Resolution

Extending the
reach of justice
Rob Hulls was attorney-general in Victoria, Australia from
1999-2010. In 2012 he was appointed adjunct professor at
RMIT in Victoria and was invited to establish the new Centre
for Innovative Justice as its inaugural director. The Centres
objective is to develop, drive, and expand the capacity of
the Australian justice system to meet and adapt to the needs
of its diverse users.

any readers will

have followed the
trial of Rolf Harris
and proceedings
involving
allegations of
sexual offending
by other celebrities in the UK with a
growing sense of revulsion. Stories like
these flicker across our living rooms and
confirm our fears that sexual predators
are out there. Together with cases
involving attacks by strangers, they
capture our attention because of their
brutality, because of the individuals
identity and, equally as significantly,
because they reach court.
It is right that they should do so, of
course. It is right not only that these
offenders are brought to account, but
that we see this occurring. It sends
the message that sexual offending will
not be tolerated, whether by someone
known to few, or to millions around the
world. Additionally, it offers victims the
opportunity to have their story heard,
as well as hopefully bringing them some
sense of resolution though this is not
guaranteed as the trial process itself can
often be re-traumatising.
What these cases highlight for me,
however, is how much they are the
exception. Whether they involve a
predatory stranger or a high profile
celebrity, they reinforce the notion that
sexual offenders are not one of us
that the crime has occurred precisely
because the perpetrators exist beyond
the parameters of average society and
that, where an aberration occurs, it is
swiftly brought to justice.

Yet this could not be further from

the truth. The vast majority of sexual
offences are not committed by strangers
lurking in the shadows, or even by
well-known entertainers who appear
to believe that they are above the law.
Most are usually committed by ordinary
people in ordinary places and here is
a similarity with some aspects of the
Harris case by someone the victim
knows and trusts.
In this context, most victims either do
not report or do so, understandably,
after considerable time has elapsed.
With corroborating evidence rare, and
the adversarial system pitting one partys

word against the other, most victims

ultimately do not see the perpetrator
brought to account. Even hard-won
improvements to the trial process in
a range of jurisdictions are still not
translating to successful prosecutions,
with Australian estimates suggesting
that only one per cent of sexual assaults
committed result in a conviction.
Meanwhile, increasingly tough penalties
echo the communitys condemnation,
yet are contributing to more offenders
contesting allegations. In fact, in my
home state of Victoria, courts report
that far fewer individuals charged with
sexual offences plead guilty than those

Issue 52: Autumn 2014

charged with other offences. This means

that more victims of sexual offences
must undergo a trial to see a conviction
secured. Where this is not successful,
or where prosecution is not attempted,
this leaves the majority with their
needs unmet. Their offender remains
unaccountable, yes, but victims are also
robbed of any acknowledgment, let
alone assurance, that the crime will not
occur again.
Reformers around the world have
therefore begun to scan for better
options and readers will not be
surprised that restorative approaches
are among them. With the growing
emphasis on RJ in the UK, many may
be aware of evidence suggesting that
when used in appropriate cases, RJ can
meet the needs of victims of sexual
offences in ways that the conventional
system cannot. Certainly, while some
victims will not want to confront their
offender, it is the personal nature of
an RJ encounter that can offer the
redress that others seek. Predicated on
acknowledgment of the offence, it can
provide answers to specific questions,
an agreement about future contact
or disclosure to family members, a
commitment to undergo treatment,
or an apology outcomes that are

more tailored to individual needs than

existing options on the table.
The challenge, however, comes in the
practical application. For example,
though emphasis is growing in Europe,
and though RJ is firmly established in
New Zealand, it still operates largely
on the periphery in Australia and has
generally not been extended to sexual
assault. This is partly because many
both in Australia and elsewhere
remain cautious that alternatives will
undermine the gravity with which sexual
assault is now viewed. Answering the
hard questions and translating theory
into concrete proposals ones with
sufficient checks to assuage concerns
are therefore both critical if RJ is to
reach those who may need it most.
That is why the Centre for Innovative
Justice (CIJ) in Australia has developed
a model for sexual offence RJ
conferencing that can act as an
additional path in the justice process,
while preserving the possibility of
prosecution. Based on a programme
already operating successfully in New
Zealand called Project Restore, the
model is pragmatic and victim-centred,
with basic eligibility and suitability
criteria to assess whether a victim is

adequately prepared and an offender

legitimately willing to participate.
Legislative support and structural
oversight are recommended, as are
skilled, specialist personnel and an
expert assessment panel. Pathways into
and out of conferencing are laid out
and gatekeepers, such as judges, are
nominated to ensure that a conference
is not pursued when prosecution
would be more appropriate. Links to
appropriate treatment programmes are
also addressed.
In other words, the CIJ has developed
a tangible blueprint that Australian
governments can adopt. With the
public eye trained to those high profile
matters that have secured a conviction,
however, we need to uncover the
rest of the iceberg. We need to have
conversations about the victims who are
missing out, as well as those who may
have seen their offender prosecuted
but have still had their wider needs or
interests unmet. We have to talk about
possible alternatives, or additional
options that can sit alongside the
conventional path. As limited as the
parameters of a court hearing may be,
we also need to examine what elements
of the trial process can be valuable to
victims, such as the chance to have their
story heard and acknowledged, and look
at ways to extend that opportunity to
as many victims as possible, regardless
of the nature of the offending or the
notoriety of the offender.
Horrified though we should be by
the cases unfolding in the public eye,
therefore, the pervasive reality of
sexual assault means that we cannot
just attribute it to a monstrous, or high
profile, few. We have to engage with
reality and resolution, rather than just
retribution. The needs of countless
victims are too important to do
otherwise.
Adjunct Professor Rob Hulls
Director of the Centre for Innovative
Justice at RMIT University, Victoria,
Australia
The full version of the Centre for
Innovative Justice Sex Offences Report
can be found at www.rjc.org.uk/
RMITreport