EVIDENCE LAW

Evidence Law



Evidence Law

Question 1

Rape and sexual assault are crimes and women have the right to pursue justice through the legal system. Women who have experienced such crimes also have the right to what protection the law can offer and to seek compensation for the harm they have suffered as a result of the crime (Syrota, 1995: 334). Rape and sexual assault are two of the most underreported crimes in Australia. The ABS Victims of Crime Survey 1996 indicates that only 25% of sexual assaults are reported to police. Other researchers have estimated that as few as 10% of rapes are reported to the police (F.B.I). Only a small proportion of the offences reported to the police are prosecuted in court and less than half of these will result in a conviction (Copelon, 1994: 243).

While there are various reasons why women do not access the criminal justice system, the difficulty of the legal process and the low conviction rate are among the many reasons women give as to why they are reluctant to report rape to the police. (Report of the Taskforce on Women and the Criminal Code, Qld, 2000) Understanding your legal position and your rights during the legal process can help you decide whether or not to report and can help prepare you for the experience, if you do decide to report. Under the law, rape and other forms of sexual assault are seen as "criminal acts" (Campbell, 2007: 411). In court the Government prosecutes the "accused" rapist and the rape survivor is the chief witness for the prosecution.

Laws relating to sexual offences differ from state to state. In reporting sexual offences, the laws that apply are from the state in which the offence occurred. In Queensland, rape and indecent assault are dealt with under sections 349 and 350 of the Queensland Criminal Code 2000 (QCC). The Criminal Code defines rape as:

sexual intercourse without consent (in the QCC the expression "carnal knowledge" is used to describe the act of penetration in sexual intercourse - this includes anal intercourse) (Bedont & Hall-Martinez, 1999: 65).

penetration of a persons vulva, vagina or anus to any extent with a thing (for example, an object, like a stick or bottle) or any body part (eg. a finger) without consent.

oral penetration to any extent of a person by a penis without their consent.

Consent is defined in the QCC, section 348, as "consent freely and voluntarily given with the cognitive capacity to give consent." (Morgan, 1996: 223) Consent is not considered real consent if it is obtained by force, intimidation or by deception. Women often choose not to resist a rape in order to survive. This does not mean however that she consented to what happened. Consent is also negated if it is obtained by deception. For example, a doctor pretends that it is necessary to insert an instrument into a woman's vagina when in reality it's for his sexual gratification. Women can also be coerced by the exercise of authority, for example an employer who ...