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Date: April 19, 2024 Fri
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1 results foundAuthor: Royal Commission into Institutional Responses to Child Sexual Abuse Title: Consultation Paper: Criminal Justice Summary: The importance of a criminal justice response Criminal justice for victims In Chapter 2, we discuss the importance of a criminal justice response for victims and survivors of institutional child sexual abuse. Criminal justice involves the interests of the entire community in the detection and punishment of crime in general, in addition to the personal interests of the victim or survivor of the particular crime. Survivors have told us of a variety of responses they have sought from the criminal justice system, and they have expressed a range of views on what they would have regarded as 'justice' for a criminal justice response. We recognise that a criminal justice response is important to survivors not only in seeking 'justice' for them personally but also in encouraging reporting of child sexual abuse and preventing child sexual abuse in the future. Past and future criminal justice responses In private sessions and in personal submissions in response to Issues Paper No 8 – Experiences of police and prosecution responses (Issues Paper 8), we have heard accounts from survivors of their experiences with police, particularly from the 1940s onwards, and of their experiences with prosecutions from the 1970s and 1980s onwards. Survivors have told us of both positive and negative experiences with police and prosecution responses. In general terms, many of the negative experiences we have been told about were experienced in earlier periods of time through to the early 2000s. In our policy work on criminal justice responses, our main focus must be on understanding the contemporary response of the criminal justice system to institutional child sexual abuse and on identifying how it can be made more effective. Criminal justice and institutional child sexual abuse The criminal justice system is often seen as not being effective in responding to crimes of sexual violence, including adult sexual assault and child sexual abuse, both institutional and noninstitutional. Research identifies the following features of the criminal justice system's treatment of these crimes: - lower reporting rates - higher attrition rates - lower charging and prosecution rates - fewer guilty pleas - fewer convictions. There are also features of institutional child sexual abuse cases that may affect the ability of the criminal justice system to respond effectively to these cases. These include: - 'word against word' cases, where there are no eyewitnesses to the abuse and no medical or scientific evidence - the importance of the complainant being willing to proceed, particularly where their evidence is the only direct evidence of the abuse - lengthy delays, where many survivors take years, even decades, to disclose their abuse. This can make investigation and prosecution more difficult - particularly vulnerable victims may be involved, including young children or people with disability. There are also many myths and misconceptions about sexual offences, including child sexual abuse, that have affected the criminal justice system's responses to child sexual abuse prosecutions. The myths and misconceptions have influenced the law and the attitudes jury members bring to their decision-making. The following myths and misconceptions have been particularly prominent in child sexual abuse cases: - women and children make up stories of sexual assault - a victim of sexual abuse will cry for help and attempt to escape their abuser – that is, there will be no delay in reporting abuse and a 'real' victim will raise a 'hue and cry' as soon as they are abused - a victim of sexual abuse will avoid the abuser – that is, a 'real' victim will not return to the abuser or spend time with them or have mixed feelings about them - sexual assault, including child sexual assault, can be detected by a medical examination – that is, there will be medical evidence of the abuse in the case of 'real' victims. Operation of the criminal justice system There has been much academic debate about what might be said to be the purposes of the criminal justice system. In addition to the purpose of punishing the particular offender, the criminal justice system also seeks to reduce crime by deterring others from offending. The criminal justice systems in Australian jurisdictions function through an 'adversarial' system of justice, where the prosecution (representing the Crown) and the defence (representing the accused) each put forward their case and any evidence in relation to whether the act was committed, by whom, and with what intent. Theoretically, this 'contest between the parties' is designed to produce the most compelling argument as to what the truth of the matter is. Given that the investigation and prosecution of criminal matters is undertaken by the state, there is seen to be an imbalance between the prosecution and the accused. In recognition of this imbalance, a number of principles have emerged through the development of the common law to ensure that trials are conducted fairly. These include the following: - The prosecution must prove, beyond reasonable doubt, that the accused committed the crime or crimes charged. The corollary of this principle is that the accused is presumed to be innocent until proven guilty. - The accused has a right to silence. This means that the accused cannot be compelled to give evidence or confess guilt. - The criminal trial should be conducted without unreasonable delay. - The accused has the right to examine witnesses in order to test the credibility of the witness and their testimony. - The prosecution is obliged to act independently and impartially and to conduct the case fairly. - If an accused is charged with a serious offence and lacks the financial means to engage legal representation, he or she should be provided with a lawyer. Many survivors have told us that they feel that the criminal justice system is weighted in favour of the accused. Some survivors who have participated as complainants in prosecutions have told us that they felt almost incidental to the criminal justice system and that they had little control over matters that were very important to them. Recognition of victims has increased over the last 50 years. States and territories introduced victims' compensation schemes from 1967 onwards. In the 1990s, emphasis shifted towards providing greater support services for victims. Victim impact statements were also introduced, and Director of Public Prosecutions (DPP) guidelines required prosecutors to consult with victims. In 2013, Australia's Attorneys-General endorsed the National Framework for Rights and Services for Victims of Crime. Other responses to institutional child sexual abuse A number of stakeholders have argued that the Royal Commission should consider the use of restorative justice approaches (involving a range of processes to address the harm caused to victims) in connection with, or instead of, traditional criminal justice responses to institutional child sexual abuse. It appears that restorative justice may not be available for or of assistance to many survivors of institutional child sexual abuse, including: - because of the power dynamics and seriousness of institutional child sexual abuse offending, restorative justice approaches may only be suitable in only a small number of these cases. - many survivors do not wish to seek a restorative justice outcome with the perpetrator of the abuse - given the frequent delay before reporting, many offenders will be unavailable or unwilling to participate in restorative justice approaches. The Royal Commission provided for elements of restorative justice approaches in institutional child sexual abuse through the 'direct personal response' component of redress. The recommendations we made in our Report on redress and civil litigation (2015) are not intended as an alternative to criminal justice for survivors. Ideally, victims and survivors of institutional child sexual abuse should have access to justice through both criminal justice responses and redress and civil litigation. Some survivors have also told us that they found real benefit in state and territory statutory victims of crime compensation schemes because the decisions made by the relevant tribunals or administrators gave them official recognition of the crimes committed against them. Our approach to criminal justice reforms It must be recognised that the criminal justice system is unlikely ever to provide an easy or straightforward experience for a complainant of institutional child sexual abuse. However, we consider it important that survivors seek and obtain a criminal justice response to any child sexual abuse in an institutional context in order to: - punish the offender for their wrongdoing and recognise the harm done to the victim - identify and condemn the abuse as a crime against the victim and the broader community - emphasise that abuse is not just a private matter between the perpetrator and the victim - increase awareness of the occurrence of child sexual abuse through the reporting of charges, prosecutions and convictions - deter further child sexual abuse, including through the increased risk of discovery and detection. We also consider that seeking a criminal justice response to institutional child sexual abuse is an important way of increasing institutions', governments' and the community's knowledge and awareness not only that such abuse happens but also of the circumstances in which it happens. We consider that all victims and survivors should be encouraged and supported to seek a criminal justice response and that the criminal justice system should not discourage victims and survivors from seeking a criminal justice response through reporting to police. We are satisfied that any necessary reforms should be made to ensure that: - criminal justice responses are available for victims and survivors who are able to seek them - victims and survivors are supported in seeking criminal justice responses - the criminal justice system operates in the interests of seeking justice for society, including the complainant and the accused. Regulatory responses to child sexual abuse However, it is unrealistic to expect that all true allegations of institutional child sexual abuse will result in a criminal conviction of the accused, even if the criminal justice system is reformed to achieve these objectives. We recognise the importance of ensuring that regulatory responses focusing on child protection can interact effectively with criminal justice responses, particularly in cases where there is no criminal conviction. These regulatory responses include reportable conduct schemes, Working with Children Check schemes and industry regulation. Details: Sydney, New South Wales, Australia: Royal Commission into Institutional Responses to Child Sexual Abuse, 2016. 709p. Source: Internet Resource: Accessed January 20, 2019 at: https://www.childabuseroyalcommission.gov.au/consultation-papers Year: 2016 Country: Australia URL: https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/Consultation%20Paper%20-%20Criminal%20justice.pdf Shelf Number: 154273 Keywords: AbuserAustraliaChild AbuseChild Sexual AbuseDirector of Public ProsecutionsInstitutional ResponseNational Framework for Rights and Services for VicRestorative JusticeSexual AssaultSexual ViolenceSurvivorsTestimonyVictim |