Legally, sexual assault is a crime against the state as opposed to a crime against the victim. The victim will be a witness in the case. As a witness the victim may be cross-examined by the lawyer of the accused. Compensation is available to victims in some circumstances.
How sexual assault crimes are handled in court
In Victoria, the Office of Public Prosecutions (OPP) acts on behalf of victims to prosecute people accused of sexual assault. The victim is a witness in the OPP’s case and is known as the “complainant”.
The alleged offender, known as the “accused”, has a right to be presumed innocent and a right to be legally represented. The prosecution must prove the case against the accused beyond reasonable doubt.
If the accused pleads not guilty, evidence needs to be given at the trial about what happened. If the complainant is an adult, and does not have a cognitive impairment, they must attend court and be examined (i.e. questioned by the prosecuting lawyer) and cross-examined (i.e. questioned by the accused’s lawyer).
Evidence from people with a cognitive impairment may be taken at a special hearing, and then provided to the jury at the trial via video.
Where the complainant is a child, evidence given to support the prosecution will generally be in the form of a tape-recording of the statement the child gave to police officers.
A complainant cannot be cross-examined by the accused. There are restrictions on what sorts of questions a complainant can be asked in court.
When a complainant gives evidence in court, the court can provide alternative arrangements to make the complainant as comfortable as possible (e.g. evidence can be given by closed-circuit TV, so the complainant doesn’t have to be in the court room). Also, at the County Court and Melbourne Magistrates’ Court, a private room is available for complainants to wait in before their court appearance. For more information about the facilities available for complainants, contact the Court Network (see “Contacts”).
If the accused pleads guilty, the complainant does not need to give evidence.
Any information that identifies a victim of sexual assault cannot be published; this rule takes effect from when the offence is reported to the police.
Either after a guilty plea or a guilty verdict, the accused will be sentenced. The judge may take into account a range of factors when sentencing, including aggravation (e.g. the use of weapons, infliction of physical injury, or threats), the accused’s character, the need for punishment, and the need to deter the accused and others from committing offences, as well as the potential for the accused to be rehabilitated.
The judge may also take into account the impact of the sexual assault on the victim and those associated with the victim. The impact is mainly determined by the victim impact statement.
A victim impact statement outlines how the crime has affected the victim; medical and psychological reports may be included with the statement. The victim impact statement must be prepared prior to sentencing and made available to the prosecutor, the court and the accused’s lawyer.
The victim may request that an appeal be lodged, but the Director of Public Prosecutions (DPP) decides whether or not to appeal.
The accused may appeal against the conviction and/or sentence. Both of these possibilities are outside the control of the DPP.
Under section 85B of the Sentencing Act 1991 (Vic), a victim of sexual assault can seek a court order (from the court that found the assailant guilty) for compensation for loss, destruction or damage of property, and for pain and suffering caused by the assault. An application for a compensation court order must be made within 12 months of the offender being found guilty, although an extension of time can be granted. The victim should seek legal advice before applying for compensation.
A victim of sexual assault may also be eligible to take other legal action against an offender through the pursuit of damages for personal injuries or breach of the offender’s duty of care if, for example, the offender was a doctor, teacher or a parent.
A victim of sexual assault may also seek victims of crime compensation. See Assistance for victims of crime.
For more information about these options, contact a community legal service, Victoria Legal Aid or a private lawyer (for contact details, see How legal aid can help, and Legal services that can help).