Play Nice Is rape even a crime in this country?

[DemonTim]

Sadly it's not proceeding - they join the ~98.5% of rapists who are never convicted in Victoria (as per figures in article linked in OP).

Isn't the mother pushing for reforms so it can proceed?

 

[Mofra]

Isn't the mother pushing for reforms so it can proceed?

They're pushing for (overdue) reforms generally but even then the victim may be too traumatized to testify - which is a major issue, especially with underage victims. The cross examination techniques from criminal lawyers are horrific in some circumstances (for the few cases that actually get to trial).

 

[cartwright]

They're pushing for (overdue) reforms generally but even then the victim may be too traumatized to testify - which is a major issue, especially with underage victims. The cross examination techniques from criminal lawyers are horrific in some circumstances (for the few cases that actually get to trial).

This is a major, major block to attempting to bring charges against someone. The women I know who have not reported their crime, have said the idea of their entire character being ripped apart, is too much in a time where they're still healing. I can't really stress enough how much of a deterrent this is.

In this case, it was a young woman. Even if its an older person, this is still very traumatic.

The allegations need to be heard, and the only way I can see this happening is introducing something like the UK are.. otherwise, animals like those in this case will continue to be let off.

 

[Donners]

Isn't the mother pushing for reforms so it can proceed?

Oh yes, and The Age has helpfully published an editorial yesterday and comment today with proposed reforms.

The problem? Several of them are already in place, and have been for years.

By floating them as proposed reforms, with the implication that they do not already exist, their outright misinformation - reported in the context of two people who did not go through cross-examination, with the implication that the absence of such protections was the reason - is a great way to deter potential complainants.

Such is the standard of reporting on legal matters in this state.

Why can't charges proceed based on sex with a minor in which case rape does not even have to be proven.

Belief in age is a defence.

 

[DemonTim]

Oh yes, and The Age has helpfully published an editorial yesterday and comment today with proposed reforms.

The problem? Several of them are already in place, and have been for years.

By floating them as proposed reforms, with the implication that they do not already exist, their outright misinformation - coupled with the reported distress of two people who have never actually been through cross-examination - is a great way to deter potential complainants.

Such is the standard of reporting on legal matters in this state.



Belief in age is a defence.

Yes how dare an alleged rape victim, be distressed by discussing the event, when the defense hasn't even had the chance to tell us all how promiscuous she was and how she likely consented to 3 men at once.

 

[Pessimistic]

Yes how dare an alleged rape victim, be distressed by discussing the event, when the defense hasn't even had the chance to tell us all how promiscuous she was and how she likely consented to 3 men at once.

Not knowing full details. I'd doesn't sound like she even consented to being taken against her will

 

[Donners]

Yes how dare an alleged rape victim, be distressed by discussing the event, when the defense hasn't even had the chance to tell us all how promiscuous she was and how she likely consented to 3 men at once.

She's entirely entitled to be distressed by the prospect and rightly so. Hardly the first to feel that way about it. The criticism is of the way the paper is presenting it, not her position.

They are reporting it coupled with misinformation - the suggestion being that certain protections could have assisted her to give evidence, but they were not available.

Several of them were indeed available. Unfortunately they weren't enough to ease her concerns, but they could (and do) assist others.

 

[DemonTim]

By floating them as proposed reforms, with the implication that they do not already exist, their outright misinformation - coupled with the reported distress of two people who have never actually been through cross-examination - is a great way to deter potential complainants.

She's entirely entitled to be distressed by the prospect and rightly so. Hardly the first to feel that way about it. The criticism is of the way the paper is presenting it, not her position.

They are reporting it coupled with misinformation - the suggestion being that certain protections could have assisted her to give evidence, but they were not available.

Several of them were indeed available. Unfortunately they weren't enough to ease her concerns, but they could (and do) assist others.

I took the above to be mocking the distress of someone who hasn't been cross examined.

 

[Donners]

I took the above to be mocking the distress of someone who hasn't been cross examined.

Certainly not. I shall edit it in case it is not clear.

 

[Run n Spread]

She's entirely entitled to be distressed by the prospect and rightly so. Hardly the first to feel that way about it. The criticism is of the way the paper is presenting it, not her position.

They are reporting it coupled with misinformation - the suggestion being that certain protections could have assisted her to give evidence, but they were not available.

Several of them were indeed available. Unfortunately they weren't enough to ease her concerns, but they could (and do) assist others.

Harrowing case. Shocking.

But why are The Age suddenly Vic Pols go to PR team? Can't see this helping.

What can be proposed short of dumping the presumption of innocence which is a corner stone of our society?

In this case were charges laid and dropped or not laid at all?

If the former wouldn't Double J come in?

 

[Pessimistic]

If serial rapists (alleged obviously) are getting off because they pick a target whos going to be easy to challenge in court (for whatever reason) then if that can be proven, shouldnt the punishment be tougher? its a cynical form of premeditation

 

[Donners]

But why are The Age suddenly Vic Pols go to PR team? Can't see this helping.

It's coming from the family, not police. If it were the latter, they would have picked issues with broader implications, and wouldn't be getting The Age to suggest stuff which has been in for a decade already.

What can be proposed short of dumping the presumption of innocence which is a corner stone of our society?

In this case, not a lot. In general, plenty - albeit a fair bit would be just better enforcement of what already exists.

In this case were charges laid and dropped or not laid at all?

If the former wouldn't Double J come in?

The former, and no. A discontinuance is not an acquittal.

 

[TheWoodenSlug]

In this case, not a lot. In general, plenty - albeit a fair bit would be just better enforcement of what already exists.

You seem pretty knowledgeable in this area (lawyer, I assume?) - would you mind expanding on this a little? What do you think could/should be done, and which existing laws improved?

Law is not my forte at all so I can't really offer much to the discussion, but given the incredibly low conviction rate I think things need to change somewhere.

 

[Donners]

You seem pretty knowledgeable in this area (lawyer, I assume?) - would you mind expanding on this a little? What do you think could/should be done, and which existing laws improved?

Law is not my forte at all so I can't really offer much to the discussion, but given the incredibly low conviction rate I think things need to change somewhere.

Worked in this particular area for over a decade, so I hope I'd know a bit.

I wouldn't look at it as needing to improve the conviction rate.

A lot of misleading numbers get thrown up about that because they involve varied definitions of what is a sexual offence (often not according with the legal definition) and are heavily subjective. If you look at it for those who get charged, last I saw the conviction rate in Vic for sex offences was around 70% - half of matters resolve to pleas, and of those which go to trial, around half result in at least one guilty verdict. Others are withdrawn/discontinued before that point. That's about right for matters which are often oath against oath given the burden and standard of proof.

It's more about improving the process to ensure it works more efficiently (which is in everyone's interest) and that people are more willing to go through it.

It's too big and involved a discussion to go into in much detail; suffice to say the Royal Commission is soon going to produce a several-hundred page report with suggestions which are mostly focusing on just one area of sexual offences.

Just a few points off the top of my head:

1) Greater use of restorative justice as an alternative to court proceedings. It's only just starting to come in here now, but has worked elsewhere. Many people just want an acknowledgment of what happened, which the court system is not designed or required for.

2) Overhaul sex offender registration to allow for more discretion as to whether youthful offenders are registered. That's a big sticking point for resolution in many matters.

3) Make it easier to run multiple similar allegations in the same trial. Victoria is ludicrously strict on this, which makes trials completely artificial and far longer than necessary. The High Court case of Hughes may resolve this in the next month or so, but it's far too late. In general, stop mollycoddling juries.

4) Adapt the system for cognitively impaired complainants, who are often preyed upon but cannot give evidence effectively. Intermediaries have been introduced in some places, and hopefully Vic will follow suit.

5) Restrict media coverage of the details of offences, particularly in the early stages. The case which sparked this discussion is a prime example. Open justice is important, but the details do not need to be spashed across the media to be latched onto by vigilantes, wannabe sleuths and those who just take a prurient interest in such things (plus they're often misleading or flat out wrong).

6) Educate the public more about sexual offences. Most offenders aren't strangers lurking in a dark alley, most victims do not scream, resist, auffer physical injuries or tell someone contemporaneously. There are many myths and misconceptions around.

7) Get judges to actually enforce the provisions which already exist, particularly relating to cross-examination. The Court of Appeal has finally sent a message about poor cross-examination of children this month, so hopefully that will sink in.

Oh, and a truckload more money for more judges, courts, prosecutors, legal aid, police, training, etc.

 

[TheWoodenSlug]

Worked in this particular area for over a decade, so I hope I'd know a bit.

I wouldn't look at it as needing to improve the conviction rate.

A lot of misleading numbers get thrown up about that because they involve varied definitions of what is a sexual offence (often not according with the legal definition) and are heavily subjective. If you look at it for those who get charged, last I saw the conviction rate in Vic for sex offences was around 70% - half of matters resolve to pleas, and of those which go to trial, around half result in at least one guilty verdict. Others are withdrawn/discontinued before that point. That's about right for matters which are often oath against oath given the burden and standard of proof.

It's more about improving the process to ensure it works more efficiently (which is in everyone's interest) and that people are more willing to go through it.

It's too big and involved a discussion to go into in much detail; suffice to say the Royal Commission is soon going to produce a several-hundred page report with suggestions which are mostly focusing on just one area of sexual offences.

Just a few points off the top of my head:

1) Greater use of restorative justice as an alternative to court proceedings. It's only just starting to come in here now, but has worked elsewhere. Many people just want an acknowledgment of what happened, which the court system is not designed or required for.

2) Overhaul sex offender registration to allow for more discretion as to whether youthful offenders are registered. That's a big sticking point for resolution in many matters.

3) Make it easier to run multiple similar allegations in the same trial. Victoria is ludicrously strict on this, which makes trials completely artificial and far longer than necessary. The High Court case of Hughes may resolve this in the next month or so, but it's far too late. In general, stop mollycoddling juries.

4) Adapt the system for cognitively impaired complainants, who are often preyed upon but cannot give evidence effectively. Intermediaries have been introduced in some places, and hopefully Vic will follow suit.

5) Restrict media coverage of the details of offences, particularly in the early stages. The case which sparked this discussion is a prime example. Open justice is important, but the details do not need to be spashed across the media to be latched onto by vigilantes, wannabe sleuths and those who just take a prurient interest in such things (plus they're often misleading or flat out wrong).

6) Educate the public more about sexual offences. Most offenders aren't strangers lurking in a dark alley, most victims do not scream, resist, auffer physical injuries or tell someone contemporaneously. There are many myths and misconceptions around.

7) Get judges to actually enforce the provisions which already exist, particularly relating to cross-examination. The Court of Appeal has finally sent a message about poor cross-examination of children this month, so hopefully that will sink in.

Oh, and a truckload more money for more judges, courts, prosecutors, legal aid, police, training, etc.

Top post - very informative, thanks.

 

[Crankyhawk]

Given the incredibly low conviction rates and the number of cases with charges being dropped, including the Wild case where three men took turns with a 14 year old girl in Geelong:

http://www.abc.net.au/news/2017-02-...g-girl-in-geelong/8300100?WT.ac=statenews_vic

The question needs to be asked.

http://www.news.com.au/lifestyle/re...e/news-story/9fc4a65689f180b3534d79f4fd019b8e

We have a system where a crime is drastically under-reported, and of the crimes that are reported only 3% result in a conviction.

Given the brutal treatment of victims by the system the actual trauma of taking the matter to court is enough to disincentivise so many people to take no further action.
What should be done?

I wonder whether the issue of crime in general being under reported and low conviction rates is more general that just with rape.

For example I work in a hospital, and sometimes drug affected patients assault staff members. These assaults are often unreported because of a belief of "what's the point, they are just going to get off as not responsible for their actions, why bother, waste of my time"

I had always thought that was a defeatist attitude, and there were new laws passed about assault of emergency workers in Victoria in 2014 which appear to mandate imprisonment (http://www.legislation.vic.gov.au/d...ACA257D5C0015ECFF/$FILE/14-069abookmarked.pdf) I have encouraged my staff to report.

So when one of the patients spat on my face I called the cops, submitted a report, thought my chances would be good that some consequences would happen.

I just got called by the police officer involved (about 4 months later). They have interviewed the perpetrator who claims "no recollection of the event", and furthermore refused to sign a release of medical information. This means that the police can't discover legally what happened to the patient after his interaction with myself - whether he was admitted or discharged. Admission would provide a "defense" that actions were affected by being unwell. (my opinion is that he was "unwell" from the drugs he had taken). The police officer mentioned that she was aware that this was a common strategy used by defendants in this situation - to claim no recollection and refuse to release medical information; which means that even if the hospital wanted to release the information they can't (even to assist their own employee), which means that these cases will never get prosecuted.

In the same phone call, the officer related that she managed to charge one perpetrator with 5 counts of assaulting an emergency services worker and 5 counts of hindering an emergency services worker; defendant found guilty - no conviction recorded and $75 fine.

FMD.

 

[Crankyhawk]

It is a bit of a nutty opinion. I don't see how this would be an issue in the realm of actual rape.

I think the arguement (legally) would be that she would not have consented to the sex if she had known about the infidelity. Therefore the intercourse occurred under false pretences.

I doubt the argument would actually work in court though (but that's just a lay person's guess,not considered legal opinion)

 

[Crankyhawk]

Belief in age is a defence.

What if the victim claimed that she said "I'm 14! I'm 14" but the sex proceeded anyway? Would this obliterate the "belief in age" defence - or does it then become hearsay - but how could you prove she didn't say she was 14?

 

[Donners]

What if the victim claimed that she said "I'm 14! I'm 14" but the sex proceeded anyway? Would this obliterate the "belief in age" defence - or does it then become hearsay - but how could you prove she didn't say she was 14?

That would if the jury accepted it. The accused only has to establish belief on the balance of probabilities, which could be done by cross-examining her and presenting the accused's account (whether in an interview or sworn evidence). Then it's a matter for the jury to assess in light of the full context.

 

[medusala]

Belief in age is a defence.

Where does onus of proof lie in those cases ? There have been a few cases of statutory rape in the UK where people have been convicted of this and their defence was exactly that. One well known case involved a soccer coach picking up a girl in a nightclub - defence IIRC was that it was reasonable to expect her to be 18 because legally she had to be to enter and security staff checked id. He was jailed.

 

[Donners]

Where does onus of proof lie in those cases ? There have been a few cases of statutory rape in the UK where people have been convicted of this and their defence was exactly that. One well known case involved a soccer coach picking up a girl in a nightclub - defence IIRC was that it was reasonable to expect her to be 18 because legally she had to be to enter and security staff checked id. He was jailed.

Onus is on prosecution to prove beyond reasonable doubt that it happened and the complainant was under 16. If established, the onus is then on the accused to establish on the balance of probabilities that they had belief in age on reasonable grounds.

 

[Chief]

Someone posted this link in another thread - I hadn't recalled this line:

TICKY FULLERTON: As the season continues, all eyes are on the game. What happens off the field is less scrutinised. Yet the fact remains that in the past 20 years not one of the cases of alleged rape in AFL and rugby league has led to successful prosecution.

http://www.abc.net.au/4corners/content/2004/s1100551.htm

You could change that to 33 years as far as I can see.

 

[Brunswick Trap King]

Someone posted this link in another thread - I hadn't recalled this line:

TICKY FULLERTON: As the season continues, all eyes are on the game. What happens off the field is less scrutinised. Yet the fact remains that in the past 20 years not one of the cases of alleged rape in AFL and rugby league has led to successful prosecution.

http://www.abc.net.au/4corners/content/2004/s1100551.htm

You could change that to 33 years as far as I can see.

It's amazing how much influence that AFL/Clubs have over the judicial process.

 

[JackOutback]

It's amazing how much influence that AFL/Clubs have over the judicial process.

Well, it's more money, fame and power that influences the judicial process... something the AFL has in spades.

 

[The Lemon]

Well, it's more money, fame and power that influences the judicial process... something the AFL has in spades.

Surely the AFL/NRL can even prevent it going to a judicial process. They are excellent as wielding influence and sweeping things under the rug.

Sad