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Review of justice responses to sexual violence announced in Victoria

The Victorian Law Reform Commission announced on 1 April that it will undertake a review into the justice system’s response to sexual offences. The review will become the third active review into sexual offences in Australia, with Queensland and New South Wales (NSW) set to release final recommendations in the near future.

Though it is early days and we are yet to see how the Victorian Commission will run its review, the terms of reference indicate that the scope of the review is broad, spanning all sexual offences against adult and child victim-survivors. The Commission is also tasked with producing recommendations that could ‘reduce the trauma’ for survivors in their dealings with the justice system, as well as improving responses to sexual violence.

This is an important contrast to the approaches taken by reviews in Queensland and NSW which are both characterised by narrow terms that focused solely on the offences of rape or sexual assault and the definition of consent. Instead, the Victorian Commission is to look broadly at all relevant legislation, policy and importantly, research that are relevant to the issues covered in the review. As part of this, they are required to review the impact of the changes made in Victoria since the Commission’s inquiries into Sexual Offences (2004), Evidence (2006), Jury Directions (2009) and Victims of Crime in the Criminal Trial Process (2016).

This means that the Commission will be able to look beyond simply the definition of consent and the fault element of the relevant offences, allowing the Commission to review the handling of sexual offences cases from reporting to trial decision, including an analysis of the way that statutes function in relation to each other. This is something the NSW and Queensland reviews have been unable to do, greatly limiting the chances that the reforms will be effective.

It is not clear what prompted the review, but it comes just a week before the High Court handed down its decision in the Pell case.

It also follows a panel event and launch of Rape and Sexual Assault Research and Advocacy (RASARA) jointly hosted by Swinburne and Monash Law Schools, entitled ‘Reasonable Belief in Consent: Problems and Possibilities in Rape Law Reform’. RASARA directors Saxon Mullins, Dr Rachael Burgin and Professor Jonathan Crowe were joined by Katrina Marson, Lydia Thorpe and Associate Professor Jacqui Horan on the panel which was attended by judges, prosecutors and defence lawyers as well as advocates, academics and members of the public. The panel advocated for further reforms to rape law in Victoria to adequately address the issues that remain in the application of the law, as well as low reporting, high attrition and low conviction rates for sexual offences. Dr Burgin advocated on the panel for a holistic Victorian review into rape law that also considered further changes to sexual history evidence.

RASARA’s Dr Burgin and Associate Professor Asher Flynn have conducted a study of Victorian rape trial transcripts and found that rape myths continue to permeate rape trials Victoria, despite considerable reforms to rape law. You can read this peer reviewed work here and here.

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