It was an opportunity for justice. But for sexual violence survivors, it misses the mark

This article mentions sexual abuse.

It was meant to be the final word, after years of tortured agonising over what is objectively the largest-scale public health crisis this country faces: endemic sexual violence.

The Australian Law Reform Commission (ALRC) was asked a year ago by the federal government to inquire into justice responses to sexual violence and to come up, finally, with concrete answers.

Their final report — Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence — presented 669 pages of discussion and 64 recommendations covering every conceivable aspect of the justice system’s interaction with sexual violence survivors.

Sadly, however, we can’t give the ALRC’s effort more than a bare pass mark. Like the curate’s egg, parts of it are excellent, but at the end of the day, it’s still a bad egg.

The best aspect of this exercise is that it adds the full weight of the ALRC’s imprimatur to the affirmation of some critical facts about sexual violence, including its statistical prevalence (one in five women and one in 16 men over 15 years old are victims of sexual violence, as are one in three girls and one in seven boys of child sexual abuse).

The report repeatedly reinforces the truth about this trauma — how sexual violence destroys lives and infects society. It aims to centre the experience of survivors seeking justice, recognise how easily and constantly they are re-traumatised and freshly traumatised by the justice system itself, and ask how this harm may be reduced or (preferably) eliminated. 

Much of what the ALRC has come up with, by way of recommendations for legal and structural reform, is sensible. None of it is remarkable.

Independent (though disappointingly limited) legal advice for survivors, justice system “navigators” and trauma-informed training for everyone involved in the process will reduce harmful risk for survivors who are subject to it, whether we’re talking about the criminal or civil justice system.

The problem is not the ALRC’s efforts to wrestle with what was on the table before it; the problem is what was never on the table at all.

That was a choice, not necessitated by the inquiry’s terms of reference (which, as drafted by Attorney-General Mark Dreyfus, were appropriately open-minded and non-prescriptive), nor by the evidence the ALRC could have considered.

The ALRC chose to treat the possibilities for reform as being limited by the known boundaries of the existing system response: that is, the criminal and civil justice systems as they have historically developed and operate today.

Among the things taken off the table: a list of longstanding “principles underpinning the right to a fair trial for accused people” — including the presumption of innocence and the right to silence. The ALRC declined to “question or interfere with any of these rights”.

Nobody rationally argues against the presumption of innocence, but the right to silence is not intrinsic to the rule of law and is in fact contestable. The refusal to even consider the appropriateness of structural features of the existing system implies that the system itself is beyond reproach or fundamental reform; rather, all it needs is some tinkering at the edges to render it more perfect.

As a result, what the ALRC has produced is a shopping list of reforms that promise to make the experience of survivors engaging with the existing system less harmful to them, in the expectation that this will encourage more of them to give it a go (that is, more than the 5% or so of survivors who report at all).

In addition, the report offers up some new pathways as alternatives: specifically, a bulked-up restorative justice structure, wider access to sexual harassment claims and improved victims of crime compensation schemes.

This reflects what we think is a misunderstanding of survivor feedback, which the report expresses as a common desire for a flexible system that offers options responsive to the specific needs of each survivor.

That’s not our experience, which tells us that there is in fact a consistency in what survivors seek when they come forward to society’s institutional framework tasked with responding to sexual violence.  What they tell us, all the time, is that they’re seeking agency for themselves and accountability for what was done to them.

Appreciating that, a better response would not be the fragmented, non-coherent list of alternative “justice pathways” from which they must choose as the ALRC’s report suggests, but an integrated system response, offering flexible options from a single starting point that recognises the common underpinning of why survivors come forward in the first place.

As things stand, survivors understandably ask why the system makes it so hard for them. From their perspective, rape is rape; why do the seemingly arbitrary distinctions between the different system responses, offering completely different processes and outcomes, exist at all? The ALRC worldview will not resolve that conundrum — it will make it worse.

Today, if a man rapes someone, the probability that he will be arrested, prosecuted and convicted for that crime is, by our calculation, less than 1% (and probably less than half that). It is statistically insignificant, which is why RASARA says that rape has been “effectively decriminalised” in Australia.

The ALRC’s recommendations will not materially change that statistic. The system cannot be made fit for the purpose of responding to sexual violence without challenging the socio-political scaffolding that has historically reinforced it. The justice system was not designed for the criminalisation of rape, and is structurally incapable of delivering an acceptable outcome (if, by acceptable, we mean a meaningful deterrent).

The ALRC asked itself what the problem is, concluding that it is survivors reporting rape but getting a bad response. Its solution is to clean up the response and offer more alternatives. In our view, it’s answered the wrong question.

The problem is the endemic prevalence of sexual violence, which society accepts because it refuses to confront the extremely uncomfortable truth that we’re drowning in it. If we want to take it seriously, we need to start by acknowledging that the problem isn’t getting better. That isn’t on survivors to fix.

We need to throw it all out and start again, this time with nothing off the table.

If you or someone you know is affected by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. In an emergency, call 000.

For counselling, advice and support for men in NSW, Victoria and Tasmania who have anger, relationship or parenting issues, call the Men’s Referral Service on 1300 766 491. Men in WA can contact the Men’s Domestic Violence Helpline on 1800 000 599.

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