Northern Territory sexual assault court outcomes spark calls for law reform


Key points:

  • Rape and Sexual Assault Research and Advocacy Group's Rachael Burgin says survivors need more support
  • She also says there is a need for "substantial reform to rape and consent law"
  • Dr Burgin and Criminal Lawyers Association of the NT's Marty Aust say there's a need for more services to prevent reoffending

Almost one in three people charged with sexual assault in the Northern Territory over the past decade had their case dismissed or were found not guilty, prompting fresh calls for an overhaul of the Territory's evidence and procedure rules.

Data obtained by the NT Courts show in the 10 years from 2008 to 2017, 1,417 people were charged with one or more sexual assault offences.

Of that number, 428 people had the main offence they were charged with dismissed or were found not guilty; 130 people had the main charge against them withdrawn by the prosecution; 265 people were imprisoned and 282 people had their sentence partially or fully suspended.

Another 296 people charged between 2008 and 2017 are still yet to have the main sexual assault charge against them finalised or proceeded with.

 

'Substantial reform' needed

Rape and Sexual Assault Research and Advocacy Group director of research and law lecturer Rachael Burgin said the fact that nearly one in 10 people charged had the main claim against them withdrawn indicted survivors needed more support.

"Survivors don't feel safe to pursue their case in court," she said.

"We are ignorant if we don't recognise that survivors are well aware of what their experience in court will be.

"They are well aware that it will be a difficult process — they are not willing to be absolutely torn to shreds on the stand."

Dr Burgin said there was a need for "substantial reform" to sexual assault and consent law in the Northern Territory, including reform to existing evidence law.

 

"We need reviews into how sexual history evidence is playing out in rape trials," she said.

"First and foremost we need an affirmative standard of sexual consent where there is an onus on the accused person to show — if they are arguing that they had a reasonable and honest belief in consent — they should be required to show what steps they took to make sure the other person is consenting."

In late 2018, the NSW State Government ordered a review into consent laws following the high-profile Luke Lazarus case.

In October 2019, the NSW Law Reform Commission released a set of draft proposals it says will strengthen the state's consent laws and bring them into line with Victoria and Tasmania.

The draft proposals include explicitly clarifying the meaning of consent, which would include that consent is not given if a person "does not do or say anything to communicate consent".

Dr Burgin wants to see a similar change to Northern Territory legislation.

But the president of the NT Criminal Lawyers Association Marty Aust expressed concerns about that call and said sex education and open discussions about consent were more important than "overly prescriptive legislation".

"Consent at times may be a complicated concept, depending on factual scenarios and evidence in a particular case, at other times for the same reasons it may be a very simple concept," Mr Aust said.

"The presumption of innocence and the Crown bearing the onus of proving beyond reasonable doubt that an accused person was in fact aware or reckless about whether a complainant was not consenting to sexual conduct is a crucial aspect of our criminal justice system."

Prison part of the picture

Dr Burgin also said prison should not be the only option for people found guilty of a sexual assault offence and she wanted a bigger focus on what survivors wanted from the legal process.

"We need to think beyond just the traditional criminal trial, we need a suite of options that are building towards a prevention of further offending," she said.

"These people will be released from prison — at the moment we don't do much, if anything, to make sure they don't offend again."

Mr Aust agreed there were not enough support services to help offenders after they had served their time.

"We don't really have really good therapeutic supports or programs for sex offenders, which means they don't actually seem to receive rehabilitation or treatment," he said.

"There are massive waiting lists for serious intensive violent offender programs or sex offender programs. We need more, far more in the prisons."

 

'Difficult matters'

In the NT, if someone is found guilty of a sexual offence, a conviction must be recorded and the offender must serve a term of actual imprisonment, which can be partially suspended.

But according to the dataset, 36 people received a fully suspended imprisonment in the 10-year period.

This means the person was on remand while waiting for their case to be heard, and when they were sentenced it was fully suspended, meaning that they did not have to go back to prison. They did however serve a term of real imprisonment.

 

Mr Aust said because data was recorded by person — and not per charge — it showed only part of the full story.

Some people could be facing court for a number of sexual offences, Mr Aust explained, but as only the result of the principal charge was recorded the true figure of the number of charges which resulted in imprisonment could be much higher.

"These are difficult matters and we need to ensure that justice is done where it can be," he said.

"And we also have to understand that part of the reason why it's difficult to prosecute these matters is because they often happen in circumstances where there is limited opportunity for people to be witnesses to what actually occurred.

"The court process can be very difficult, and nasty and scary."

Mr Aust said considering how difficult it was to prosecute sexual offences, the number of people who had been found guilty in the Northern Territory over the past decade and served time in prison was quite high.

"You have to be able to prove it beyond reasonable doubt and that's a high bar and it needs to be a high bar," he said.

"Because the last thing we want are for people who are innocent being sent to jail."

Mr Aust said the NT had an "imperfect system", but there had been some positive change in how survivors were being treated in courts.

NTG flags upcoming change

Northern Territory Attorney-General Natasha Fyles was asked if her government was considering any changes to evidence law in the NT regarding sexual assault cases or a review into how sexual history evidence plays out in sexual assault trials and the NT's sexual assault sentencing laws.

Ms Fyles was also asked if the department would consider changes to the definition of consent in its sexual assault laws — similar to the review ordered in NSW in 2019.

 

She flagged change could soon be on the horizon.

"Off the back of the Royal Commission into Institutional Responses to Child Sexual Abuse we are considering some reform from the recommendations in the Criminal Justice Report which will be further developed for future legislative reform," Ms Fyles said.

To support sexual and domestic violence victims in the NT, Ms Fyles said the Gunner Government had strengthened the existing Charter of Victims' Rights, brought in the Evidence and Other Legislation Bill, and would soon bring in the Sexual Offences (Evidence and Procedures) Bill.

During a sexual assault trial in the Northern Territory victims can use the Witness Assistance Service, Ms Fyles explained, and could also access other support services.

 

"There are also sexual assault referral centres, which form part of the Department of Health," she said.

"Further, the Evidence and Other Legislation Bill was passed just last month.

"Once enacted, the bill allows for the expanded use of video conference in court and enhances protections for vulnerable witnesses in sexual and domestic violence proceedings."

To help reduce the risk of re-offending, Ms Fyles said the NT's Sex Offender Treatment Programs had "proven effective" in reducing re-offending for male sex offenders who are serving prison time.

Sexual offenders classified as "low- and moderate-low risk" can access the Responsibility, Safety, Victims, Plans intervention program, she added.

(Source)


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