Published on 12 November 2017 at 7:21PM
The discretionary decision making of victims in determining whether to report a crime is subject to the influence of numerous personal barriers as well as barriers presented by the justice system.[1] The precise source and impact of these influences varies according to the nature of the crime, the cultural background of the victim, their age, mental capacity and gender. In particular, victims of domestic violence and sexual assault offences are often influenced by widespread community attitudes, pressure from the offender, fear of being blamed and overriding public interest considerations. The principal aim and effect of these influences is to deter victims of crime from engaging with the criminal justice process and ultimately prevent this process from properly serving the community.
I Community Attitudes Prevailing community attitudes and social stigmas pressure victims of domestic violence and sexual assault to refrain from reporting crime. Research indicates that widespread myths and stereotypes about the circumstances that constitute ‘real rape’ or a ‘real victim’ mean that victims of sexual assault are more likely to exercise their discretion to report the offence if it involved the use of a weapon, multiple offenders and serious physical injury in addition to the assault itself.[2] Similarly, in the context of domestic violence offences, victims are more willing to exercise their discretion to report the crime if they have an Apprehended Violence Order (‘AVO’) against the assailant, if they experienced property damage, the abuse was physical or sexual, it resulted in injury, they felt their children were at risk or they had previously reported domestic violence to the police. [3] Moreover, in the context of domestic crimes and some sexual assault offences, the intimate nature of the relationship between the victim and offender often controls the victim’s choice to report the crime due to fear of undesired ramifications including arrest of the offender, revenge by the offender, shame and embarrassment or social and familial condemnation and alienation.[4] The influence of these widespread prejudices and stigmas are entirely inappropriate and disruptive to the criminal justice process as they amplify the victim’s perceptions of personal shame and blame, allow perpetrators to continue their abuse as well as dissuade victims from disclosing the offence.[5]
The fear of being blamed is a pivotal influence in the discretionary decision making of victims of sexual assault and domestic violence. The source of this fear stems not only from community attitudes but also from the reflection of these attitudes in the criminal justice system. The murder of Leigh Leigh is a pivotal example of the potential for courts to perpetuate existing social stigmas. In that case, Wood J emphasized that the party where Leigh Leigh was sexually assaulted and murdered should not ‘have been permitted to go ahead without proper parental supervision’.[6] In this sense, Wood J effectively limited the accountability of the offenders by implicitly arguing that without the lack of parental supervision, Leigh Leigh’s death would not have occurred as the judgment of the offenders would not have been affected by underage drinking, drug use and sexual promiscuity.[7] These statements by the court coupled with media representations of Leigh Leigh effectively operate to discourage future victims from exercising their discretion to report crime for fear that they will be blamed for the actions of the accused. These fears of victim blaming have been addressed by s 293 of the Criminal Procedure Act 1986 (NSW), which explicitly prevents courts from admitting evidence relating to the victim’s sexual experience if it is not integral to an aspect of the case.[8] Moreover, evidence pertaining to the ‘sexual reputation’ of the victim is inadmissible.[9] However these provisions are not entirely effective, as guidance relating to the precise meaning of the term ‘sexual experience’ is limited and research shows that ‘sexual experience’ can often be confused with ‘sexual reputation’.[10] Thus, victim blaming continues to prevent the administration of criminal justice by diminishing the accountability of offenders, undermining the credibility of victims and inevitably dissuading victims from reporting the offence.
II Public Interest The discretionary decision of victims to report a crime is also affected by overriding public interest factors. Victims of domestic violence and sexual assault often perceive that the police and courts will blame them for the offence and fail to believe their accusations because ‘legal authorities are more concerned with issues of public approval and the avoidance of losing the case, than with the needs of the victim’.[11]This perception is somewhat well founded as prosecutorial guidelines reflect that the public interest is paramount and views of victims will not be determinative in making prosecutorial decisions as the general public interest ultimately outweighs the victims’ wishes.[12] Thus, a victim’s discretion to discontinue proceedings is controlled by the overriding public interest, especially where additional evidence implicates the offender, the offender has a history of similar offending or the crime is particularly grave so as to require the continuation of proceedings in the public interest.[13] Promoting public interest considerations is certainly crucial to ensuring community protection. However, the dominance of public interest concerns in the criminal justice system may have an indirect consequence of controlling a victim’s discretion to report a crime.
Victims may be discouraged to report a crime where precedents have established that the public interest will outweigh their own personal rights. For example, the public interest may require the lengthy imprisonment of victims of domestic violence who initially make allegations of violence against their partner and then later retract the substance of their earlier statements to police.[14] The imprisonment of women pursuant to ss 314 and 547B of the Crimes Act 1900 (NSW) for false accusation and public mischief offences inevitably has the effect of deterring other victims of crime from exercising their discretion to report.[15] The criminal justice process would be able to serve the community more sufficiently if such charges were considered unlikely to be in the public interest where the defendant is a victim of violence.[16] This is exemplified in the enactment of legislation in New South Wales that expressly prevents victims from being persecuted as ‘aiding, abetting, counselling or procuring’ the breach of orders made to protect them.[17] However, victims remain vulnerable to the possibility of becoming subject to AVOs against them due to, for example, causing injury to the offender during self-defence.[18] Thus, the overriding public interest to protect the community from harm and uphold the rule of law largely controls a victim’s discretion to report a crime due to fears of a multiplicity of potential legal ramifications.
In conclusion, a victim’s discretionary decision to report a crime is subject to the influence of widespread community beliefs that have historically pervaded all aspects of the criminal justice process from initial police investigations to the trial. The choice of victims to report an offence is also controlled by overriding public interest considerations that often effectively prioritise community protection over victim’s rights. The aim and effect of these influences is to diminish the accountability of the offender and distort the administration of criminal justice by discouraging the reporting of crime.
[1] Denise Lievore, Australian Institute of Criminology, Non-reporting and hidden recording of sexual assault in Australia (2003) 7. [2] Kristin Carbone-Lopez, Lee Ann Slocum and Candace Kruttschnitt, ‘“Police Wouldn’t Give You No Help”: Female Offenders on Reporting Sexual Assault to Police’ (2016) 22(3) Violence Against Women 366, 368. [3] Emma Birdsey and Lucy Snowball, ‘Reporting Violence to Police: A survey of victims attending domestic violence services’ (Issue Paper No 91, NSW Bureau of Crime Statistics and Research, October 2013) 7. [4] Ibid; Lievore, above n 52. [5] Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 16. [6] R v Matthew Grant Webster (Unreported, Supreme Court of New South Wales, Wood J, 24 October 1990) 10. [7] Ibid; Jonathon Morrow and Mehra San Roque, ‘In Her Death She Remains as the Limit of the System’ (1996) 18 Sydney Law Review 474. [8] See also: Australian Law Reform Commission, Family Violence – A National Legal Response, Report No 114 (2010) vol 1, 1237-1253. [9] Criminal Procedure Act 1986 (NSW) s 239(2). [10] Australian Law Reform Commission, above n 59, 1239-1240. [11] Kristina Murphy and Julie Barkworth, ‘Victim Willingness to Report Crime to Police: Does Procedural Justice or Outcome Matter Most?’ (2014) 9(2) An International Journal of Evidence-based Research, Policy, and Practice 178, 179. [12] Nicholas Cowdery, Office of the Director of Public Prosecutions for New South Wales, ODPP Guidelines (2007) 33-34 [19]. [13] Ibid. [14] Natasha Robinson, ‘Rough Justice for Victims Too Scared to Testify Against Abusive Partners’, The Australian (online), 4 May 2013 < http://www.theaustralian.com.au/national-affairs/indigenous/rough-justice-for-victims-too-scared-to-testify-against-abusive-partners/news-story/ca9630a763b0a7173391c551a3602810>. [15] Ibid. [16] See for example: Crown Prosecution Service, Guidance Perverting the Course of Justice – Charging in Cases Involving Rape and/or Domestic Violence Allegations (July 2011) [29]. [17] Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14(7); contrast: Keane v Police (1997) 69 SASR 481, 484. [18] Rachel Olding and Nick Ralston, ‘Domestic Violence: Police Often Blame Victims’, The Sydney Morning Herald (online), 10 March 2014 <http://www.smh.com.au/nsw/domestic-violence-police-often-blame-victims-20140309-34fe7.html>
REFERENCE LIST
A Articles/Books/Reports Australian Law Reform Commission, Family Violence – A National Legal Response, Report No 114 (2010) Birdsey, Emma and Lucy Snowball, ‘Reporting Violence to Police: A survey of victims attending domestic violence services’ (Issue Paper No 91, NSW Bureau of Crime Statistics and Research, October 2013) Carbone-Lopez, Kristin, Slocum, Lee Ann and Candace Kruttschnitt, ‘“Police Wouldn’t Give You No Help”: Female Offenders on Reporting Sexual Assault to Police’ (2016) 22(3) Violence Against Women 366 Cashmore, J, Taylor, A, Shackel, R and Patrick Parkinson, Royal Commission into Institutional Responses to Child Sexual Abuse, The impact of delayed reporting on the prosecution and outcomes of child sexual abuse cases (2016) Cossins, Annie, National Child Sexual Assault Reform Committee, Alternative Models for Prosecuting Child Sex Offences in Australia (2010) Donnelly, Hugh, ‘Delay and the credibility of complainants in sexual assault proceedings’ (2007) 19(3) Judicial Officer’s Bulletin 17 Lievore, Denise, Australian Institute of Criminology, No longer silent: A study of women’s help seeking decisions and service responses to sexual assault (2005) Lievore, Denise, Australian Institute of Criminology, Non-reporting and hidden recording of sexual assault in Australia (2003) Morrow, Jonathon and Mehra San Roque, ‘In Her Death She Remains as the Limit of the System’ (1996) 18 Sydney Law Review 474 Murphy, Kristina and Julie Barkworth, ‘Victim Willingness to Report Crime to Police: Does Procedural Justice or Outcome Matter Most?’ (2014) 9(2) An International Journal of Evidence-based Research, Policy, and Practice 178 Olding, Rachel and Nick Ralston, ‘Domestic Violence: Police Often Blame Victims’, The Sydney Morning Herald (online), 10 March 2014 <http://www.smh.com.au/nsw/domestic-violence-police-often-blame-victims-20140309-34fe7.html> Robinson, Natasha, ‘Rough Justice for Victims Too Scared to Testify Against Abusive Partners’, The Australian (online), 4 May 2013 <http://www.theaustralian.com.au/national-affairs/indigenous/rough-justice-for-victims-too-scared-to-testify-against-abusive-partners/news-story/ca9630a763b0a7173391c551a3602810> Willis, Matthew, ‘Non-disclosure of violence in Australian Indigenous Communities’ (Trends and Issues in Crime and Criminal Justice No 405, Australian Institute of Criminology, 2011)
B Cases Keane v Police (1997) 69 SASR 481 R v Matthew Grant Webster (Unreported, Supreme Court of New South Wales, Wood J, 24 October 1990)
C Legislation Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Criminal Procedure Act 1986 (NSW)
D Other
Cowdery, Nicholas, Office of the Director of Public Prosecutions for New South Wales, ODPP Guidelines (2007)
Crown Prosecution Service, Guidance Perverting the Course of Justice – Charging in Cases Involving Rape and/or Domestic Violence Allegations (July 2011)
Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016)
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