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Justice systems overview

• Australia
• South Africa
• Canada

Australia

Sexual assault is one of the most under reported crimes in Australia. There are many reasons for this, including the social stigma which flows from myths surrounding sexual assault, and the ways in which the assumptions beyond those myths flow into the workings of the legal system. As the South Eastern Centre for Sexual Assault in Victoria notes, it is important to consider the position of women before the law, given that they have traditionally been viewed as the property of men. Nowhere is this issue of ownership more clearly reflected than in the laws on sexual assault. For example, it was not until the late 1980s that immunity from prosecution for rape within marriage was removed in all Australian states and territories.

Historically, rape and, specifically, consent, have been defined by common law (also known as precedent). Since the women's movement and the resulting change in community attitudes, the laws have been reformed by parliaments in most states of Australia.

Most states have now adopted legislation that focuses on forms of coercion other than the employment of physical violence. Although legislative definitions of consent vary a little from state to state, the themes of the reforms promote an understanding that when coercion is employed, it negates consent. Most states have specifically defined the circumstances in which consent is negated, although 'proof' that a rape occurred still relies on effectively convincing a jury not only that the woman did not consent, but also that the offender knew she was not consenting.

South Africa

In South Africa today, the justice system recognises that in cases of sexual assault there is often only one witness.

Sexual assaults happen in privacy. As Superintendent Andre Neethling points out, it’s not like an armed robbery where people burst into a bank and you’ve got 20 to 50 eyewitnesses.

Fortunately, the practical implications of the "single eyewitness" are now accepted.

"Many of these people are excellent witnesses and they stand up in Court, they tell their story, that’s all we would want them to do," Andre explains.

DNA and other medical and forensic evidence can help, but in many cases the police do not find DNA, so they do not rely on it.

"We often just have to rely on the evidence of the client."

Canada

The Canadian Resource Centre for Victims of Crime publishes a very useful Q&A-style guide that explains how the Canadian criminal justice system handles sexual assault cases. Download the Victim's Guide to the Canadian Criminal Justice System (.pdf)