Farah Farouque | The Age | September 8, 2011
SOME accused sex offenders should be dealt with outside the traditional courts in a system similar to South Africa's truth and reconciliation commissions where they meet and hear from victims, says one of Victoria's most senior judges.
Justice Marcia Neave, of the Court of Appeal, told The Age she was deeply concerned that conviction rates for sexual assaults remained ''very, very low'' and guilty pleas had plunged, despite law reforms in the past decade. Victoria's criminal justice system was not working for victims of sex offences, despite changes to court rules and systems to accommodate their needs, she said.
It was time for policymakers to consider a radical alternative to traditional courts by diverting some sex offenders, including alleged rapists, into a system where they made admissions and met their victims in ''conference'' settings. The victims, or a spokesperson for them, would explain how their lives had been affected and discuss reparations - commonly the offender enrolling in a treatment program. No conviction would be recorded.
Both victim and offender would consent to participate under the plan, echoing principles used in the truth and reconciliation commission system that applied after the end of apartheid in South Africa.
As a first step, the idea should be tested in Victoria for carefully selected juvenile sex offenders, including those accused of rape, and perhaps also some adults accused of sex crimes that were decades old and hard to prove beyond reasonable doubt in a criminal court.
''If you can use truth and reconciliation in the context of the apartheid regime in South Africa, in the context of the terrible things that happened in East Timor with the militias, then you might be able to use it in [this sexual offence] context,'' the judge said.
Justice Neave plans to raise the idea, which she conceded was controversial and might be a hard-sell politically in Spring Street, in a paper she will give at an Australasian Institute of Judicial Administration conference in Sydney today.
The paper cites statistics including that fewer than 20 per cent of sexual assault victims report the offences to police. In Victoria, from 2004-05 to 2008-09 a conviction was recorded in about 50 per cent of sex cases that went to trial in the County Court. By 2009-10, the conviction rate had fallen to 38 per cent.
''It must be accepted that some allegations of sexual assault may be false or mistaken … [but] the vast majority of true allegations do not result in any redress through the criminal justice system,'' the paper says.
Before becoming a judge, Justice Neave chaired the Victorian Law Reform Commission, which recommended major changes to court rules and systems for hearing sex assault cases. While acknowledging difficulty persuading the public and politicians her latest proposal was the right path, it was ''not impossible to persuade people that this might be a better outcome'', she said.
''If we are talking about a 17-year-old boy who offended against a neighbour's child - or against a member of his family - I don't think it's rocket science to say that putting this person away for a long period of time will not necessarily mean that he will be persuaded that what he did was wrong and won't do it again.''
Justice Neave said the ''restorative justice'' principle, used for young sex offenders in South Australia and overseas for violent offences, was not a soft option and often harder on the accused than traditional courts.
Under the path, sex offenders would be selected for the program under strict guidelines to be developed by the DPP, victims groups, defence lawyers and the judiciary. Repeat offenders would be excluded.
Justice Neave said she had spoken to many sex assault victims who were not concerned only with retribution. ''They want a voice in the process.''