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Where am I now? Lawlink > Violence Against Women Specialist Unit > News and Events > Sexual Assault Victims and the Criminal Justice System
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Sexual Assault Victims and the Criminal Justice System
The Violence Against Women Specialist Unit interviewed Dr Denise Lievore from the Crime and Justice Research Centre Wellington about the key factors that influence a victim’s decision making in relation to the criminal justice system.
What are some of the factors that influence a victim’s decision making in relation to reporting the matter to the police?
What are the critical times for women dealing with the criminal justice system?
Why do sexual assault matters drop out of the criminal system?
What can help women when negotiating the criminal justice system? i.e what can friends, family and workers do to support victims of sexual assault?
Are there any key things that a victim can keep in mind that might make a difference to her decision to continue engaging with the criminal justice system?
What are some of the factors that influence a victim’s decision making in relation to reporting the matter to the police?
Reporting decisions are shaped by a complex interplay of overlapping factors. Victims’ assessments of the likely responses and protections offered by formal and informal support sources are crucial in helping them to determine whether to report to police.
Some important factors include the characteristics of the incident, such as the relationship to the offender; the personal consequences of reporting; and beliefs about the legal system.
Women from Indigenous and NESB communities face additional issues, such as the consequences of reporting for their community, or the loss of personal and family honour.
Disclosures to people in women’s social networks may either encourage or deter reporting, depending on the reactions of the recipients of disclosures. Some women prefer to use informal strategies to deal with the aftermath of sexual assault, while others believe it is their public duty to report.
The question of invoking the criminal law is only one of a range of decisions faced by women whose lives have been completely disrupted. It is not necessarily the most important one from the victim’s perspective.
What are the critical times for women dealing with the criminal justice system?
Individual women have different capacities to negotiate the criminal justice system. Their needs are likely to vary in intensity and nature over time and across situations, such as immediately post-assault, or just prior to the first court appearance.
In crisis situations, where a report has been made to police immediately following the assault, women are likely to be in shock, may be unable to think clearly, or may not fully understand the implications of their choices.
At this time their personal needs, such as the need to feel safe, may conflict with the needs of the police investigation, such as collecting forensic evidence. Some women experience revictimisation through attitudes such as disbelief and victim-blaming, which they may encounter from a range of criminal justice personnel at different times in the process.
Critical times include police decisions to charge or not charge a suspect and prosecutors’ decisions to proceed with or discontinue prosecution. Other critical times are related to court appearances, when women are confronted by media attention, the prospect of facing the offender, reliving the sexual assault, cross-examination, potentially being discredited in public and not guilty verdicts.
Why do sexual assault matters drop out of the criminal system?
Given the limited resources of the criminal justice system, reported sexual offences are not automatically subject to prosecution. Cases that enter the criminal justice system are continually reassessed by various decision-makers to determine which cases should be prosecuted in the public interest. These assessments are impacted by legal and extralegal factors relating to the victim, the defendant and the case.
Given the nature of sexual assault and the fact that most cases come down to word against word, lack of evidence is the primary reason cited by police and prosecution agencies for not charging suspects or not proceeding to prosecution. Victim credibility is an important consideration in assessing the prospects of conviction in any criminal matter.
From a legal perspective, credibility is not the same as believability and prosecutors may take into account the way a jury is likely to view a woman in assessing her credibility. This is a contentious issue in sexual assault cases, given social stereotypes around ‘real rape’ and ‘genuine’ victims. Some cases drop out of the system when victims are unwilling to proceed.
Victims’ decisions are shaped by a range of social and personal factors, including lengthy delays in the process and wanting to put the matter behind them, threats from the offender or his supporters, lack of social support, and encouragement to withdraw from legal officials. Victim withdrawal from the criminal justice process does not mean that the assault did not occur.
What can help women when negotiating the criminal justice system? i.e what can friends, family and workers do to support victims of sexual assault?
There are a small number of crucial attitudes and behaviours that can support women who are involved in the criminal justice system.
- Belief: Through words and actions, show that you believe their account of what happened. Through verbal and non-verbal communication, present an attitude that is affirming and respectful. Let them know that they are not on trial.
- Listen and understand: Women’s needs change over time and they are in the best position to determine their needs and the risks they are willing to take. Ask them about the supports they need in the current situation and discuss ways of addressing those needs, including ways that affirm their own strengths and resources. Listening and responding in a non-judgemental way promotes trust and confidence and empowers women to consider options and take actions that will enhance their long-term prospects.
- Communication and information: Feeling informed and in control is very important to victims. Information about their options and the possible outcomes of various courses of action underpins women’s capacity to make choices and consent to processes that are appropriate to their own circumstances. Knowing what to expect and being prepared can help to reduce trauma. Helping survivors make informed decisions may have the added benefit of promoting satisfaction with the criminal justice process, whatever the case outcome.
- Cooperate and collaborate with other support systems. Women who have contact with the criminal justice system are distressed by the experience that ‘the legal side’ takes precedence over ‘the person’. Women’s resolve and belief in themselves can be helped by knowing that police and prosecution staff, sexual assault counsellors, families, friends and other support sources, regard each other as allies who will support them whatever they face.
- Act on women’s needs: Show that you take them seriously by responding quickly and appropriately to their concerns. Work at the women’s own pace and help them to take control of their recovery process rather than taking control of their decisions.
Are there any key things that a victim can keep in mind that might make a difference to her decision to continue engaging with the criminal justice system?
Going through the justice process is never easy and it is important not to do it alone. Once your case enters the system, it becomes a matter of the public interest: you become a witness to a sexual assault, rather than a victim of sexual assault.
It is crucial to find ways of focusing on and meeting your needs as both victim and witness. Sexual assault counsellors can help whether or not you have access to a supportive personal network. They can give you information that you need to understand your options and rights, deal with criminal justice personnel, or understand how the system works. As part of your support network, they can help you to think about your reasons for engaging with the criminal justice process and what you need to promote your wellbeing.
There is no ‘right’ way of dealing with sexual assault. For some women, there are benefits to be gained from continuing with the system, other than wanting the offender convicted and punished. Other women come to realise that their needs would be best served by disengaging from the process. By reaching out for help and information, you can regain some sense of control over your life and make decisions that are right for you.
The NSW Strategy to Reduce Violence Against Women is part of the Criminal Justice Sexual Offences Taskforce which has recently conducted a state-wide consultation with survivors of sexual assault and service providers.
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