Recognising and reporting sexual assault

26.26 The first step in engaging with the criminal justice system following sexual assault involves the complainant understanding that what happened to them constitutes a sexual offence. There is a wide range of acts of sexual violence that a victim may experience as part of family violence, many of which constitute a sexual offence under criminal law.^[38]

26.27 As discussed in Chapter 24, many women may find it difficult to recognise what an intimate partner or family member has done to them is a sexual assault. WESNET—The Women’s Services Network submitted that:

Workers report that quite often women do not see what they have experienced as sexual abuse until the worker provides a definition. At that point many women acknowledge that they have experienced sexual violence.^[39]

26.28 Particular groups of women may face special difficulties in recognising sexual assault. For example, for some Aboriginal and Torres Strait Islander women the ‘normalisation of violence’; or for women from culturally and linguistically diverse (CALD) backgrounds, lack of knowledge about the Australian legal system may make it difficult to identify the harm suffered as a criminal offence—as can the fact that ‘in some traditional cultures there may not be a concept of sexual violence occurring in marriage and no definitions of consenting sexual activity’.^[40]

26.29 More generally, women and other victims of sexual assault may lack knowledge about the options that they have, and the mechanisms that are available to assist them in reporting sexual violence and engaging with the criminal justice system.

Barriers to reporting

26.30 Where victims do recognise that what happened to them is a criminal offence, in many instances they may decide not to make a report to the police in any event. Numerous surveys show that the majority of sexual assaults never enter the criminal justice system because few victims report sexual assaults to the police.^[41]

26.31 There are several reasons underlying some victims’ reluctance to disclose sexual assault or report sexual assaults to the police, including considerations related to: the relationship that they have with the perpetrator; fear of the perpetrator; how serious the victim perceives the assault to be; lack of confidence in the criminal justice system to assist; previous experiences with reporting; and notions of privacy, shame, trauma and stigma.

26.32 During the Inquiry, stakeholders emphasised the shame and trauma surrounding sexual assault. For example, Hannah McGlade remarked that:

Rape is a severe, profound violation of the physical, emotional, psychological and spiritual self and the trauma of sexual assault and violence can ‘suppress’ sexual assault as a coping response. Women and children may be so harmed by sexual assault they are unable to even articulate the offence. Women and girls may also be well aware that the law does not respond sensitively to rape, and this fear is especially valid for Aboriginal women and girls.^[42]

26.33 Where sexual assault occurs in a family violence context, there are additional factors associated with the nature and dynamics of family violence which mean victims may not report the assault to police. These factors may include, for example, an ongoing relationship between the victim and perpetrator; economic dependence and potential homelessness; the presence of children; and other avenues for redress such as civil protection orders.

26.34 While some barriers to reporting sexual assault are unique to the victim, others are heavily influenced by more general characteristics and factors including: the victim’s age; disability;^[43] geographical location;^[44] sexual orientation or gender identity;^[45] and race or ethnicity.

26.35 For example, children as victims of sexual assault face specific barriers to disclosure, particularly in a family violence context. These include: fear of not being believed; ‘fear of family breakdown’; ‘a sense of ongoing responsibility’ for the stability of the family or safety of siblings and other family members; and fears for their own personal safety.^[46]

26.36 Barriers faced by Aboriginal and Torres Strait Islander women may include:

• family and community pressure concerning speaking out about sexual assault, including a culture of blame being shifted to victims;

• feelings of guilt and shame as well as privacy concerns associated with not wanting issues publicly aired;

• the potential for retribution from the perpetrator and the perpetrator’s family as well as the victim’s own family and community;

• issues associated with police, including: lack of permanent police presence in some communities; past inappropriate police responses; lack of Aboriginal and Torres Strait Islander or female police officers; as well as fear of police attention in light of other matters such as outstanding arrest warrants;

• cultural and linguistic communication barriers; and

• systemic barriers such as lack of appropriate services.^[47]

26.37 Women from CALD backgrounds also face a range of cultural and systemic barriers—based on language and other issues —including:

• limited knowledge of, or access to, culturally appropriate and sensitive avenues for reporting or support services;

• family and community pressures concerning disclosure of sexual assault or, alternatively, isolation where there is an absence of immediate or extended family and community support in Australia;

• cultural and linguistic communication barriers, such as the lack of information in diverse community languages or of professional interpreters; and

• fears about immigration status.^[48]

26.38 The Immigrant Women’s Support Service also emphasised that:

Women may also have a strong internal sense of responsibility to protect their family/community identity and reputation. There may also be cultural values and traditions that foster violence against women and children that remain unchallenged in CALD communities, and gender related roles that may result in restrictive behaviours, beliefs and institutional arrangements.^[49]

26.39 Finally, McGlade pointed out that both Aboriginal and Torres Strait Islander and CALD women face common institutional and structural barriers, including discrimination in the form of sexism and racism which in turn contributes to women’s reluctance to report sexual assault.^[50]

Reporting to the police

26.40 Where a victim recognises that a sexual assault has occurred and is willing to make a report, the next step in engaging with the criminal justice system about a sexual offence is to make a report to the police, or have the offence notified to the police in some way (for example through a parent, teacher, doctor or neighbour).^[51]

26.41 Stakeholders emphasised that the initial response of the criminal justice system is vital, not only to ensuring that subsequent stages function effectively, but also to minimise the trauma of the process for complainants.^[52] Consequently, where sexual assault is reported, the response of the police is vital to the complainant’s decision to continue to pursue their complaint. As the VLRC observed:

How the police are perceived by people who report an assault and the quality and consistency of their investigative and decision-making practices will have a major impact on reporting and prosecution patterns.^[53]

26.42 In light of this and the barriers to reporting outlined above, the function of police should include protecting and supporting victims.^[54] The issue of specialised police responses and investigation as well as other aspects of victim support and liaison are discussed in more detail in Chapters 29 and 32.