The heartache of trying to deal with and overcome the trauma associated with sexual assault is a challenging feat in itself. However, the inadequate criminal sentencing of perpetrators only serves to further amplify the re-traumatisation for survivors. Not only does it have the potential to inextricably strip the victim of their last sense of justice, but it can also intensify the mental distress of sexual assault.
The fact that up to 99 per cent of sexual assault and rape offences escape criminal conviction in Victoria is completely unacceptable (1). Courts need to take into greater consideration the impact that inadequate sentencing can have on victims and, by extension, the community. The imposition of less stringent penalties only gives perpetrators of sexual assault a ‘licence’ to do as they please without any fear of repercussions while dismissing the survivor’s abuse.
Sentencing for sexual assault
The maximum sentence for sexual assault stands at 10 years (2), while the penalty for rape is held at a 25-year maximum (3). These maximum sentences are very rare, as evidenced in Victoria where the maximum length of imprisonment imposed from 2011 to 2016 was 15 years (4). Even in other jurisdictions such as Queensland, there has only been one person in the state who received the maximum jail term in the past four years (5).
Cases such as the DPP v Dalgliesh (a pseudonym) and the Douglas Steele rape case have highlighted the shortcomings of the legal system in Australia by imposing a mere ‘slap on the wrist’ (6). In the first case, a recent High Court decision, the defendant raped his two stepdaughters (aged 13 and 15) while impregnating one of them and only received three and a half years of imprisonment. In the second case, Steele raped a 20-year-old indigenous student and was released after only serving 17 weeks behind bars. We must ask ourselves: are these lenient sentences proportionate to the victim’s harm that would linger with them for the rest of their lives and are they are enough to prevent recidivism and ensure rehabilitation?
The need for harsher retributive justice for sexual assault perpetrators is also a pressing global issue. The Stanford University rape case in 2015 involving Brock Turner is a good example of how his six-month jail sentence for sexual assault was decried by protestors as too lenient. This case accentuates the absurdity and gross negligence of legal systems, which consistently fail survivors. The victim in that case gave a powerful victim impact statement, expressing the effects that Turner’s attack had on her, but to no avail. Furthermore, Turner’s recent appeal regarding his conviction has only seemed to question the competency of the judiciary to suggest that it is ill-equipped to deal with cases of these nature appropriately.
On the other hand, there are also arguments that longer prison sentences are not the answer at all. Numerous studies have revealed that prisons only seem to exacerbate cycles of crime, are proven to almost never offer any prospect of rehabilitation, and are largely ineffective in treating the crux of criminality (especially so in sexual assault cases) (7). The balance between justice for survivors and rehabilitation for perpetrators is a consistently difficult issue for judicial members and legislators.
Flaws in the court process
As a leading advocate of ‘critical pedagogy’, Paulo Friere, argues, we as a society must develop our critical consciousness in order to provoke mobilisation within the Australian legal system. We can do this by recognising the oppressive structures of the legal system.
Historically, there have been many instances of sexual assault victim shaming. Victims were condemned because they simply froze during an attack, took a long time to report the offence, did not seek medical attention immediately after the offence, were intoxicated or were wearing clothing deemed to be ‘provocative’.
The legal system certainly has progressed to some extent from this ‘backward’ thinking. Recent changes have clarified the meaning of consent and provided direction to help minimise instances of victim blaming. For example, juries are given directions to not regard a person as having freely agreed to sexual acts just because they did not protest or physically resist (8). Survivors also cannot be cross examined and evidence must not be admitted about their sexual activities (other than those to which the charges relate) without leave of the court (9).
Thus, these legislative mechanisms can be useful in helping a conviction be obtained at jury trial by helping to overcome community prejudice against survivors, and perhaps in shaping the judge’s own attitudes. However, these sections essentially do nothing to prevent judges from inappropriately exercising their sentencing discretion. An example of this would be where a judge decides to impose a minimal custodial sentence despite a clear guilty verdict. Therefore, on both a legislative and practical level, further work can be done to overcome these oppressive structures.
The perception of false claims
The perception of false claims of sexual assault in society is varied. In particular, high profile cases like the allegations against Mike Tyson, Tupac Shakur and NBA star Derrick Rose have split opinion. Though both Tyson and Shakur were found guilty, many still believe them to be innocent due to the allegations being unfounded and trying to distort their reputations solely for the purpose of money and attention. In comparison, Rose was acquitted of rape charges, and was vocal on the subsequent effects of the accusation being compounding. He claimed that the toll of the allegation on him was both mentally and physically apparent; leading to him missing games because of injuries and expressing that he was in a “dark place” (10). On the other hand, the plaintiff’s lawyers argued that victim blaming had taken place during the trial with the defense painting the victim as a ‘gold digger’ and ‘slut’ (11).
Image Source: The Guardian
Allegations of sexual assault tend to be controversial and it can be difficult to form opinions on innocence and guilt. However, it is important to note that only around 2-6% of sexual assault allegations are found to be false (12). While the public may feel compassion for those who are accused, the community and judicial bodies need to be wary of this issue. Legislative changes in themselves are not enough; there is need for accompaniment with education on misconceptions to allow a more accessible court process for survivors to seek justice.
Major societal change and reformative justice are slow processes and changing established mindsets or structures are time consuming. Education needs to start from the beginning, especially at a grass roots level through education in schools. Empowered Together, as an organisation, understands the seriousness of the issue and does not stand for sexual assault in any shape or form. We want to see a change in these sentencing statistics and the way this issue is addressed by both the courts and law-reform bodies.
Sources
1. Rob Hulls, ‘Response to Sexual Offending – Pathways to Better Outcomes for Offenders’ (2014).
2. Crimes Act 1958 (Vic) s 40.
3. Crimes Act 1958 (Vic) s 38.
4. Sentencing Advisory Council, 2016.
5. Jessica Marszalek, ‘Outrage as courts go soft on Queensland criminals’ (2016).
6. DPP v Dalgliesh (a pseudonym) [2017] HCA 41.
7. Federation of Community Legal Centres (Victoria) Inc, Smart Justice Fact Sheet: ‘More prisons are not the answer to reducing crime’ (Last updated on 22 September 2014).
8. Crimes Act 1958 (Vic) ss36(a), 37AAA(e).
9. Criminal Procedure Act 2009 (Vic) ss 339, 342.
10. Raejhon Johnson, ‘Derrick Rose’s mental health is more serious than his NBA future’ (2017).
11. Rory Carroll, ‘NBA star Derrick Rose and friends cleared in rape case’, The Guardian (2016).
12. The Conversation, ‘Here’s the truth about false accusations of sexual violence’ (2017).
Feature Picture Source: ABC News