Legal Studies Assignment
The Legal System – Law Reform
Evaluate the effectiveness of the law reform process in achieving just outcomes in regard to sexual assault.
Word Count: 2293
Sexual Assault Law Reform.
Sexual Assault is a general term for criminal offences involving unwanted sexual contact; acting including unwanted touching, groping, indecent acts of kinds, and rape. (Milgate, Dally, Webster, Cornu & Kelly – 2009, p.118). Sexual assault law varies in different states and territories in Australia.
During the 1970’s -1980’s significant law reform processes were initiated due to a lack of just outcomes for the victim and a lack of support from society. Changes to legislation included the broadening of the definition of sexual assault, resulted in attention being taken away from the complainant’s personality traits and sexual history and shifted attention too the accused’s behaviours. Further more it outlawed the Act of Martial rape entirely). This also helped to change victim’s position in society, as rape victims were socially condemned because of their experiences. In spite of these significant changes sexual assault cases have the lowest record of guilty verdicts and the highest appeal rate of any crime per capita (Australian institute of family studies) . This assessment will firstly examine the condition in society, which led to the law reform mechanism in the 80’s. These reforms were amendments to the Crimes Act 1900. A case study will highlight the condition, which led to these changes. Following will identify and evaluate further significant amendments of the crimes act and their changes to legislation. A case study will also highlight this, demonstrating the effectiveness or ineffectiveness of these changes. Further on will include another law reform, discussing its flaws and fairness to society and victims. Throughout the 19th and 20th centuries, women were deemed as property of their father or husbands. Throughout this period sexual assault was known as rape. Any form of rape was viewed as damaging or devaluing a mans property. This reflects a completely male dominated society, where as women are viewed as objects, instead of human beings. The heinous act of marital rape was not seen as a recognisable constitutional offence and was not punishable, as men were granted marital immunity and a right to sexually involve himself with his partner regardless. As Sir Matthew Hale, Chief Justice, mid-17th century, England said “The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”. (Hale 2014)
Traditionally victims in court were cross-examined using intimidation and humiliating techniques, degrading the victims integrity, twisting events and manipulating laws and precedents in order to disprove sexual offence allegations. Defendants in court were protected by highlighting that victims were ‘asking’ to be sexually assaulted by dressing seductively or acting in a licentious manner, while also making references to their sexual history. It was also commonly believed, that if a victim failed to report the incident immediately, it was a false allegation. This indicates a lack of procedural fairness, as victims were not given the right of a fair trail, reflecting unjust and unfair social values. Outcomes were influenced by gender, instead of fact, contradicting an ethical and just legal system. (Loughman, Van De Zacht, Maysaw, & Hunter, 2007). The case of PGA v the Queen provides evidence of a case highlighting an ineffective Justice system before significant law reforms. The defendant (PGA) was charged in 2010 for the rape of his spouse in 1963. While in court, he argued that he could not be effectively prosecuted because Martial rape was not a recognised crime...
References: Milgate P, Dally K, Webster P, Cornu D, Kelly T (2009).
Cambridge Legal Studies - Preliminary Second Edition - London
Fileborn, B ( 2011)
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