LEGAL STUDIES

Tougher Sentencing Laws for Serious Sexual Assault

During a religious Ramadan sermon in October 2006 in Sydney, Sheik Al Hilali – the nation’s most senior Muslim cleric – blamed immodestly dressed women who did not wear Islamic headdresses for being preyed on by men and likened them to abandoned “meat” that attracted ferocious animals. Sheik Hilali further stated that “If you take out uncovered meat and place it outside on the street, or in the garden or in the park, and the cats come and eat it, whose fault is it, the cats or the uncovered meat?” His statement outraged both Muslim women leaders and the wider Australian community, as the Sheik’s comments alluded to the infamous Sydney gang rapes, involving the ringleader Bilal Skaf. The Sheik suggested that the attackers were not entirely to blame and the judge had no “rahma” (mercy) when handing down the sentence. The Sheik was “normalising immoral sexual behaviour” by comparing women to meat and men to animals and entirely blaming women for being victims. In an assessment of this particular case, it will be deduced that the legal system is effective in achieving justice for both the individual and society to a moderate degree, however there is much more that needs to be done in order to obtain complete morality.

Sexual assault is defined as ‘sexual intercourse without consent’ under the 1981 NSW Crimes Amendment (Sexual Assault) Act, whilst serious sexual assault often alludes to aggravated sexual assault (or in company). The aim of the legal system’s response to serious sexual assault is, to a moderate degree, achieve justice for victims of sexual assault and uphold society’s values. This can be seen through an analysis of the problems serious sexual assault has raised in the criminal justice system, a review of current legislation and proposed changes in legislation concerning serious sexual assault and an evaluation of the effectiveness of the legal system in achieving justice for both the individual and society, all in close relation to the key perpetrators: Mohammed and Bilal Skaf, who were found guilty on more than 14 counts of assault and serious sexual assault. In particular the cases of Regina v Skaf, Ghanem & Hajeid (2004) (referred to as ‘Skaf Case 2004’) and Regina v Bilal Skaf; Regina v Mohammed Skaf (2006) (referred to as ‘Skaf Retrial 2006’) will be examined.

Serious sexual assault crimes raise several ethical dilemmas within the criminal justice system, particularly considering the psychological trauma experienced by victims. According to the 1995 Women’s Safety Australia Survey, less than 30% of serious sexual assaults are reported to the police. This figure is further decreased due to the significant decline in numbers during the trial process. Initially, a victim’s decision to not report the incident to the police is motivated by the fear that they will not be believed, questions raised about the victims credibility and trustworthiness, uncertainty that a crime had been committed, self-blame and self-pity, humiliation or an expectation that going through the criminal justice process will be as traumatic as the incident itself. Attrition at the prosecution stage often occurs when the victim finds the process of questioning significantly demanding psychologically and often they are too fearful to confront the accused. In Judge Finnane’s sentencing remarks in the Skaf Case 2004, he described each defendants’ case as “…an attack [of] the identification evidence of each of the complainants”. He went on to state that “…it was done at very great length and I have no doubt that it increased the suffering of each of the complainants”. As such, the criminal justice system often faces a balance between sensitivity to the victims and determining proof of sexual assault, which is heavily based on the requirements of investigations and forensic evidence.

In addition, when addressing serious sexual assault, consent becomes another significant issue as there is no agreed upon definition of ‘consent’ documented in the Crimes Act (1990) NSW. In a jury study conducted by the Australian Institute of Criminology in 2005, it was found that jurors were significantly more likely to become confused by the concept of consent, despite the explanation being provided by the judge. Often the case transforms into an issue of consent, where the testimony of the victim is argued against the word of the defendant. The victim may state that there

was no consent given, but the defense reporting unclear or ambivalent consent or that consent was obtained. In his sentencing remarks in the Skaf Case 2004, Judge Finnane indicated that the offender “chose to mount the entirely false case that each of the complainants was a willing, if not eager sexual partner. This case was put to each of the complainants and I’m sure, increased the sense of anguish that each felt”. The issue of re-traumatising a victim via a trial and difficulties defining consent and its guidelines, has become an ongoing issue within the courts and within the media. So much so, that consent and ambiguous consent must be addressed in order to achieve both justice and a fair trial for both the mental welfare of the victim and a clear understanding of the mens rea of the accused, to allow the jury to reach an appropriate verdict.

Tougher sentencing laws for serious sexual assault have evolved through the implementation of legislation through statute law, including the NSW Crimes (Sexual Assault) Amendment Act (1981). Consequently, laws were introduced to protect complainants from being questioned about their sexual history and experiences, marital immunity to rape and the corroboration warning (the reliability of witness evidence) were abolished so that it was no longer necessary for judges to produce it. After the increase in penalties for sexual offences in 1989 [Crimes (Amendment) Act 1989], the Act was amended in 2001 [Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001 NSW] to insert the new offence of aggravated sexual assault in company within the Crimes Act, with the maximum sentence of life imprisonment. This formation of a new ‘category’ of crime was greatly influenced by public uproar to the Skaf Case (2004) demanding harsher penalties for the accused.

The Skaf Cases were crucial for introducing legislation to: a) decrease the trauma experienced by victims of serious sexual assault when testifying in court by confronting the perpetrator and re-telling specifics of the assault; and b) make it simpler to convict perpetrators of serious sexual assault. In March, 2004, two years after both Mohammed and Bilal Skaf were found guilty of aggravated sexual assault in company, receiving 55 and 23-year prison sentences respectively, the Criminal Court of Appeal (CCA) discovered that two jurors had visited the crime scene during the trial. The CCA suppressed the convictions of both men and ordered a retrial. However in 2005, the charges were set to be dropped after a victim informed the DPP she could not face the trauma of a retrial. As a result, the State Government amended the Criminal Procedure Act (1986) to the Criminal Procedure Amendment (Evidence) Act (2005), to allow serious sexual assault victims’ transcript evidence to be used as evidence for trial. Changes were also made to the NSW Jury Act [Jury (Amendment) Act 2004], providing harsh penalties for juries who conduct investigations during the course of trial. Also in the course of the trials, one defendant refused counsel and remained without representation, claiming that “…all lawyers are against Muslims”. This led to the litigious prospect of the defendants being able to cross-examine the victims themselves, a situation that would undoubtedly cause significant psychological trauma to the victims. This situation was further prevented by the implementation of the Criminal Procedure Amendment (Sexual Offence Evidence) Act 2004, which prohibits the cross examination of victims by an unrepresented accused person.

In October 2006, the NSW Attorney General announced proposed legislation to reform jury warnings and directions concerning delay in reporting sexual assault. In the same month, he also announced that there would be a proposal defining consent released for community consultation. As serious sexual assault becomes a highly publicised issue within the media, new laws reflecting the views of society are adapted to protect the victims of the crime and introduce tougher sentencing standards.

It is through the continuous awareness of public opinion that the legal system achieves justice for both the individual and society in relation to serious sexual assault. The link between the law and public is often the media, as shown by its significant role in the Skaf cases. Enormous public outrage fuelled by the media forced former Premier Bob Carr to pass the Crimes Amendment (Aggravated Sexual Assault in Company) Act (2001). In 2005, the decision by three Supreme Court Justices to cut the gang rapists’ sentences up to 18 years on the basis that their crimes did not belong to the “worst class of case” drew condemnation from the NSW Opposition, and a promise by

the Government to consider a High Court appeal. The Skaf Retrial in 2006 that significantly raised the rapists’ sentences, was met with community relief, indicated by newspaper headlines from the Sydney Morning Herald in October that year, ‘Taking out the Trash’. The constant debate and volatile nature of the Skaf trials supports the concept of the law as a reflection of values upheld by the people it governs, and in this example, the legal system has responded effectively to both victims of rape and the wider society.

The State also uses a variety of initiatives in order to achieve justice on an individual level for victims of serious sexual assault and further educate wider society. It has focused on strengthening relationships between the health sector, sexual assault services and legal services across Australia. Interagency protocols have been developed, setting best practice standards for the provision of services to victims of sexual assault, with the National Association of Services Against Sexual Violence publishing the National Standard of Practice Manual for Services Against Sexual Violence in 1998.

However, the legal system has also failed in aspects of the law requiring the maintenance of these new initiatives. The evaluation of the child sexual assault special jurisdiction in 2005 by the Bureau of Crime Statistics and Research noted that the CCTV and remote witness facilities experienced technological problems and caused delays, that children were still subject to overly long and difficult questioning and that many judges did not intervene to control aggressive questioning. In 2005, a specialist sexual assault court in NSW was proposed by the Criminal Justice Sexual Offences Taskforce to introduce new and tougher jurisdiction, handle cases with greater sensitivity to victims and limit media attention such as that seen in the Skaf cases. Further measures to improve the handling of serious sexual assault cases in the criminal justice system, such as a Specialist Sexual Assault Court in NSW will be undertaken only when the State can increase the effectiveness of current poorly maintained mechanisms for achieving justice.

As a result, the legal system has immensely improved the criminal justice system in its’ response to serious sexual assault and in achieving justice for both the individual, the perpetrator and society. This is reflected by measures undertaken to combat common problems associated with sexual assault such as attrition and consent. Legislative changes are the key mechanism for implementing these measures and continuously adapting to changing societies, victims and therefore contexts. The legal system has effectively responded to public opinion through the media and the development of initiatives, although poorly maintained initiatives still must improve.