for major concern. The number of victims reporting the crime is reducing and within that smaller starting number there was a reduction in the number of successful prosecutions, both in raw number and in percentage terms. These extremely bad figures have to be seen in their context, and that context makes what are bad figures almost impossible to comprehend.

The committee reported that, of women who have been sexually assaulted, the reporting rate was somewhere between a worst case scenario of only 8.7 per cent and, at best, 33 per cent. Put another way, somewhere between seven and nine out of 10 rape and sexual assault victims do not report the crime. If we take the 2002 figures, where 628 cases were reported to the police, it represents the tip of an iceberg with the real numbers of those crimes being somewhere between 2,000 and 7,000 people.

To consider then that only 11 offenders were found guilty as charged, with four of the 11 pleading guilty (which means that only seven of the cases were actually won), we have an appalling reflection on how we in this state deal with the issue of rape and sexual abuse, and it clearly shows why legislation such as this is needed.

I raise the question of why so many women fail to report the crime. Apart from the number of victims who blame themselves and therefore take no action, the word gets out among women that it is not worth the effort. The Legislative Review Committee's report quotes the Victim Support Service submission about why one person chose not to report the crime to police. She said:

Why would I bother reporting when I get treated like crap and called a slut and a liar? The jury doesn't believe me because most of the real evidence is inadmissible and there is virtually no chance of conviction. I felt so violated and humiliated I didn't want to tell people because maybe they won't believe me, will blame me or will just not know what to say. How could I possibly make people understand when I couldn't understand myself?

When only 3 per cent at best of those cases that get reported to police result in a conviction, why would you bother? Why would you put yourself through what victims are put through? With my knowledge of the system, I think retribution might be a better option. There are quite a number of things that need to be sorted out in procedures that are not dealt with either in this legislation or the accompanying bill.

I know a woman who was raped about five years ago. At that stage the group within SAPOL that dealt with this crime of rape and sexual assault was the Sexual Assault Referral Unit (SARU). This was about two days after she had been violently raped. The crime had been reported, and she went into the Angas Street police station and quietly said to the officer at the desk, 'Is there anyone here from SARU?' The police officer called out loudly, 'Hey, is there anyone here from the Sexual Assault Referral Unit?' So, of course, everyone sitting there—and, having been there with her, there were probably about 20 or so people waiting for attention—all those people knew that this woman had been sexually assaulted. She was utterly mortified. So, it is things like that and that sort of sensitivity that needs to be developed.

Chapter 5 of the report talks about mock examinations. From what I have heard from women reporting back, this is something that seems to be done as a matter of course. It is where the prosecution puts the victims through a mock trial but without telling them that it is a mock trial. They suddenly turn on them and start asking questions as if they were the defence lawyer, without any forewarning that that is going to occur, and it often results in victims deciding that they will not go ahead with the case.

I would like to give the example of a woman I worked with some years back, whom I will call 'Amy'. She had been sexually assaulted (it was attempted rape) and, like many women, after the event she went home and had, I think she told me, 14 showers that night in order to try to remove any sense of anything about that man. Two days later I convinced her to talk to the police. In this particular case it was an attempt at oral rape and the man had ejaculated in her hair and on the side of her face, but fortunately the police were able to find an earring that she wore and were able to get a semen sample and a DNA match, once she had described who the man was (she had, by the way, met him on a dance floor).

Initially when the police went to the man he denied that anything had happened, but when they had the DNA match he admitted that something had happened—the woman had bruises from the encounter, by the way, to corroborate what happened. His response was that there had been an interaction but she was a woman who liked violent sex. 'Amy' was called to come in, and they went through this process of suddenly turning on her and saying, 'You are just a woman who likes violent sex, you brought it on yourself', and so on. She did not know this was going to happen, she was not forewarned that this was effectively what was going to happen in the trial, and she came back to the office and said, 'Guess what's happened? I've decided that I can't possibly go through it.'

As soon as she told me that (she had gone off and had not told me that she had this meeting) I thought, 'Oh no; if only she had told me I could have perhaps forewarned her that this was going to happen.' However, it was too late; she had withdrawn the charges. She said that all she could hope was that, because there was a positive DNA identification, and because this man was married and had two kids, having got this far it would break up his marriage. That was the best that she could hope for in terms of getting any justice.

So, women know about these things and they are very wary about reporting the crime. There is another downside to this when they do not report, and that is that they are very unlikely to be able to access counselling which might otherwise be available to them. Many women in this situation become permanent victims; others are softened up to become sex workers as a consequence of having lost respect for, and control of, their own bodies.

The manner in which SAPOL and the DPP treat victims is not part of this bill, and it probably cannot be, yet unless we get improvements in what happens in the lead up to charges being laid, and in the court cases themselves, the changes in this bill may not result in substantial improvements to conviction rates. I think there are also other reforms in the area of rape and sexual assault that we, as a state, should be considering, such as the use of an inquisitorial approach to rape cases rather than the win-lose adversarial approach we use in South Australia.

I also believe there is good reason for us to look at including information about previous sexual offences of the accused. The risk of that is that a jury may be substantially convinced to find someone guilty if their previous record is known, but I am speaking only in regard to sexual offences, because the impact of such offences is so great. Perhaps as a first step we could start with those who have previous convictions in regard to children.

I do note with approval the provision in the bill for sexual offence cases against the one person involving a number of victims to be tried together. The minister's explanation does warn that 'the presumption may be rebutted', and I am sure defence lawyers will argue this way on behalf of their clients, but it is a step forward that we have this in the bill. Despite the six years it has taken for the ALP to make good on its election promise of early 2002, we at last have legislation being debated, and the women's groups who have put so much work into lobbying over so many years are happy with the bill. It may not go as far as I would like, but I too am pleased to support the bill.

Debate adjourned on motion of Hon. M. Parnell.

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