1.9Sexual violence usually occurs in private and without witnesses besides the victim. It can also occur without evidence of physical force or harm. The evidence that is required to prove criminality to the required standard of beyond reasonable doubt is more difficult to establish, unless the acts in question conform to the “real rape” stereotype, which is an act of rape involving a stranger, use of a weapon and evidence of violence (see further below). Most acts of sexual violence do not conform to that stereotype.
1.10Sexual violence is a form of offending that breaches a victim’s most intimate physical (and psychological) boundaries. This has a number of consequences, including less willingness of victims to report it to someone they do not know, such as Police, especially since to obtain the requisite evidence to establish criminal offending beyond reasonable doubt, the victim must go through a medical examination and questioning on the intimate details of the acts alleged.
1.11In the process of investigating allegations of family violence, sexual violence may be overlooked because the victim does not raise it, because it is difficult for Police to ask about it without having first established a measure of trust and because it is more difficult to establish in court than forms of violence that leave physical evidence.
1.12Most perpetrators of sexual violence are known to their victim and many are in a personal or family relationship with their victim. The victim may be reliant on the perpetrator for social or economic support. The victim may not want the perpetrator to go to jail for a lengthy period. However, at the end of the criminal trial process, the outcome for the defendant is either conviction or acquittal. If the outcome is a conviction, the likely result is a term of lengthy imprisonment. If the outcome is an acquittal, there are very few other options for a victim to seek justice in a form that can sit alongside the need or desire, if any, to have ongoing contact with the defendant.
Because most rape victims know their perpetrator and the act is an intimate bodily invasion, sexual violence is a more severe violation of personal trust than other crimes such as burglary even though both transgress the boundaries of private, personal spaces.
1.15A related point is that, although sexual violence can have a number of distinctive impacts on its victims, there is no “typical” victim response. Victims may behave in one of many different ways to cope with the psychological impact of offending both at the time of the incident and afterwards. Some of these may appear counter-intuitive, yet they are established by research to be common responses. When tested at trial, however, the diverse and sometimes counter-intuitive nature of victims’ responses may appear to be, or may be presented as, evidence that an incident of sexual violence did not occur.
1.16The particular psychological impacts of sexual violence can give rise to needs that are identifiably distinct in terms of what victims of sexual violence seek from the justice system when they make a complaint.
1.18We explore these “justice needs” further in Part C, but by way of example, victims of sexual violence in particular may be more likely to need a sense of participation in the process of seeking justice. That and many of the other “justice needs” of victims of sexual violence often run counter to the role played by victims at trial, in which they are largely relegated to the role of primary witness to the offending upon whose evidence much of the success of the case rests.
1.20A set of powerful cultural conceptions are associated, for instance, with the expected response of a victim to sexual violence. This is for a victim to physically resist or struggle, yell to draw the attention of others, immediately cut all contact with the perpetrator and report the sexual violence directly. Many people who experience sexual violence, however, may not call attention to it at the time. They may freeze out of shock or as a form of self-protection. Some victims report not wishing to cause a scene. They may not report the incident of sexual violence until some time after the fact or may not recognise it or identify it as an act of sexual violence.
1.22These cultural conceptions are unique to sexual violence as a form of criminal offending. To the extent that they have an impact on the fact-finder in a criminal trial, they are likely to affect whether the fact-finder finds the complainant, and the circumstances in which the sexual violence is alleged to have occurred, credible.