IN ADULT SEXUAL ASSAULT IN NEW SOUTH WALES
Sydney, 12 February 2003
SEXUAL ASSAULT WITHIN A
HUMAN RIGHTS FRAMEWORK
Nicholas Cowdery QC
Director of Public Prosecutions, NSW
President, International Association of Prosecutors
In addressing sexual assault the human rights of all involved must be safeguarded. Much of what I have to say will not surprise you; nor will it be new to you. But it may be news to those members of the community who still believe that they have the right to exercise power and control through the sexual assault of others; those who believe, especially, that women and children, upon whom men commit the majority of sexual offences, are their possessions.
Indeed, there is a deal of historical material which suggests that the law against rape evolved not primarily to protect women, but to safeguard male property interests. In earlier times a female’s virginity virtually ensured that only her prospective husband’s issue could lay claim to his estate and therefore assured the price a father might obtain for his daughter (in turn improving his property or political connections).
The belief that women are property is an ancient one, still practised in some primitive societies and in some sections of more enlightened societies. Some interpretations of religions play a role in the perpetuation of the belief. In our society it is often promoted in some male cultural groupings. It arises essentially from a perception that because men (generally speaking) are larger and physically stronger than women and children, and because men (again, generally speaking) hold positions of comparative power and influence, women and children should do what they want them to do. Belief in (or at least, acceptance of) inequality lies at the heart of it. There is an inherent, primitive, physical threat involved.
Good examples of the mindset may be taken from Australia’s distant and more recent past. As Professor Behrendt noted in an article in the Judicial Officers’ Bulletin last July: “…Aboriginal women were forcibly abducted in all parts of Australia. The Normanton Protector of Aborigines noted in 1904 that it was common practice to round up ‘small mobs of wild natives’ and sexually assault their women… motorcar loads of white men from bush townships and construction camps raided the station camps for women… It is clear from such encounters that Aboriginal women were likely to be taken forcibly if they were not ‘handed over’ to white men in search of sexual gratification.”
Professor Behrendt also noted the complicity of the modern legal system in the subordination of Aboriginal women. “As agents and enforcers of the criminal justice system, the actions of police are particularly telling. A Human Rights and Equal Opportunity Commission Report  has detailed several cases in which police officers were implicated in the sexual assault of Aboriginal women in custody, and where police were reluctant to pursue complaints made by Aboriginal women.”
Sexual assault is allied with physical assault. They share qualities of the exercise of power, of dominance, of individual and immediate, mindless gratification. Many factors are associated with the causes of sexual assaults, but gender and power relationships continue to be significant in sexual violence against women and children.
Adult sexual assault (like child sexual assault) shows no sign of going away. The criminal justice system must also deal with the sexual assault of persons who are now adult, but who were assaulted as children – usually because of delayed reports of cases. That introduces another layer of difficulty to the prosecution of these offences.
As you may know, next month there will be an election in this State. There is still a strong blokey male element in the formulation and expression of election policies at such times and I was interested to look back at a speech I made to a meeting of Zonta International about domestic violence in April 1999, just after the last election. Then I said:
“A month ago we had a State election. As is customary at such times – and despite vigorous denials by both sides – there was a law and order auction. Once again the major parties intoned the election mantra of ‘more police, more powers, more prisons’. We heard about thousands of police to be plucked from the air, about zero tolerance policing, about grid sentencing, about the naming and shaming of juvenile offenders and there was much more tough talk directed to addressing terror in the streets.
Did any of you hear a word about domestic violence?”
And in this 2003 election campaign has anybody heard a word about it? Or about the allied problem of adult – or even child – sexual assault? Plus ca change …
Of course, adult sexual assault occurs in many contexts, not just in remote settlements or the home environment. And it is perpetrated against males, too, in prisons and elsewhere. But the vast majority of adult cases involve a woman victim of a man whom she knows.
Any form of assault – any apprehension or experience of hostile violence – is a breach of the victim’s lawfully recognised and legally enforceable human rights. It is also morally and ethically objectionable and contrary to the tenets of the major religions and belief systems. The legal rights involved are prescribed both domestically and internationally – they range widely over the rights to liberty, personal physical and psychological integrity, equality, freedom from violation of various kinds. In modern times we need go back no further than the Universal Declaration of Human Rights (UDHR) of 1948 to find a universal prohibition of any distinction between members of the human family in the recognition and enforcement of universal rights, including the rights to liberty and personal security.
In order to promote such equality effectively it has been necessary to create special international instruments. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1981 enforces the principle of equality of men and women. Article 5 (a) provides, for example, that States Parties shall take all appropriate measures “To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”.
Article 23 specifically reinforces any domestic and other international provisions that are “more conducive to the achievement of equality between men and women”.
The Declaration on the Elimination of Violence Against Women of 1993 in Article 4 obliges States Parties to condemn violence against women and not to invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.
The Convention on the Rights of the Child of 1990 in Article 19 obliges States Parties to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual
abuse …” and contemplates judicial involvement where appropriate.
Instruments of this kind establish a broad framework within which domestic jurisdictions may make more detailed legal and other arrangements to combat the evils identified and enforce the rights that are consistent with our general moral standards.
Sexual assault sometimes occurs on a wider scale than we experience in New South Wales. It remains a weapon of warfare against civilian populations (and one has only to consider, in fairly recent times, Rwanda, Bosnia and East Timor). The International Criminal Tribunals for the Former Yugoslavia and for Rwanda have it within their mandate. The International Criminal Court (ICC) will have jurisdiction to deal with such offences if they are committed in ways that constitute war crimes or crimes against humanity. It is interesting to note that the ICC will offer unprecedented access for victims. When their interests are affected, they will be able to participate in the proceedings through legal representatives and they will be able to apply for reparations.
In the meantime, there is much to engage us at the domestic level and we are constantly searching for better ways to address the problem once it has been reported.
Many features of the way in which we prosecute these offences raise human rights implications. We need to identify effective and efficient ways of proceeding; but we must also be mindful of the need not to re-victimise victims or infringe the legitimate rights of accused persons and all others involved in the process. The right balance must be struck.
In inquisitorial (or civil) criminal justice systems, victims are usually parties to the proceedings and, so it seems to me, there is a much greater emphasis on the search for the truth. The courts play a more active role in investigations and in the conduct and supervision of the proceedings. Victims have a different status in the proceedings – to take an extreme case: in Sweden victims may be parties, represented by counsel funded by the government and able to seek compensation in the proceedings. But the civil law systems are not perfect, either – some argue that they err on the side of not preserving sufficiently the rights of accused persons.
Ours is an adversarial system of criminal justice. There are only two parties, the Crown (or the community) and the accused. The Crown presents its case. The accused attacks that case and may raise a case of its own. The Crown attacks the stance taken by the accused. I do not describe this process as a search for the truth, although we may stumble upon it in many cases. It is a contest, usually, of case against case in which some facts may even be ignored or omitted for legal or tactical reasons. The ultimate test is whether or not the prosecution’s case has been established to the requisite degree of satisfaction.
The victim is not a party to these proceedings. In practice the victim is a witness (usually) with some additional rights and considerations that must be observed. In NSW there is a statutory Charter of Victims Rights (under the Victims Rights Act 1996) which must be enforced.
Our court process is predominantly oral. Therefore the victim must actually tell a story and be tested orally on it there and then. The process therefore requires the victim to provide directly explicit and intimate details of what happened to her at the time of the sexual assault and often to be tested about that detail.
The legal process incorporates the presumption of innocence of the accused, the accused’s right to silence and freedom from disclosure, the Crown’s onus of proof to the standard of beyond reasonable doubt. The rights attaching to a victim are more tenuous. It is only recently that a qualified prohibition has been introduced on the cross-examination of a victim on her or his sexual history or reputation. Private communications to counsellors may be exposed in some cases. Despite all the talk about the judicial management of cases, we still have a long way to go before magistrates and judges, overall, will exercise proper control over the cross-examination of victims and the conduct of the proceedings generally – they still fear infringing the rights of the accused and being criticised by often out-of-touch appellate courts. While we do have some legislative protections in place, they are not being adequately utilised. The right of an accused person to test the evidence should be exercised consistently with the maintenance of the basic human rights of all others involved and there should be appropriate compassion and respect for the victim’s rights and personal dignity.
To redress the imbalance a number of measures have been advocated – extensive discussions with victims in order to prepare them for testifying, hearings in camera in some circumstances, the use of closed circuit television links to remote rooms, screens to separate the protagonists in court, the presence of support persons, non-publication orders beyond the courtroom. These and like measures involve a re-balancing of rights in practice – away from an almost exclusive focus on the rights of the accused and towards recognition and enforcement of the rights of the victim. Another area in which the competing considerations are yet to be resolved is the cross-examination of a complainant by an unrepresented accused person and the NSW Law Reform Commission is presently considering that issue.
The introduction of vulnerable witness legislation in NSW would go a long way towards addressing the imbalances that remain for victims of sexual assault. Such legislation exists in other States and enables victims of sexual assault to have options of the kind I have mentioned.
Prevention of harm, of course, is always better than an attempt at a cure. There are many models for prevention programs; but all of them must proceed from the fundamental premises of equality and respect for the integrity of the individual – the protection of individual rights. The reporting and prosecution of sexual assault offences are vital aspects of effective prevention strategies. However, multi-faceted community prevention strategies are still needed to address community concerns, such as (at present) the increasing incidence of drug-facilitated sexual assaults.
When matters do reach the courts we need to be mindful, as I have said, of the rights of all concerned. In 1996 a NSW report was released entitled “Heroines of Fortitude – the experiences of women in court as victims of sexual assault”. A number of recommendations were made for the reform of court and allied procedures and substantial progress has been made towards the implementation of those recommendations (although there is still a way to go).
The recommendations generally were consistent with the improvement of this jurisdiction’s observance of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985. Some of its provisions, which seek to bolster the rights of victims of crime, particularly, in the criminal justice process of all kinds of legal systems, are as follows.
“4 Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided by national legislation, for the harm that they have suffered.
5 Judicial and administrative mechanisms should be established and
strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
6 The responsiveness of judicial and administrative processes to the
needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and progress
of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
(b) Allowing the views and concerns of victims to be presented and
considered at appropriate stages of the proceedings where their
personal interests are affected, without prejudice to the accused
and consistent with the relevant national criminal justice system;
(c) Providing proper assistance to victims throughout the legal process;
(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.”
That is not a bad general recipe, but we have some work to do yet to comply with it. It is a recipe that resonates particularly strongly in the context of the prosecution of sexual assault offences. It is a recipe that can help to ensure that, while the rights of the accused are preserved appropriately, victims are not re-victimised – that the violation of their rights that has already occurred is not compounded by the process that is intended to obtain redress both for them individually and for the whole community.