By Donna Stuart
Between 1989 and 1990, 553 people in Victoria complained of rape, and up to 2000 reported sexual assault to the police.
It is universally recognised that crimes against women are by far the most under-reported of all crimes, and the number of reported sexual assaults is a small proportion of those that take place.
In fact, US and UK studies suggest that up to 93% of sexual assaults are not reported. And few of the small number of reported cases are prosecuted.
Less than a third of all complaints made to the Victorian police are proceeded with, and of those that are, less than half result in a conviction.
These statistics have to suggest there is something wrong with the system of justice in Victoria. Certainly, callers to a sexual assault phone-in cited an overwhelming lack of faith in the legal system as a fundamental reason for never reporting.
The legal system fails to take into account the emotional repercussions of sexual assault, yet the phone-in established that almost all victims suffered extensive and long lasting emotional damage.
One caller said, "It destroyed my life. I've never trusted anyone since. My sex life is a complete shambles, and I shower all the time because I feel dirty. I can't sleep and I still have nightmares. They ruined my life so much, why didn't they just kill me?"
This sense of powerlessness is also characteristic of what women suffer in the legal process. Women are not seen as having any rights or interest in the proceedings and are not legally advised or represented. Professional support is rare because there is little recognition of the trauma she has suffered.
As well, a stereotype of assault as a physical attack in a public place by a male stranger remains. Notions of force and resistance are also defined according to male standards. Women's experience of assault — often in the home — is often not recognised within that framework. In rape trials, much emphasis is placed on physical injury, apart from the violence of unwanted penetration, as a means of establishing whether consent was given or not.
As one victim recounts, "The fact that you're not torn limb from limb implies you did not fight, that you submitted. But does submission mean consent? That is absurd. The act of sex will not kill you if you lay there like a piece of meat. You fight and you could be killed. But if you don't fight, don't expect the courts to believe you."
In the campaign to reform Victorian rape laws two major problems facing women surfaced — the issue of consent and the hostile and humiliating treatment women faced in court.
The new rape legislation will, once proclaimed, repeal the some common law and replace it with a clear and consistent legislative definition of the offences.
Rape will be defined as sexual penetration without the victim's consent, where the perpetrator is aware the victim is not, or may not, be consenting.
The legislation defines consent as free agreement to sexual penetration and makes clear that consent can no longer be "tearful and grudging".
For the first time the legislation clearly states that
- the fact that a woman did not say or do anything to indicate free agreement to a sexual act is normally enough to show that that act took place without her free agreement;
- a woman is not to be regarded as having freely agreed to an act of sexual penetration just because she: did not protest or physically resist, did not sustain physical injury, freely agreed to sexual penetration on another occasion or to another sexual act on the occasion in question.
One in 10 women are raped in their lifetime and experience, as a result, lack of motivation, depression, anxiety, fear, loss of confidence and trust, and hopelessness. The extent of sexual assault and its consequences denies women's right to be self-determining, sexually autonomous and equal members of society.
Clear legislation and appropriate education can indeed go some way in redressing this inequity.
[Abridged from a talk presented at a Stop the Violence Against Women public forum in Melbourne.]