Lack of Conviction: A Proposal to Make Rape Illegal in South Australia

Abstract

1.0 INTRODUCTION Anti-rape activism is replete with dilemmas. Let me begin with just one: conviction statistics for rape vividly summarise the lack of justice available to people who have experienced rape, and thus present a potential asset in achieving change. At the same time, however, they hold some real risks. They can focus attention on the legal system and leave other arenas in which change is needed untouched. They can send unwanted messages both to people who have experienced rape and to those who perpetrate it. And, as this paper demonstrates, the statistics themselves can become the focus of attention, when the original goal was to focus attention on improving the state of affairs that gave rise to low conviction statistics. This article reviews South Australian conviction statistics for rape and attempted rape from 1993-2003. It takes recent law reform processes in South Australia as a case study of the ways in which conviction rates can be mobilized as a tool by various participants in those processes. The blunt numbers presented in more detail below demonstrate that although the conviction rate from 1981-1991 was low and falling,1 from 1993-2003 the proportion of reports to police resulting in a finding of guilty as charged for rape or attempted rape fell still further. In 2003 only 1.5% of reports resulted in a finding of guilty as charged. What does this mean in concrete terms? Conservative estimates suggest that, at most, one in four rapes are reported to police.2 If they are correct, about 3144 rapes were committed in SA in 2003. If the national and international estimates that suggest 15% or less of rapes are reported3 are correct, approximately 5240 rapes were committed in this state in 2003. Yet, only 786 were reported to the police.4 In 2003, only 100 reached court, though a smaller number went to a full trial. Of these, 12 resulted in a finding of guilty as charged.5 Looking at these conviction figures makes me wonder whether the only realistic campaign which takes the criminal justice system as its focus would be a campaign to make rape illegal. Because there is little evidence that it is illegal except a few words tucked away in the Criminal Law Consolidation Act. In South Australia, rape is overwhelmingly subject to 'resolution without trial'.6 Indeed, twenty years after Catharine MacKinnon famously stated that rape 'is not prohibited; it is regulated'7, her words have become more, rather than less, obviously applicable in this state. In the face of such challenges, attempting to be realistic has begun to seem like an obstacle rather than an asset in ending rape. Eliminating sexual coercion is broadly seen as a wholly unrealistic goal, and perhaps that is part of the reason institutional responses to sexual violence remain manifestly inadequate. Only the realistic has been attempted, and these figures show that the scale of the problem demands much more than tinkering around the edges. However, the history of anti-rape activism shows a persistent return to law reform as a strategy. I have been, and continue to be, part of these efforts in tandem with other strategies. There are some profoundly good reasons to engage in rape law reform. They include the necessity to have society's ultimate sanctions for unacceptable and profoundly injurious conduct apply to sexual violence. They also include the urgent need to ensure access to justice for people who have experienced sexual violence. However, participation in law reform by its very nature compels the framing of demands that liberal law reform might be able to deliver. Having done that, those demands must be reduced again and again until they are polite and realistically attainable requests: requests that might find their way through the maze of impediments to law reform. Polite requests for recognizably legal outcomes, preferably those requiring no additional funding that have been shown to be effective 'elsewhere'. …