Word Count: 1096 words (excluding in-text referencing)

Women, Sexual Assault, Legal & Non-legal Responses, and

the Achievement of Justice

With reference to one contemporary issue, assess the effectiveness of legal and non legal
responses in achieving justice.

The interpersonal nature of sexual violence against women has prevented legal and non legal

responses from fully achieving justice. However, efforts by these entities to address inequity

under the law have increased the effectiveness of institutions in achieving justice for women.

Pivots towards victim-centred justice have made reporting and judicial processes somewhat

more accessible for women. Whilst reform around consent has made sexual assault law more

enforceable, significant evidentiary impediments to justice remain. Efforts to balance the

rights of victims and offenders have restricted the achievement of justice through the

perpetrators’ use of defamation law. Legal and non legal responses are somewhat effective at

achieving justice for female survivors of sexual assault, but are restricted from fully

achieving this due to the nature of sexual violence.

Legal reform towards victim-centred justice, whilst increasing accessibility to reporting and

legal issues, has not fully removed social barriers to the achievement of justice. In 2023,

NSW Police released the Sexual Assault Reporting Option (SARO), an online reporting

system replacing a 14 page document originally needing to be printed and filed (Hildebrandt,

2023). Whilst this document does not establish a criminal investigation, it does allow for the

identification of repeat offenders, and for victims to make future statements to police. The

increased autonomy in reporting options gives victims more control over their engagement

with the criminal justice system, increasing accessibility. Furthermore, NGOs such as the

Women’s Legal Service NSW are able to provide legal aid and advice to women, increasing
the accessibility of legal mechanisms (Women's Legal Service NSW, n.d.). However, there

are still significant impediments to the achievement of justice, particularly in courtroom

procedure. Whilst there are nominal prohibitions on the cross-examination of a victim on her

sexual history, found in the Criminal Procedure Act 1986, in practise broad exemptions result

in many victims being asked intrusive questions about their personal lives and prior sexual

history with the defendant (Criminal Procedure Act 1986; Criminal Justice Sexual Offences

Taskforce, 2005). In particular, claimants in cases where the defendant was previously known

will often be thoroughly questioned about interactions and relationships before the alleged

incident. These exemptions contribute to a courtroom environment where women are

revictimised through an intrusive process of cross-examination (Blau, 2018). As a result,

women are significantly less likely to report sexual assaults than other offences, with only

13% being reported to police (Australian Bureau of Statistics, 2021). Legal reform has been

able to make the legal system more accessible for women reporting sexual assault, although

there are still impediments to achieving victim-centred justice.

Significant evidentiary barriers remain to the effective achievement of justice in sexual

assault cases, although consent reform has assisted legal and non-legal responses in enforcing

the law. In 2021, the Parliament of NSW, through the Crimes Legislation Amendment

(Sexual Consent Reforms) Act 2021, changed the definition of consent in New South Wales

(Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021). Under the new

legislation, individuals must now actively seek consent, instead of being able to passively

infer it. These changes were in part motivated by R v Lazarus, where Luke Lazarus was

acquitted of sexual intercourse without consent with Saxon Mullins on the basis that “the

accused had… reasonable grounds for believing that the complainant was not consenting,”

despite the claimant’s intoxication, her repeated protestations, and her lack of active
participation in the act (R v Lazarus, [2017]). Mullins’ organisation, Rape and Sexual Assault

Research and Advocacy, later successfully advocated for reform pertaining to the

requirements to claim belief in consent (Rose, 2022). By placing the onus on individuals to

ascertain sexual consent, the amendment significantly raised the evidentiary burden to claim

belief an individual consented, increasing the enforceability of the law. However, further

barriers remain to the successful prosecution of sexual assault cases. The primary evidentiary

issue in sexual assault cases is that often they consist of individual testimonies, as opposed to

physical evidence (Blau, 2018). This form of evidence is given significantly less weight,

resulting in a significant difficulty in reaching the standard of proof. Furthermore, the

Longman direction, a jury instruction informing them that a delay in reporting lowers the

ability to examine the accused’s evidence and therefore its weight in their decision, furthers

issues of reaching the standard of proof (Criminal Justice Sexual Offences Taskforce, 2005).

Whilst this assists in furthering the rule of law and therefore the achievement of justice, it

reduces the enforceability of the law, often to an extent where the majority of sexual assault

cases are viewed as unprosecutable (Criminal Justice Sexual Offences Taskforce, 2005;

Larcombe et al., 2016). Whilst consent reform through legal and non-legal entities has

assisted in the achievement of justice for women who are sexually assaulted, significant

evidentiary barriers prevent the full enforcement of the law.

Defamation law, despite aiming to balance the rights of victim and offender, has been used to

prevent survivors of sexual assault from speaking to media, preventing the achievement of

justice. In 2020, actor Geoffrey Rush took legal action against Nationwide News, alleging

that an article published in the Daily Telegraph alleging he had sexually assaulted actress

Eryn Jean Norville was defamatory (McKinnell, 2020). In a highly criticised decision, Justice

Wigney found in favour of Rush, in part because she “remembered things that [she] hadn’t
before,” and made positive comments about Rush on a press tour (Geoffrey Rush v

Nationwide News & Anor, [2020]). These defamation cases, whilst not directly against the

alleged victim, can cause significant stress and reputational damage to the victim, and have a

broad ‘chilling effect’ on further claims of sexual assault in media (O’Connell, 2019).

However, efforts have been made to shift the balance of rights between victim and offender.

The Defamation Amendment Bill 2020 created a new defence on the basis of ‘public interest,’

where journalists must merely show that the reporting was in the public interest, and

reasonable steps were taken to ensure it was reliable (Defamation Amendment Bill 2020).

Whilst sexual assault reporting has not been defended on this basis in Australia, Lachaux v

Independent Print Ltd and another (2019) in the UK established that gender-based violence

could be considered in the public interest. There, Independent Print was successfully able to

argue that domestic violence reporting could be considered in the public interest, creating

persuasive precedent for Australian law (Robinson and Yoshida, 2022; Lachaux V

Independent Print Ltd and Another , [2019]). Defamation law is an impediment to the

effective achievement of justice through overly prioritising the rights of the alleged offender,

restricting victims’ freedom of speech.

Shifts towards victim-centred justice have somewhat increased the achievement of justice

through an increase in the accessibility of the criminal justice system. Despite reforms

regarding consent, a lack of enforceability due to evidentiary standards prevents legal

mechanisms from achieving justice. Defamation law, through the unequal valuation of

victims and offenders rights, has restricted the achievement of justice in sexual assault cases.

Whilst institutions have made significant efforts to address the issues of sexual violence, the

innately interpersonal nature of sexual violence has prevented both legal and nonlegal

institutions from achieving justice for women who have experienced sexual assault.
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