Top Lawyer Says Juries Fail on Rape
By Darrin Farrant, Law Reporter
Originally published in The Age, November 19, 2001
A leading law reformer has blamed jury attitudes towards sexual attacks for a steep drop in Victoria's conviction rates in rape cases.
Victoria's Law Reform Commissioner Marcia Neave said yesterday that many juries still held outdated stereotypes about rape and sexual assault.
She said jurors remained reluctant to convict when the victim had not suffered any physical injuries or when the attacker was known to them.
"Many people still think that if you haven't fought, you have consented. A lot of people are not actually physically injured. But they have been sexually assaulted," she said.
Professor Neave's comments have been backed by sexual assault counsellors, who say they are disturbed by falling conviction rates.
Since 1988-89, the percentage of those charged with rape in Victoria being found guilty has fallen from 46 per cent to less than 25 per cent.
Professor Neave, who i s conducting an inquiry into Victoria's sexual offences laws, said juries' attitudes needed closer study.
"This is the harder edge of law reform … But you have got to give people the facts before they can make these important decisions. If you take something like family violence, then as a result of a large-scale campaign, people's attitudes have changed," she said.
Professor Neave said it was too early to say exactly why rates of conviction—and rates of those who plead guilty to rape charges—have fallen so steadily in recent years.
One reason could be that many people now feel empowered to come forward and press for charges to be laid where previously they did not.
There may also be more cases involving so-called date rape, in which it is harder for prosecutors to show that consent was not given.
Professor Neave said: "We need to talk about this more, talk about what rape really is. The majority of people are assaulted by someone they know."
Marg D'Arcy, manager of Victoria's sexual assault crisis line, said the falling figures had the upside that many more women were now prepared to pursue their claims in court.
"The problem is not with our legislation. It's with the attitudes of both juries and courts, too - judges and magistrates," she said.
Professor Neave said Victoria was regarded as having among the best sexual offence laws in Australia, and said courts had tried to change procedures to make them less gruelling for people bringing cases.
A witness' prior sexual history can no longer be brought into evidence by the defence unless the judge considers it relevant and gives permission.
But Professor Neave said that community understanding of how the criminal justice system dealt with rape cases was generally poor.
She also called for reforms to sexual offence laws involving children and the mentally disabled.
The commission's discussion paper is being released for public comment until January.
