Introduction
The experiences that sexual assault victims have in the criminal justice system can compound their trauma and victimisation, resulting in victims being discouraged from reporting and/or continuing with their case.[19] indeed, research suggests that some women are so traumatised as a result of the preliminary hearing that they are either unwilling or unable to follow through with the complaint.[20] In addition there has been extensive research documenting the revictimisation of witnesses in sexual assault trials.[21]
The Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) was enacted in mid-2009 to address these issues with “the dual objectives of treating complainants in sexual and violent offence proceedings and other vulnerable witnesses with respect and dignity during the prosecution process, and ensuring a fair trial for an accused” and were “designed to extract the ‘best’ evidence possible from witnesses who may otherwise suffer a disadvantage”.[22] This Act amended the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and the Magistrates Court Act 1930 (ACT) in relation to sexual and violent offences.
The committal hearing process was modified by allowing a transcript or written statement of an audio or visual recording between police and a witness to be admissible as evidence for all sexual assault victims.[23] A “pre-trial hearing” for non-disabled, adult victims of sexual assault who are especially vulnerable[24] was to be held as soon after the committal as possible and before the actual trial[25] was introduced. And, other measures to protect the victim witness such as CCTV, screening and closing the court were introduced.The Act, however, as drafted and enacted is permeated with indeterminacy.[26] For instance, who is eligible to participate in pre-trial hearings are deemed as those likely to suffer severe emotional trauma or most likely to be intimidated or distressed.
The process itself is grey with the ordering of many of the provisions only decided by the judicial officer if the prosecution applies. There are no clear guidelines for the prosecutors to follow. Further, there is the use of the word “may” as opposed to “must” in a number of provisions as discussed later in this chapter.Judicial and/or prosecutorial discretion in applying and interpreting indeterminate provisions may be influenced by prevailing notions of sexuality and sexual behaviour that come from a stereotypical definition of “real” or “legitimate” rape and stereotypical constructions of the “good” victim and “reasonable” responses.[27] Sexual assault myths continue to permeate society and judicial officers and legal practitioners, as members of society, continue to be influenced by them.[28] In addition, balancing the rights of the accused and the victim may be somewhat problematic.[29] Therefore, our aim in this study was to identify how these indeterminate sections of the Sexual and Violent Offences Legislation Amendment Act are in fact being interpreted and thus assess if the Act is achieving its objectives.
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