This week, the government announced the start of its promised inquiry into justice responses to sexual violence.
The terms of reference were developed from national discussions last year. Federal, state and territory ministers took part, as well as victim-survivors and advocates. For many with experience and expertise in the area, the challenges highlighted were nothing new.
There has been a significant amount of time and energy poured into sexual violence law and policy reform in Australia since the 1970s, highlighting the persistent barriers faced by victim-survivors in seeking criminal justice responses to sexual violence and harm.
It is, therefore, pleasing to see the Australian Law Reform Commission finally listening. However, we are cautious about what impact reforms like this will realistically have, given previous attempts have been routinely undermined in practice.
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What do the terms of reference get right?
As much as they sound highly procedural, terms of reference are important because they determine what can and cannot be investigated.
Two important features are a step in the right direction. One is the inclusion of a lived-experience Expert Advisory Group. The second is the explicit mention of a trauma-informed approach to victim-survivor and stakeholder engagement through counselling services to those who participate in the consultation process.
The inclusion of a such a group is now a staple of many law reform inquiries and government departments (like the Victim Survivors’ Advisory Council in Victoria) to collaborate on policy. While this is welcome, there are important things for the Australian Law Reform Commission to consider.
Firstly, there are significant personal and psychological risks for victim-survivors who may contribute. The commission will need to ensure they’re supported.
Secondly, it is unclear how people will be selected to form the group. The commission needs to ensure the group is representative of diverse experiences and backgrounds.
Thirdly, power imbalances between survivors and the government can undermine victim-survivors’ contributions to reform efforts. The commission needs to consider how those with experience will be adequately listened to.
An important feature of the terms of reference is the focus on reforming the broader criminal legal system, not just laws. While more than 90% of victim-survivors never report to police, for those who do, we need to minimise the likelihood of the system being encountered as a “second rape”.
The commission’s focus on practices such as education for criminal justice personnel, access to a legal representative, and reforms to procedures and laws of evidence therefore has the potential to improve survivors’ experiences of the system.
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However, international research indicates these measures may have limited impact or unintended outcomes in practice. Such initiatives would require close monitoring if introduced.
Likewise, having uniform legislative definitions of sexual violence across jurisdictions could help to ensure access to (formal) justice is not contingent on where you happen to live. However, getting harmony across states could prove challenging.
It is also positive to see the commission adopt what’s called an intersectional framework. This approach recognises particular groups may be disproportionately impacted by sexual violence, and face unique or additional barriers to engaging with the criminal legal system. The needs of some groups, such as older women, are currently poorly responded to and require urgent attention.
What are the limits of the inquiry?
Many communities mentioned in the terms of reference are often unwilling or unable to engage with the formal legal system. It is unclear how the Australian Law Reform Commission intends to meaningfully engage with marginalised communities and ensure that these groups’ needs and perspectives are included.
For instance, an explicit role for Aboriginal and Torres Strait Islander victim-survivors and advocates is missing from the terms of reference outside of the consultation phase. A specific First Nations advisory group could boost engagement with the commission’s process so their perspectives could be better captured.
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The terms also limit the scope for alternative justice to be explored. A law reform inquiry inherently centres the criminal legal system as the main way sexual violence is dealt with. However, we know victim-survivors have a diverse range of justice needs, some of which are difficult to meet in the traditional system. Some forms of sexual violence, such as public sexual harassment, are challenging to respond to using the law.
Some scholars and activists advocate for a shift away from the criminal legal system. They argue the system is fundamentally harmful. We know, for example, sexual violence occurs within the system through practices like strip searching. It’s also perpetrated by criminal justice actors including police officers.
In addition, the terms of reference don’t include examining the persistent disbelief of victim-survivors by some within the criminal legal system.
Watch this space…
There is also the larger question about how the recommendations of the inquiry will be resourced and implemented in practice. While the commission appears to take a holistic approach, it remains to be seen whether this will have any bearing on future reforms to legislation, policy and practice.
The recent Victorian Law Reform Commission inquiry on sexual offences also included a focus on innovative justice responses. So far, more innovative recommendations have been sidelined by the government in favour of legislative reform.
Recent Australian inquiries have called for alternatives to criminal legal responses for Indigenous women’s safety. Despite a strong evidence base for community-controlled, restorative solutions, there has been little action on these recommendations to date.
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While the outcomes of the inquiry are outside the immediate control of the commission, it does raise concerns about the merits of continuing to tinker with a broken system. Despite many decades of law reform in jurisdictions such as Victoria, reporting rates remain low and attrition rates remain high.
Given the limits of criminal legal reform, we need to think bigger and more boldly. The inquiry is a good start, but for a comprehensive solution, we will need to be willing to question the role of a criminal justice system that has so far failed victim-survivors.
