The Victorian Law Reform Commission report Improving the Justice System Response to Sexual Offences states
1 This report recommends ways to improve how the justice system responds to sexual offences.
2 The system needs to change, so that:
- using it is straightforward and not traumatic for people who experience sexual violence
- the criminal justice system holds people responsible for sexual violence to account
- victim survivors have choices and support when seeking justice for sexual violence.
Why does the justice system need to change?
3 Sexual violence is widespread. It causes serious, long-term harm. But most sexual violence is not reported to the police. Many people do not report because they think that they will not be believed, or they do not want to go through a criminal trial.
4 Most reports of sexual violence do not make it to court. Cases that do go to court mostly end up with someone being convicted, either by pleading guilty or being found guilty. But only about half of the trials in higher courts (the County Court and the Supreme Court) end with someone being found guilty, a rate lower than for most other offences.
5 Too often, people who have experienced sexual violence do not get what they need or want from the justice system. They need to be supported; to be heard; to have a voice; and to see the person responsible held to account. Instead, the justice system often leaves them feeling alone, invisible, and as if they are the ones on trial.
6 Positive changes have been made by governments and people working in the justice system. But this important work is far from over, and much more needs to be done.
How should the justice system change? Change starts in the community
7 We need to build a community that understands sexual violence and supports people who experience it.
8 People still do not talk openly about sexual violence. They do not always know it is a crime, or how to reach out for support or to find justice. When a person discloses sexual violence, they do not always get a supportive response. These things are barriers to justice.
9 The Victorian Government should invest in ongoing public education about sexual violence.
10 Stopping sexual violence should become ‘everyone’s business.’ Organisations like clubs and schools, and employers, should have stronger obligations to do what they can to eliminate sexual violence and harassment.
The system needs to change
11 The ‘system’ for responding to sexual violence is under strain. Victim support services, police, and lawyers are overworked and under-resourced. The courts have serious backlogs.
12 The first and most urgent thing the Victorian Government should do is invest in the system.
13 Everyone in the system needs to work together with a shared idea of what they are trying to achieve. This would help to create a system that is straightforward to use and effective.
14 The Victorian Government should create a governance structure that supports everyone to work together effectively.
15 A multi-agency protocol should set out how everyone in the system works together. The protocol should be clear about who is responsible for what, and how to give feedback to improve the system. It should set out how to connect victim survivors to support services.
16 People who work in the system should be accountable, and report to parliament on their compliance with the protocol. Victims of sexual offences should have specific rights in the Victims’ Charter Act 2006 (Vic) and the Victims of Crime Commissioner should make sure these rights are respected.
17 Good models of working together should be expanded. Multi-disciplinary centres are an example, bringing together sexual assault services, police, and Child Protection.
18 The Victorian Government should strengthen joint responses to child sexual abuse, including a strong partnership between Victoria Police and Child Protection.
Research and data are a priority
19 We need to understand the contexts and patterns of sexual violence, why people commit sexual violence, and how to change their behaviour. We need to evaluate what works, to help design better responses to sexual violence. Gaining this knowledge and sharing it should be a goal of the Sexual Assault Strategy the Victorian Government is developing.
20 To improve the criminal justice system, we need better data on what is working and what needs fixing. To achieve this, the way data is collected, used, and published should be improved. An annual report on key criminal justice data should be published, and the impact of reforms measured. The Victorian Government should fund the Crime Statistics Agency to publish regular studies on the progress of cases through the criminal justice system.
Reporting needs to be easier
21 Not everyone wants to report sexual violence, but everyone should know their support, reporting, and justice options. It should be as easy as possible to contact police and support services.
22 The Victorian Government should set up a user-friendly website that explains what support is available, how to report, and what happens if a person does report. It should explain all the options, including financial assistance and restorative justice.
23 This website should be a gateway to support services, with options to connect with support services online or by phone.
24 There are not enough ways to contact police. People should be able to make contact with police online, making it easier to report sexual violence.
Everyone should have access to support and reporting options
25 Everyone should have access to support and reporting options, wherever they live. People living in institutional contexts face unique barriers to reporting. Staff and carers may not know how to respond to disclosures.
26 Many inquiries have made recommendations to reduce sexual violence in institutional contexts and break down barriers to reporting. This work must continue. Regulators should support this work by implementing good practices in their different institutional contexts.
27 The needs of women in prison should also be addressed in the Sexual Assault Strategy. They are likely to have experienced sexual violence. The strategy should also prioritise the experiences and needs of children and young people in contact with the justice system who have experienced sexual violence.
28 Some people and communities do not trust the justice system or see it as a source of support. This must be addressed so that all communities have access to support, reporting and justice options.
29 The Victorian Government should support familiar and trusted community organisations to provide people with safe spaces to disclose sexual violence and access to information, support and reporting options. Many community organisations are already playing this role, but it should be strengthened, and they should collaborate with specialist sexual assault services.
30 Specialist sexual offences police (SOCITs) should build relationships with the community in their regions. They should work with community organisations and services to develop new pathways to reporting.
31 An Aboriginal sexual assault service is needed. It would provide a culturally safe and appropriate service for Aboriginal people who have experienced sexual violence. The current pilot programs can be developed into a permanent service model that responds to the different needs of Aboriginal women, children and men.
32 The Victorian Government should strengthen the support available to children and young people who use harmful sexual behaviour. Early intervention programs and support services are needed.
Justice options should be expanded and strengthened
33 People have different justice needs. They include needs for emotional and practical support. To respond to these needs, the range of justice options should be expanded and strengthened.
34 The time has come for restorative justice in Victoria.
35 Restorative justice enables people affected by a crime, including the person responsible (where appropriate), to communicate about the damage and work together to repair it. Restorative justice should be an additional justice option for victim survivors alongside the criminal justice system.
36 The Victorian Government should set up a restorative justice scheme for criminal offences, with guiding principles for sexual violence so that the restorative justice process is done safely and well.
37 Civil litigation can provide victim survivors with compensation, acknowledgement and a sense of control. But it can be hard to get legal representation to sue an individual for sexual violence.
38 In cases with individual defendants, the Victorian Government should fund civil cases that raise important legal or systemic issues, or where the person who experienced sexual violence faces unique barriers to justice. The Victorian Government should also, on request, enforce civil orders and settlements.
39 Financial assistance and ‘truth telling’ can meet justice needs for victim survivors. They can acknowledge the harm done and validate their experience.
40 We recommend strengthening financial assistance and truth telling as justice options. The time limit for making applications should be removed. There should be a specialist stream run by respected decision makers with sexual violence expertise. Decision makers should ensure ‘recovery payments’ are enough to recognise the negative impacts of sexual violence.
41 Too often, people who have experienced sexual violence are left alone to navigate a complex and frightening system. Victim survivors told us they need strong, continuous support.
42 Victoria has the foundation of a strong support system, but accessing specialist services is still too hard. More investment is needed to strengthen the services we have.
43 There are gaps in meeting immediate needs—basic things like getting a taxi to hospital after experiencing sexual violence. The Victorian Government should make flexible support packages available to people who have experienced sexual violence.
44 Victim advocates should be funded to ‘walk with’ people who have experienced sexual violence. They should provide holistic support, ranging from helping victim survivors navigate services to supporting them through the justice system. The support should cover the whole experience of the criminal justice system—before, during and beyond.
45 People who have experienced sexual violence need legal advice and representation. The new Victims’ Legal Service should provide this, up to the point of trial if needed.
Stop the violence before it starts
46 Previous reforms have focused on victim survivors and the criminal justice system. There is an increasing focus on perpetrator interventions in cases of family and sexual violence. An ideal response would stop sexual violence before it happens, or prevent it continuing.
47 As part of the Sexual Assault Strategy, the Victorian Government should develop a coordinated approach to preventing sexual offending. The focus should be on early intervention programs. Strong reintegration programs should support people who have committed sexual offences to return to the community.
48 The Victorian Government should adopt recommendations from our Sex Offenders Registration report.
Victoria should move to a strong ‘affirmative consent’ model
49 Lack of consent is a key element of rape and other sexual offences. The definition of consent should be reviewed, along with the question of whether a person’s belief in consent is reasonable. There should be a higher bar set for finding out if the other person is consenting to sex. Victoria should move to a strong model of affirmative consent.
50 It is a crime to remove a device such as a condom without consent, and this needs to be made clear in the definition of consent. This would help people identify it as criminal and report it.
51 Image-based sexual abuse is a growing problem that causes serious harm. Victoria’s laws need to recognise its seriousness. Image-based sexual offences should be indictable crimes triable summarily.
52 Safeguards should be built into the system so that children and young people are not overcriminalised.
53 The investigation of image-based sexual abuse offences should be handled by police who specialise in sexual offences (SOCITs). Complainants in these cases should have the same protections as complainants for other sexual offences.
54 The sexual offence laws reformed in 2015 need to explain how those offences apply in cases before the reformed offences commenced (‘transitional provisions’). The current situation causes major practical problems in prosecuting sexual offences, such as charges not being filed.
55 Past recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse should be implemented. This would make it easier to prosecute repeated and systematic child sexual abuse.
The criminal justice system should support everyone
56 When a victim survivor reports a crime and appears in court, they should be heard and understood. People accused of sexual offences should be able to understand the charges and evidence against them, and how the criminal justice system works.
57 Intermediaries provide valuable support to children and people with communication difficulties. More people should be able to access them. Intermediaries should be available to anyone with communication difficulties, including the accused. They should be available in all venues of the County Court of Victoria.
58 Independent third persons provide valuable support in police interviews to people with cognitive disabilities. This service should have enough funding, connect people to other services, and be promoted.
59 Language services are especially important in the context of sexual violence. Sexual violence affects people who need language services more than others. Funding for language services should be increased. Investing in specialised training is a priority.
Focus on the ‘front end’ of the criminal justice system
60 Forensic medical examinations can improve evidence in criminal prosecutions. There is an urgent need to invest in access to forensic medical examinations, especially in rural and regional areas, and for children and young people.
61 To give victim survivors more choices and control, they should be able to specify the gender of their forensic medical examiner. There should be more access to ‘just in case’ forensic medical examinations, which do not require reporting to police.
62 Before reporting sexual violence, victim survivors need to feel confident that police will respond appropriately to their diverse needs and experiences. This requires immediate attention, including training. Victoria Police should continue to gain ‘communication access’ accreditation.
63 The responses of police and prosecutors to sexual violence have improved, but more can be done. Good practice should be embedded in the multi-agency protocol we recommend. There should be new rights in the Victims’ Charter Act, including the right to specify the gender of the police interviewer and to have flexible interview arrangements.
64 There should be a focus on improving the quality of police interviews with children and young people.
65 There is a need to understand why sexual violence cases do not progress. There should be independence and accountability in decision making by police and the prosecution. The Victorian Government should establish an independent, multi-disciplinary panel to review and make recommendations about police and prosecution decisions.
People working in the criminal justice system should have specialist skills
66 Sexual offences is a complex area to work in. To handle these matters well, people working in the criminal justice system need to understand sexual violence. They also need to understand complex laws and procedures.
67 Past reforms have helped develop the specialist knowledge and skills needed to respond to sexual violence. But good practice still does not happen across the board.
68 We need to create a specialised criminal justice workforce.
69 This specialised approach should build on the elements that have improved responses in specialist sexual offence courts.
70 Lawyers appearing in sexual offence cases should be encouraged to have specialist accreditation. Fees should be increased so that this complex work attracts skilled lawyers who have accreditation. Judges and magistrates should complete well- rounded and ongoing education and training courses.
71 In making judicial appointments, the Victorian Attorney-General should consider the potential appointees’ aptitude for hearing sexual offence cases.
Criminal trials should be improved
72 Key features of our criminal justice system make it hard for sexual offences to be proved in court, and hard for complainants to go through the process.
73 There have been decades of reform to address these issues, including the issue of delay. Other key reforms, such as to tendency and coincidence evidence, are still in progress.
74 The Victorian Government should implement recommendations from our Committals report to reduce delay and trauma to victim survivors.
75 Tendency and coincidence evidence can play a central role in sexual offence trials, especially those involving child sexual abuse. Reforms to tendency and coincidence evidence should be evaluated.
76 We acknowledge concerns about appeals. They may have negative impacts, such as drawing out the process for those involved. We recommend a review of appeals.
77 Juries in sexual offence trials may have misconceptions about sexual violence. This may affect how they assess the evidence. Sexual offence trials are complex, making a juror’s job of assessing the evidence in line with the law a difficult one.
78 We recommend more jury directions, greater use of independent experts and more effective communication with the jury. This should include guidance in every sexual offence trial on the meaning of ‘beyond reasonable doubt’, given how crucial the question is to verdicts in these trials.
79 The Victorian Government should invest in ongoing research on juries in sexual offence trials.
80 Although there has been a shift towards a respectful courtroom culture, trials are often still traumatic for complainants. There should be a focus on creating a respectful environment and getting the most relevant and clear evidence from complainants.
81 To shift courtroom culture, the parameters of cross-examination and respectful treatment of the complainant should be considered carefully. This should be part of the planning for every sexual offence committal or trial.
82 Arrangements for taking evidence should be flexible and include pre-recorded evidence. There should be changes to court design and arrangements to make sure complainants feel safe and able to present their best evidence.
83 Complainants’ rights to privacy need to be protected. They need to know if the defence wants to introduce evidence about their confidential communications with a medical practitioner or counsellor, or their sexual history. They need to be given legal advice and representation to protect those rights and have a say in decisions.
Future reforms need a systems-wide approach to implementation
84 The recommendations in this report need to be implemented effectively. We recommend monitoring and an annual report on implementation progress.
85 A new Commission for Sexual Safety should be established. Its functions should span prevention, education, and the way services and the justice system respond to sexual violence. It should bring a ‘systems-wide’ view to implementing the recommendations in this report. It would lead the changes we want to see in responding to sexual violence.
The Commission's Recommendations are
1 The Victorian Government should resource and support ongoing public education about sexual violence, including on: a. identifying its many different forms b. common misconceptions about sexual violence c. sexual offences, with a focus on the law of consent d. the available support options e. the available justice options and what to expect from these. The content of public education should: a. be informed by research and evidence on how best to generate lasting social change b. be accessible and up to date c. be tailored to reach all groups in the community d. equip family and friends and health and other service providers to respond constructively to disclosures e. include a focus on children and young people.
2 The Victorian Government should review the content and implementation of Victoria’s Respectful Relationships Education and sexuality education with a view to: a. improving its uptake by all schools, including independent and Catholic as well as government schools b. increasing the focus on sexual violence c. tailoring education to address diverse needs and experiences.
3 The Victorian Government should amend the Equal Opportunity Act 2010 (Vic) to give the Victorian Equal Opportunity and Human Rights Commission the power to enforce the duty in section 15 of that Act to take reasonable and proportionate measures to eliminate sexual harassment as far as possible.
4 The Victorian Government should create an enforceable duty to take reasonable and proportionate measures to eliminate sexual violence as far as possible. The duty should apply to existing duty holders under section 15 of the Equal Opportunity Act 2010 (Vic).
5 The Victorian Government should: a. address as a priority the need for resourcing of key partners responding to sexual violence, including specialist sexual assault services, the police, and prosecution b. review the role of health and human services in Victoria’s response to sexual violence, including the capacity of specialist sexual assault services and forensic services to play their role as key partners in the system.
6 The Victorian Government should, as part of the Sexual Assault Strategy, consult on and develop a clear governance structure for coordinating responses to sexual violence to: a. ensure a shared vision of responding as a system to sexual violence b. identify and respond to systemic issues and opportunities for improvement c. foster collaboration between stakeholders, including by resolving differences d. ensure transparency and accountability for a system-wide response to sexual violence, including through the proposed strengthening of the role of the Victims of Crime Commissioner.
7 The governance structure for coordinating responses to sexual violence should include: a. ministerial responsibility for sexual violence b. a high-level statewide body representing government departments and key stakeholders c. regional governance arrangements linked to the high-level structure d. genuine and ongoing representation of views from victim survivors and diverse communities e. a working group of regulators with responsibility for addressing sexual violence that will work together on ways to improve sexual safety in their areas.
8 The recommended high-level statewide body should develop a statewide multi- agency protocol for responding to sexual violence. This should include: a. a statement of the role and responsibilities of each partner b. a commitment to working collaboratively based on overarching principles c. processes that identify responsibilities during key interactions and how people should interact with each other d. timeframes for key interactions e. processes that clarify who is responsible for communicating with the person who has experienced sexual violence f. guidance on flexible arrangements for reporting sexual violence and taking statements g. processes that clarify when, how and to whom referrals are to be made h. how and when people should be supported to apply for intervention orders i. processes for ensuring feedback between partners and for continual improvement, including the need to identify and address causes of delay j. processes for resolving disputes between partners and ensuring regular review of the protocol and compliance with the protocol.
9 The Victims’ Charter Act 2006 (Vic) should be amended to provide that victims of sexual offences have: a. the right to be referred to specialist support services within a set timeframe b. the right to specify the gender of the person interviewing them c. the right to specify the gender of a forensic medical examiner d. the right to request flexible arrangements for police interviews e. the right to request an independent review of decisions by police or the prosecution to discontinue or not file charges or indictments after an internal review f. the right to interpretation and translation g. the right to special protections, including the recommended right to pre- recorded evidence h. the right to be notified of applications to introduce confidential communications or evidence of sexual history and, as recommended, the right to be heard on those applications and to funded legal advice and representation for those applications i. the right to be informed about the recommended restorative justice scheme for sexual offences and, if they choose to and it appears appropriate, to be referred to this scheme.
10 The Victims of Crime Commissioner Act 2015 (Vic) should be amended to: a. confer on the Victims of Crime Commissioner powers to monitor progress under, and compliance with, the statewide multi-agency protocol b. require annual public reports on progress under, and compliance with, the statewide multi-agency protocol, to parliament.
11 The Victorian Government should commit to and fund the expansion of Multi- Disciplinary Centres.
12 The Victorian Government should set up an independent review of collaboration between those working to respond to sexual violence. The review should: a. identify what could be done to improve collaboration b. inform an implementation plan that improves collaboration, including how to implement Recommendation 11 and to identify other promising models of collaborative practice that should be implemented.
13 The Victorian Government should, building on the Protocol between Child Protection and Victoria Police, develop a revised protocol for child sexual abuse to improve the interactions between the justice system and the child protection system. The revised protocol should move towards: a. a partnership model across the state that includes as key partners those responsible for providing therapeutic services for children b. clear and strong processes for joint case planning, joint training and collaborative practice c. a strong component of advocacy for children d. improved governance and accountability e. an approach informed by evidence, including regular data analysis, evaluation and review.
14 The Victorian Government should, as part of its Sexual Assault Strategy: a. identify key gaps in data, research and evaluation on the experiences of and responses to sexual violence and develop measures to address these gaps b. identify the data that should be shared and mechanisms for sharing the data among key partners c. identify opportunities to build on existing data on sexual violence d. fund the modernisation of data systems for key agencies e. develop measures and indicators to support shared goals and outcomes f. identify ways to include measures of progress that reflect the experiences of people who have experienced sexual violence g. commit to a consistent practice of requiring, resourcing, planning for and publishing regular evaluations.
15 The Victorian Government should include, in its extension of the Family Violence Data portal, data from sexual assault services, forensic medical examinations, the Office of Public Prosecutions and the higher courts.
16 The Department of Justice and Community Safety should establish a working group to: a. publish an annual report providing key data about the response of the criminal justice system to sexual offences, including the progression of cases and trends in the criminal justice system b. identify ways to record and address the reasons for delays to sexual offence cases in the criminal justice system c. identify ways to include the experiences of victim survivors in the criminal justice system as part of broader outcomes on sexual violence d. develop plans for measuring the impact of reforms at an early stage.
17 The Victorian Government should fund the Crime Statistics Agency to publish a regular qualitative review and a regular attrition study that includes police and prosecution records. This should include a follow-up qualitative review to complement its most recent attrition study.
18 The Victorian Government should set up a central website (or expand an existing website) to provide people with practical information on sexual violence and their options for support, reporting and justice. It should: a. enable people to connect with support services online or via phone, 24 hours a day b. discuss how to identify sexual violence, support options, reporting options and justice options, and possible outcomes c. be user friendly and tailored to different audiences, including victim survivors, friends and family and bystanders, and people with diverse needs and experiences.
19 The Victorian Government should resource sexual assault support services to receive and respond to disclosures of sexual violence online and through a central website.
20 Victoria Police, in collaboration with sexual assault support services, should develop an online pathway to reporting sexual offences. It should: a. be victim-centred b. require people to leave minimal details c. be clear about who will respond and when (aiming for response times that are as short as practicable) d. provide people with details of the central website and how to seek support in Recommendation 18.
21 The Victorian Government should strengthen the role of community organisations in responding to sexual violence as a priority. The Victorian Government should provide continued funding and support for community organisations to take on key responsibilities, including: a. providing safe spaces for people to disclose sexual violence b. providing support to people who have experienced sexual violence and referring them to other services or the justice system c. developing community-specific ways to prevent sexual violence and inform the community about their support and justice options d. developing pathways to other services and the justice system, including protocols e. collaborating with sexual assault services f. providing training to mainstream and specialist sexual assault services on diverse needs and experiences.
22 The Victorian Government should review the funding arrangements of Sexual Assault Services Victoria to ensure that they can: a. provide ongoing training to community organisations on identifying and responding to sexual violence b. provide professional supervision for community organisation staff working with sexual violence c. develop mutual referral arrangements with community organisations d. pursue community outreach, service co-location and secondments and establish community liaison positions in collaboration with community organisations.
23 Building on the experience of the current pilots, the Victorian Government should fund and support the development of permanent Aboriginal sexual assault services that respond to the different needs of Aboriginal women, children and men.
24 As part of the Sexual Assault Strategy, the Victorian Government should address the support and justice needs of: a. women, children and young people in contact with the justice system who have experienced sexual violence b. children and young people using harmful sexual behaviour.
25 As part of its work on Recommendation 24, the Victorian Government should strengthen the availability of early intervention, diversion and therapeutic support options within the community that address diverse needs and experiences.
26 The Victorian Government should fund therapeutic interventions for young people using harmful sexual behaviour to meet demand.
27 Victoria Police should engage with priority communities to identify and put in place measures to strengthen community engagement, with a specific focus on sexual violence. This should: a. build on existing good practice in Victoria Police b. use Sexual Offences and Child Abuse Investigation Teams as the main avenue to build relationships with communities in their area c. create pathways to reporting between police and community organisations and victim survivors in priority communities d. be formalised through protocols or other measures.
28 The Victorian Government should establish a restorative justice scheme in legislation (‘the restorative justice scheme’) that applies to all offences. The following principles should guide restorative justice for sexual violence in the restorative justice scheme: a. voluntary participation b. accountability c. the needs of the person harmed take priority d. safety and respect e. confidentiality f. transparency g. the process is part of an ‘integrated justice response’ h. clear governance.
29 The restorative justice scheme should be adequately resourced to ensure: a. victim survivors and people responsible for harm have independent, professional support throughout the process b. participants have access to independent legal advice c. independent assessments for children who wish to participate are conducted, in addition to the standard screening procedures d. children who participate are provided with independent and specialised support.
30 Victoria’s Aboriginal communities should be supported to design accredited restorative justice programs for Aboriginal people.
31 The restorative justice scheme should supplement criminal justice and be available in the following situations: a. where a person harmed does not wish to report the harm or to pursue a criminal prosecution b. where a harm is reported but there are insufficient grounds to file charges c. where charges were filed but the prosecution discontinues the prosecution d. after a guilty plea or conviction and before sentencing e. after a guilty plea or conviction and in connection with an application for restitution or compensation orders f. at any time after sentencing.
32 The Director of Public Prosecutions should amend the Policy of the Director of Public Prosecutions for Victoria to ensure that the availability of restorative justice does not influence prosecution decisions.
33 Therapeutic treatment programs should be available to support people responsible for sexual violence who are participating in restorative justice and/or commit to participating in a program as part of an outcome agreement. These supports should be developed as part of the coordinated approach to preventing sexual offending in Recommendation 47.
34 The restorative justice scheme should require justice agencies to inform victim survivors they are entitled to request a restorative justice process.
35 Restorative justice for sexual violence should be available through several providers.
36 The Department of Justice and Community Safety should be responsible for the restorative justice scheme. The Commission for Sexual Safety (Recommendation 90) should work with the Department to provide oversight in relation to restorative justice for sexual violence. Oversight should include: a. establishing training standards b. establishing accreditation criteria c. ensuring restorative justice outcome agreements are monitored d. establishing and managing a complaints process e. evaluating programs and collecting data.
37 The time limit for applications in sexual offence cases should be removed fromthe new financial assistance scheme that was recommended in the Victorian Law Reform Commission’s Review of the Victims of Crime Assistance Act 1996 report.
38 The new financial assistance scheme that was recommended in the Victorian Law Reform Commission’s Review of the Victims of Crime Assistance Act 1996 report should include a specialised stream for sexual offences. Decision makers in this stream should have expertise in sexual violence, strong standing in the community and positions of authority in the new Commission for Sexual Safety (Recommendation 90).
39 The new Commission for Sexual Safety (Recommendation 90), or the body that has oversight of the new financial assistance scheme that was recommended in the Victorian Law Reform Commission’s Review of the Victims of Crime Assistance Act 1996 report, should report annually on themes from sexual offence victim conferences, to improve the system’s response to sexual violence. These reports should be publicly available.
40 The new financial assistance scheme that was recommended in the Victorian Law Reform Commission’s Review of the Victims of Crime Assistance Act 1996 report should require decision makers in the sexual violence stream (see Recommendation 38) to ensure that recovery payments for sexual offences reflect current research and evidence about the impacts of sexual violence.
41 The Victorian Government should provide funding for people who wish to bring civil proceedings against a non-institutional defendant (or defendants) for sexual assault where: a. their case raises important systemic or legal issues, or b. they face multiple barriers to justice and their case has reasonable prospects of success.
42 The Victorian Government, or an agency or authority it authorises, should bring enforcement proceedings on behalf of a person who has experienced sexual violence, if they request it. This should be available if the individual responsible for sexual violence does not fulfil the terms of a civil settlement or court order to pay damages or compensation for injuries resulting from sexual violence.
43 The Victorian Government should invest in strengthening the support available to people who have experienced sexual violence, including supporting any decision making about their justice options or interactions with the justice system. This investment should include: a. significant increases in resourcing centres against sexual assault to meet demand b. funding training, secondary consultation and other supports needed to extend the capacity of other parts of the service system to respond to sexual violence.
44 The Victorian Government should make flexible support packages that were introduced as part of family violence reforms available to people who have experienced sexual violence.
45 The Victorian Government should consult on and co-design a model of victim support that uses single advocates to provide continuous support for people who have experienced sexual violence across services and legal systems. These independent advocates should: a. provide information about justice options b. support them to understand and exercise their rights, including their rights under the Victims’ Charter Act 2006 (Vic) c. support their individual needs, including through referrals to services d. liaise with, and advocate for them to, services and legal systems. The model of an independent advocate should: a. aim to empower those experiencing sexual violence b. enable advocates to provide holistic, individualised and specialised support, including specialised expertise and understanding of working with children and young people c. not depend upon a person’s engagement with the criminal justice system d. give priority to people who are under-served and/or who face the most complex interactions between services and systems e. include diverse points of access to such support f. be co-designed with under-served communities and people who have experienced sexual violence g. include support and training for advocates h. include oversight of the scheme.
46 The Victorian Government should fund legal advice and, where necessary, representation until the point of trial and in related hearings, to ensure victim survivors can exercise their rights and protect their interests, including: a. their rights and privileges in relation to evidence (for example, the confidential communication privilege, alternative arrangements and special protections, access to intermediaries) b. their rights to privacy in relation to disclosures of personal information (for example, information about their sexual history, the nature of cross-examination, or suppression orders) c. their options for compensation, including under the Sentencing Act 1991 (Vic), victims of crime compensation, and civil or other compensation schemes d. the implications of taking part in restorative justice and referrals to restorative justice when applying for compensation or restitution orders.
47 As part of the Sexual Assault Strategy, the Victorian Government should develop a coordinated approach to preventing sexual offending, with a focus on early intervention programs that meet the Headline Standards in the National Outcome Standards for Perpetrator Interventions.
48 To help prevent reoffending, the Victorian Government should ensure that reintegration programs for people who have committed sexual offences are available and funded to meet demand. This should include a trial of the Circle of Support and Accountability program in Victoria.
49 Key outstanding recommendations from the Victorian Law Reform Commission’s Sex Offenders Registration inquiry should be immediately implemented to enable a. an individualised and discretionary approach to registration b. shorter registration periods with more regular review c. protection for children and young people from registration d. any necessary transitional arrangements.
50 The Victorian Government should review the definition of consent under section 36 of the Crimes Act 1958 (Vic) and the fault element of ‘no reasonable belief in consent’ under section 36A of the same Act with the aim of moving towards a stronger model of affirmative consent. In doing so, it should: a. formulate a requirement for a person to ‘take steps’ to find out if there is consent b. consult widely with members of communities and stakeholders c. deliver training and education for people working in the criminal justice system on the reforms d. deliver community education and programs on the reforms.
51 Section 36(2) of the Crimes Act 1958 (Vic) should be amended to include a new circumstance in which consent is not given by a person where, having consented to sexual activity with a device to prevent sexually transmitted infections or contraceptive device, the other person does not use, disrupts or removes the device without the person’s consent.
52 The image-based sexual offences in sections 41B, 41C, 41DA, 41DB of the Summary Offences Act 1966 (Vic) should be relocated to the Crimes Act 1958 (Vic) as indictable sexual offences and amended to: a. include the taking of intimate images without consent or being ‘reckless’ as to consent b. expand the offence of distributing intimate images to include being ‘reckless’ as to consent c. define ‘intimate image’ so that it applies to people of diverse genders, including transgender people and intersex people, and include altered intimate images d. give courts power to order the destruction of the intimate images.
53 The definition of ‘sexual offences’ in the Crimes Act 1958 (Vic) should be amended to include these image-based sexual abuse offences to extend the protections for giving evidence and suppressing identities.
54 To reduce the risks of overcriminalising children and young people who commit image- based sexual abuse offences: a. the Crimes Act 1958 (Vic) should specify that prosecution of perpetrators under the age of 16 should require approval from the Director of Public Prosecutions b. Victoria Police should use its discretion to issue formal cautions for image- based sexual abuse offences, without the requirement for ‘exceptional circumstances’.
55 Victoria Police should ensure that image-based sexual abuse is investigated by the Sexual Offences and Child Sexual Abuse Investigation Teams.
56 The Crimes Act 1958 (Vic) should be amended to include transitional provisions for changes to sexual offences made by the Crimes Amendment (Sexual Offences) Act 2016 (Vic).
57 The Victorian Government should implement previous recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to the ‘course of conduct’ charge and the offence of ‘persistent sexual abuse of a child under the age of 16’.
58 The Victorian Government should expand the availability and accessibility of the Intermediary Pilot Program by: a. amending the Criminal Procedure Act 2009 (Vic) to ensure that all witnesses and accused persons with communication difficulties have access to the intermediary scheme b. expanding its availability to all venues of the County Court of Victoria, including providing the funding and resources to support an expansion.
59 Victoria Police should set up processes to ensure any victim, witness, offender, accused or suspect in a sexual offence case is notified of the independent third person program and given the opportunity to confirm their eligibility.
60 The Victorian Government should resource the independent third person program to meet current and future demand and program training needs.
61 The Victorian Government should review arrangements to improve access to safe language services. This should include investing in training for language services in family and sexual violence and extending the pool of trained interpreters, including through: a. funding and encouraging training through relevant community services b. identifying ways to extend the pool of trained interpreters across Australia to address privacy concerns.
62 The Victorian Government should, as part of the Sexual Assault Strategy, develop measures: a. to extend access to forensic medical examinations across Victoria, including by the increased use of forensic nurses b. to give victim survivors the option of a forensic medical examination, without requiring a report to the police.
63 Victoria Police should complete implementation of Recommendation 5 of the Victorian Equal Opportunity and Human Rights Commission’s Beyond Doubt report to gain and maintain communication access accreditation based on the advice of Scope, the disability support provider. Police stations that specialise in sexual offences should be accredited as a matter of high priority.
64 The protocol for child sexual abuse referred to in Recommendation 13 should identify as a priority evidence-informed practices in child interviewing and ways to measure and improve the quality of interviews.
65 Victoria Police should review and strengthen its training and resources to ensure regular and ongoing professional development for specialised police dealing with sexual offences. This should include addressing: a. responses to children (particularly children in out-of-home care), people in contact with the justice system and people working in the sex industry b. interviewing of children and the recording of VAREs c. the appropriate use of interpreters d. its understanding of image-based sexual abuse e. the quality of evidence gathering f. the quality of police prosecutions.
66 The Victorian Government should establish an independent and high-level panel that includes multi-disciplinary expertise to review police and prosecution decisions. A complainant or a person acting on the complainant’s behalf should have the right to request a review by this panel of decisions to discontinue or not file charges or indictments in sexual offence cases after any internal review. This panel should have the power to make recommendations, based on its review of these decisions, to: a. the police and prosecution about if and how they should continue individual cases, after any internal review process has been completed b. the police and prosecution about how to improve the quality of their decision making c. the Victorian Government to address barriers to progressing sexual offence cases.
67 The Victorian Government and Victoria Police should review and strengthen training and practice guidance on sexual violence under the Family Violence Multi-Agency Risk Assessment and Management (MARAM) Framework, including for training to be delivered to those working in the criminal justice system.
68 The Law Institute of Victoria and the Victorian Bar should encourage and promote MARAM-aligned training for their members.
69 The Victorian Government should fund the development and delivery of a program to educate and train police, lawyers, judges and magistrates on: a. the nature and prevalence of sexual violence in the community b. the effects of trauma and how to reduce the risk of further trauma c. barriers to disclosure and reporting sexual violence d. identifying and countering misconceptions about sexual violence e. how to respond to diverse experiences and contexts of sexual violence f. effective communication with and questioning of victim survivors, including children g. procedures related to ground rules hearings and the role of intermediaries h. limits on improper questioning and judicial intervention i. alternative arrangements for giving evidence, and special hearings for children and people with a cognitive impairment j. the therapeutic treatment order system k. any reforms implemented from this report. Funding for the program should be on an ongoing basis.
70 Data on the take up of the program in Recommendation 69 across each of these agencies should be published annually.
71 The Office of Public Prosecutions and Victoria Legal Aid, in consultation with relevant legal professional bodies, should take the lead on developing the requirements for specialised training based on the program in Recommendation 69. Only accredited counsel in sexual offences cases who meet the training requirements should be briefed to appear for the prosecution, or in legally aided cases.
72 Victoria Legal Aid and the Office of Public Prosecutions should increase fees for accredited counsel in sexual offence cases who meet the training requirements developed in Recommendation 71, in consultation with the Victorian Bar. The Victorian Government should fund the increase in fees on an ongoing basis.
73 All judicial officers in the Magistrates’ Court of Victoria, County Court of Victoria and the Victorian Court of Appeal who sit on criminal cases or appeals involving sexual offences should be required to complete education and training in areas covered in the program in Recommendation 69.
74 In making future judicial appointments, the Victorian Attorney-General should consider the potential appointees’ suitability for hearing cases involving sexual offences.
75 The Victorian Government should implement outstanding recommendations from the Victorian Law Reform Commission’s Committals report.
76 Any reform in Victoria relating to tendency and coincidence evidence resulting from the adoption of the Council of Attorneys-General’s Model Bill on this evidence should be evaluated by the government. The evaluation should assess whether the reforms are achieving their aims and working fairly, after three years from the reforms commencing.
77 The Victorian Government should review how appeals are operating in sexual offence cases to identify legal or procedural issues needing reform.
78 New jury directions should be introduced in the Jury Directions Act 2015 (Vic) to address misconceptions about sexual violence on: a. an absence or presence of emotion or distress when reporting or giving evidence b. a person’s appearance (including their clothing), use of drugs and alcohol, and presence at a location c. behaviour perceived to be flirtatious or sexual d. the many different circumstances in which non-consensual sexual activity may take place, including between: i. people who know one another ii. people who are married iii. people who are in an established relationship iv. a consumer of sexual content or services and the worker providing the content or services v. people of the same or different sexual orientations or gender identities e. counterintuitive behaviours, such as maintaining a relationship or communication with the perpetrator after non-consensual sexual activity.
79 The Jury Directions Act 2015 (Vic) should be amended so that existing jury directions and jury directions on topics in Recommendation 78 can be: a. given by the judge to the jury at the earliest opportunity, such as before the evidence is adduced or as soon as practicable after it features in the trial, and b. repeated by the judge at any time during the trial, and c. in addition to the judge’s own motion, requested by counsel before the trial or any time during the trial.
80 The Victorian Government should set up and maintain an independent expert panel for sexual offence trials to be used by the prosecution, defence and the court. The Commission for Sexual Safety should have a role (Recommendation 90) in setting up and maintaining the panel. To maintain experts of a high calibre, this expert panel should be subject to an approval and periodic review process.
81 The Judicial College of Victoria, in consultation with the County Court of Victoria, should develop written materials and training to encourage the use of integrated jury directions in sexual offence trials.
82 Section 63 of the Jury Directions Act 2015 (Vic) should be amended to require that, in all sexual offence trials, explanations of ‘beyond reasonable doubt’ should be given as set out under section 64 of that Act.
83 The Victorian Government should commission ongoing research into improving juror understanding, countering misconceptions about sexual violence and supporting the jury’s task in sexual offence trials. The research should assess the effectiveness of, and identify ways to improve, jury directions, expert evidence and other measures that aim to support the jury’s task of deciding if the accused is guilty or not guilty.
84 To ensure complainants are respected when giving evidence in the Magistrates’ Court of Victoria and County Court of Victoria, and are able to provide the best quality evidence, the Criminal Procedure Act 2009 (Vic) should be amended to require, in the absence of the jury and before the complainant is called to give evidence, that the judicial officer, prosecution and defence counsel discuss and agree to: a. the style and parameters of questioning so that questioning is not improper or irrelevant b. the scope of questioning including questioning on sensitive topics and evidence to reduce re-traumatisation c. the preferences and needs of complainants. The treatment of complainants and their questioning should be in line with what the judicial officer determines following the discussion. The process can be repeated until the conclusion of the complainant’s evidence.
85 The Victorian Government should fund the courts to strengthen measures to protect complainants in sexual offence cases by: a. ensuring that they can enter and leave courthouses safely, including, where possible, allowing them to use a separate entrance and exit b. using appropriate means to screen complainants from the accused when giving evidence in the courtroom c. ensuring technology is reliable to support complainants to present their best evidence.
86 The Criminal Procedure Act 2009 (Vic) should be amended so that a. special hearings under Part 8.2 Division 6 for children and people with a cognitive impairment are available in the Magistrates’ Court of Victoria b. all other complainants in sexual offence trials in the County Court of Victoria and contested hearings in the Magistrates’ Court of Victoria are entitled to provide the whole of their evidence as pre-recorded evidence.
87 In line with recommendations in the Victorian Law Reform Commission’s inquiry on The Role of Victims of Crime in the Criminal Trial Process, the Evidence (Miscellaneous Provisions) Act 1958 (Vic) should be amended to: a. strengthen procedural requirements to ensure that complainants can participate in decisions about applications to introduce communications made in confidence by a complainant to a medical practitioner or counsellor, either before or after the alleged sexual offending occurred (confidential communications) and have access to legal assistance b. extend the protection of complainant’s records to health information as defined by the Health Records Act 2001 (Vic).
88 Procedures under Part 8.2, Division 2 of the Criminal Procedure Act 2009 (Vic) should be amended by: a. requiring the prosecution (or informant in summary proceedings) to notify the complainant of their right to appear and the availability of legal assistance in relation to an application concerning sexual activities under section 342 of the Criminal Procedure Act 2009 (Vic) b. requiring the court to be satisfied that the complainant is aware of the application and has had an opportunity to obtain legal advice c. prohibiting the court from waiving the notice requirements except where the complainant cannot be located after reasonable attempts or the complainant has provided informed consent to the waiver d. providing complainants with standing to appear e. permitting complainants to provide a confidential sworn or affirmed statement to the court specifying the harm they are likely to suffer if the application is granted.
89 The language of section 341 of the Criminal Procedure Act 2009 (Vic) should be modernised by replacing the word ‘chastity’ with a neutral term.
90 The Victorian Government should establish an independent body, such as a Commission for Sexual Safety, following consultation on its nature and functions. This body should be responsible for preventing and reducing sexual violence, and supporting people who experience sexual violence.
91 The implementation of the reforms arising from this report and other sexual violence reforms should be monitored to hold the Victorian Government, people and bodies accountable for their effective implementation. The Victorian Government should: a. report annually on the progress of implementing these reforms b. consider establishing a monitoring function for sexual violence reforms, in light of the scope of future reforms.
