SBN 0-646-36771-4

© The Office for the Director of Public Prosecutions and Yarrow Place Rape and Sexual Assault Services. Government of South Australia

Reviewed and reprinted February 2006

This booklet is to provide guidance and assistance and is therefore necessarily broad and general in the information given. It is not a substitute for advice or consultation from any of the services contained in this booklet about individual cases.

WHAT CHOICE DOI HAVE?

Witness Assistance Service

Information for People Who HaveExperienced a Rape or Sexual Assault

Foreword by the Attorney General “What Choice Do I Have?”

Many sexual assaults go unreported, perhaps because, for the majority of these crimes at least, the victim and offender are acquainted. Alas, there are also many myths and

misunderstandings about sex-crimes. Many of these myths blame the victims and make excuses for the offenders’ behaviour. These myths are one reason so many victims find it hard to talk about what happened, or to report the crime to the police.

This booklet condemns the myths and clarifies the misunderstandings. It tells victims about their rights and choices, explains the forensic medical procedures and outlines the investigative and legal processes.

Victims of sexual assault do not always suffer serious physical injuries. However, these crimes frequently have long-term impacts on victims’ health and well-being; each victim has her or his own experience, influenced by her or his unique combination of personal experience, social and cultural background and life-skills, as well as mental health.

It is common for victims of sexual assault to have a flood of feelings, such as anger, fear, anxiety and helplessness. These feelings are normal after such a horrific attack. However, it is important that victims seek help if feelings become overwhelming. Long-lasting feelings of restlessness, worthlessness, guilt, and the like, can develop into depression and other mental illnesses, such as panic disorders and post-traumatic stress disorders. Victims’ feelings of helplessness and despair can also lead to self-harm and even suicidal thoughts.

This booklet looks at the reactions to, and impact of, rape and other sex-crimes. It gives victims advice on coping and where to get help. It also gives advice to those close to victims on meeting victims’ needs.

It was written by people who help victims of sexual assault. Daily, these people make sure that victims know how to get information, counselling and assistance when and as they need it. This booklet does not replace their vital work. It does mean, however, that victims can take useful information with them as they try to answer the question: What choice do I have?

I thank all those who have contributed to helping victims answer this question. Their clear message, which I strongly endorse, is that it is never the victims’ fault. Rather, the sex offender is always responsible for his or her behaviour. You have done nothing wrong. You have nothing to feel ashamed about.

Michael AtkinsonAttorney

CONTENTS

Introduction ....................................................................................................................4

A Note About Language .................................................................................................4

What Is Sexual Assault? .................................................................................................5

A Social Understanding of Sexual Assault ....................................................................6

Myths and Facts About Sexual Assault ..........................................................................6

Reactions and Impact .....................................................................................................8

Impact on Family and Friends .....................................................................................10

Coping .......................................................................................................................... 11

Rights and Options ....................................................................................................... 11

Medical Care Following a Sexual Assault ...................................................................13

What Is Counselling? ...................................................................................................17

Making the Decision to Report to Police .....................................................................18

Court Room Layout .....................................................................................................20

The Legal Process ........................................................................................................21

Flowchart - The Legal Process ....................................................................................26

Vulnerable Witness Provisions ....................................................................................27

Victim Impact Statements ............................................................................................28

What Is Criminal Injuries Compensation? ...................................................................29

Declaration of Victim Rights .......................................................................................30

Resources .....................................................................................................................33

INTRODUCTION

This booklet is designed to give people who have experienced sexual assault information about the following:

- what sexual assault is.

- some of the myths and facts about sexual assault

- the impact of sexual assault

- medical, legal and support options/rights

- services you can use for information and support.

By providing you with information about your rights and options you will be able to make informed decisions and choices that are in your best interest.

A NOTE ABOUT LANGUAGE

Throughout this booklet, we sometimes imply by the language used that victims of sexual assault are women and that all sexual offenders are men. That is not quite accurate.

Studies in the area of sexual assault show that it is men who most commonly perpetrate violence against vulnerable groups of people such as women, young people, children, and gay, lesbian, bisexual, transgender, transexual and intersex persons.

However sexual assault occurs in all socio-economic, cultural and linguistically diverse backgrounds.

Men can be victims of sexual assault too. Most often, the perpetrator is another man. This does not necessarily mean that either the victim or the perpetrator is homosexual (gay). In a small minority of cases, the perpetrators of sexual violence are women.

It is important for men who have experienced sexual assault to know that the services and options described in this booklet are available to them too.

The term sexual assault is used to cover any sexual crime including rape, unlawful sexual intercourse and indecent assault.

WHAT IS SEXUAL ASSAULT?

Sexual Assault is any unwanted or forced sexual behaviour, for example, touching someone in a manner that is indecent or having sexual intercourse with a person who

has not consented. This type of behaviour is illegal.

Sexual intercourse is illegal if it occurs:

• without consent (commonly referred to as Rape)• and/or if it occurs with someone who is under the age of 17 years (referred to as

Unlawful Sexual Intercourse)

(17 is the legal age of consent for sexual intercourse in South Australia)

Sexual intercourse has a very wide definition at law and includes both males and females. It includes penetration of the:

• mouth with a penis;• vagina with a penis;• vagina with any body part or object;• anus with any body part or object

Penetration may only be slight, and ejaculation need not occur. Physical resistance is not necessary to demonstrate lack of consent. A person cannot consent where they are forced or threatened, or where they are under the influence of alcohol, drugs and/or prescribed medication.

Note: This information can be used as a guide to understanding what sexual assault involves however it is up to the Police and Director of Public Prosecutions to decide what criminal charges (if any) are appropriate. If you are unsure as to whether any particular behaviour is illegal, please refer to the number for the Sex Crimes Investigation Branch (SCIB) at the back of this booklet.

A SOCIAL UNDERSTANDING OF SEXUAL ASSAULT

Sexual assault is a violation of trust, an exploitation of vulnerability and an abuse of power. This type of crime is not primarily a sexual act, but a crime of violence, terror

and humiliation which is usually perpetrated by men against women, young people, children and other men.

The perpetrator uses power to control and dominate, and sex is used as a ‘weapon’ to violate and humiliate the victim. For the victim the experience is traumatic, can be sudden, arbitrary and life threatening. Often victims are unable to prevent the sexual assault or may even be forced to participate against their will.

Sexual assault victims are violated and rendered helpless by another’s need for power and control.

MYTHS AND FACTS ABOUT SEXUAL ASSAULT

Many myths and misconceptions exist about sexual assault. These myths commonly blame the victim and/or make excuses for the offender’s behaviour.

REMEMBER THERE ARE NO EXCUSES FOR SEXUAL ASSAULT.

People who have been sexually assaulted may find it difficult to report the crime to the Police or speak about their experience because of the many myths and misconceptions about sexual assault.

Some of these myths include:

MYTH FACTAll sexual offenders are strangers Most sexual offenders are known to the victim - e.g.

father, relative, partner, friend, boyfriend or boss.

�W�H�

b& ��b@�ö ���������$��b&%��b��`��� �Ð

Sexual assault is an impulsive act Many sexual assaults are planned. The offenders have intention to harm another person. They often take advantage of a person who is in a vulnerable situation.

All sexual assaults occur at night, on a dark street or a park

Many sexual assaults occur during the day. Over half of sexual assaults reported take place in the victim’s home or in the offender’s home.

It is a man’s right to have sex with his wife or partner whenever he wants

Forcing a person to have sex when they are not consenting is a type of sexual assault.

Women provoke sexual assault by the way they dress or behave

No person asks or deserves to be sexually assaulted. Sexual offenders use a variety of excuses to justify their behaviour.

People who are drunk or intoxicated are asking to be sexually assaulted

Being under the influence of drugs or alcohol makes a person vulnerable and unable to give consent. Being in a vulnerable position does not imply consent.

If the victim didn’t scream or fight, it could not have been sexual assault

Many victims are not able to scream. They have been threatened and so have become paralysed with fear, which means they are unable to fight back. They may also fear further violence from their attacker if they struggle.

A person is entitled to have sex with another if they take them out and pay for the meal.

Paying for drinks or meals does not entitle a person to have sex with the other person when s/he does not want to. Sex that is unwanted, forced, bullied or manipulated is sexual assault.

If a wo/man agrees to go on a date with another person s/he agrees to have sex afterwards

Agreeing to go on a date does not mean agreeing to have unwanted sex.

Men cannot be sexually assaulted because they are strong enough to defend themselves

Sexual assault can happen to anyone, including men regardless of physical size and strength.

Anyone can prevent sexual assault if they really want to

This belief assumes that no one can be forced into sex. Most sexual assaults involve threats of physical harm or actual physical force.

In some cultures sexual assault against women, young people and children is acceptable

In Australian society sexual assault is not acceptable and it is against the law. It is a crime to perpetrate sexual violence against another person - male, female, young or old.

Men who sexually assault people are “sick or pervert” Sexual offenders are mostly men from all socioeconomic backgrounds, professions and nationalities. There are no typical sexual offenders. Most sexual offenders look and behave like ordinary men and lead ordinary lives.

Men who sexually assault other men are gay The men who sexually assault are often heterosexual. They often have access to consenting sexual relationship, but choose to sexually assault other men as part of an act of violence and need for power and dominance.

MYTH FACT

REACTIONS AND IMPACT

Sexual assault is a traumatic experience. After being sexually assaulted many people describe experiencing a range of reactions. These reactions are normal and to be

expected.

They may include the following:

SHOCK, NUMBNESS AND DISBELIEFA person’s reaction to trauma can be unique and varied. Some people may appear calm and rational, whilst others can be anxious and disoriented.

FEARFULA lot of things that felt safe before may no longer seem that way. You might feel scared or threatened in familiar places or situations - being at home, going out, being in a crowd, or walking to work.

POWERLESS & HELPLESSSexual assault is a violation of your right to control what happens to you, your body, your emotions and your senses. It can leave you feeling that nothing you do or say matters any more.

ASHAMED & EMBARRASSEDYou might feel that you are different from everybody else or that people will know that you have been sexually assaulted.

ANGRYYou might be angry at the attacker or feel that no one can ever be really safe because there are those who sexually assault people. Sometimes anger is wrongly directed at yourself because you think you should have been able to avoid the attack. The list of “if only’s” can be endless and this can leave you feeling guilty/angry even though you are in no way to blame.

SELF BLAMEYou might also find that you search through everything that happened prior to the assault looking for a reason for why it happened. Remember that your behaviour did not cause the assault. The only person responsible for the assault is the person who assaulted you.

CONFUSEDYou may have a lot of confused emotions, cry a lot or you may just feel numb. Sometimes people want to forget all about the sexual assault or find that it is too hard to talk about it at first.

DIRTYSome people feel dirty and unclean and may spend time trying to physically wash that feeling away.

RELATIONSHIPSBeing sexually assaulted may affect how you feel about relationships. It is very important that you regain control - establishing with whom, where, how and when you have contact. You may not want to have sex or be touched even by people you are close to, or you may feel a great need for physical contact and comfort.

PHYSICAL REACTIONSYou may experience headaches, muscle tension, stomach upsets, sleeping difficulties and changes in appetite. You may also experience physical pain as a result of the sexual assault.

It is important to remember that if you have experienced sexual assault the reactions mentioned previously are very normal. You may need to give yourself time to recover and accept that your feelings and emotions are likely to change from one day to the next.

RECOVERY

You may or may not experience all or some of the above mentioned reactions. Each person responds to, deals with and recovers from their experience differently. It can depend on the person’s age, the circumstances of the assault, their coping strategies and the response from those who support they seek. Talking to someone soon after the assault may help you to deal with the emotional impact better allowing you to work towards healing and recovering from your experience.

IMPACT ON FAMILY AND FRIENDS

The following information is for you to read, to assist you to understand the possible impact on the people you might choose to tell about the sexual assault.

Family and friends may react in the following ways:

• feel upset or confused • want you to report the assault to police

• want you to tell them exactly what happened• blame you or themselves• encourage you to forget about it• push you to seek help e.g. counselling• feel powerless, angry or guilty• or they may not know how to help you or what to say

What a person who has experienced a sexual assault may need:

• validation of their experience and reactions• to be believed (and not blamed) • to be listened to• to feel safe• a non-judgmental attitude from others• understanding of their trauma• to be in control of what is happening• to decide for themselves how they want to deal with the sexual assault- physically, emotionally and/or legally • permission to talk about the assault at their own pace• encouragement but no pressure to talk about feelings• to be supported

COPING

You have been through a traumatic experience and it is therefore normal to feel the effects on your body, mind and emotions in your interactions with others and in your beliefs

about your self and the world. Given the trauma you have experienced, it is important to take care of yourself and access the support available to you.

The impact of trauma reactions change over time. People may feel better as their body and mind adjust to what has happened to them.

You may already have ways of coping with stress that work for you.

Here are some suggestions that may add to your own ideas:

• talk it through with someone you trust eg. friend, counsellor, family member• seek out support from people who are important to you, try not to isolate yourself• record how you are feeling• get plenty of rest, even if you find it difficult• make time for relaxation• get regular exercise such as walking, cycling or swimming• try to eat regular and well balanced meals• after an assault you may find your use of alcohol, drugs or other stimulants such as

coffee, cigarettes and chocolate increases. It is important to keep in mind other coping strategies may be more healthy, and benefit you in the long term

• take time out from your usual activities, however, continuing some of your usual routine is important

RIGHTS AND OPTIONS

After being sexually assaulted you may be faced with a number of issues that you will need to make decisions about:

• Do I need to see a doctor?• Should I report the sexual assault to the police?• Will I need counselling?

It is important that you know what is available to assist you to understand the counselling, legal and medical options available to you.

In the metropolitan area you have the opportunity to meet with a crisis worker/counsellor from Yarrow Place Rape and Sexual Assault Service to discuss the above options. In rural areas the process is different, however, the information about your rights and options can be provided over the telephone.

Some of the options you have are linked with timeframes, for example when emergency contraception needs to be taken and when a forensic medical examination is possible.The sections entitled:

• medical care following a sexual assault• making the decision to report to police • counselling

will provide information so you can make your own decisions about how you wish to proceed or deal with the sexual assault.

Remember you have the right to:

• ask questions• have information to help you make decisions• decide what happens to you• choose the best option for yourself

Mandatory ReportingIf you are under 18 years old, some people such as doctors, police, teachers, social workers and youth workers have to report information about sexual assault to the Child Abuse Report Line (CARL), which is part of the Department for Families and Communities (DFC). Workers from DFC may get in touch with you, especially if your safety is at risk. DFC will also forward the information about the sexual assault to the police. The police may contact you to discuss what may happen.

ConfidentialityYarrow Place clients have their right to privacy and confidentiality respected. Any limitations will be discussed with you.

MEDICAL CARE FOLLOWINGA SEXUAL ASSAULT

1. Medical Examination for the purpose of a health check

If you have experienced a sexual assault you may have health concerns that you would like to discuss with a doctor and you may want the doctor to check that you are alright. This type of medical care is called a health check. It is done for your purposes, and will only take place if you request it.

Common health concerns that you could discuss with the doctor:

1. Injuries

It is quite common to have some minor bruising or scratches from a sexual assault. The doctor can check these injuries and advise you about treatment and the length of time it may take for the injuries to heal.

It is less common to have a serious injury but if you have, for example, been hit on the head or have significant pain, it is really important to see a doctor to have this checked out.

2. Concerns about pregnancy

If you are not using contraception at the time of the assault, you may want to take the Emergency Contraceptive Pill - ECP (also known as the morning after pill) to reduce the chance that you will get pregnant.

The ECP is most effective when taken as soon as possible after the unprotected sex but can be taken up to 5 days after. You can get them from the chemist and do not need to see a doctor. A doctor can prescribe a less expensive alternative if this is an issue.

If you are pregnant at the time of the assault you may be worried about your baby. It is unlikely that your baby will have been harmed, but you can ask the doctor to check that your baby is alright. If you have any bleeding or abdominal pains it is very important that you see your doctor.

3. Concerns about sexually transmitted infections (STI’s)

In South Australia the chance of getting a sexually transmitted infection, including HIV/AIDS, from a sexual assault is very low.

There are medications available that can help to protect you against some sexually transmitted infections. You can ask the doctor about these medications and decide if you would like to take them.

The doctor will not be able to tell you at the time of the assault whether you have developed a sexually transmitted infection from the assault. You will need to have follow-up STI testing to check this (see section on follow up medical care).

4. Other health concerns

You may want to talk to the doctor about concerns such as sleeping difficulties, eating problems, feeling sick, aches and pains and difficulties going to the toilet.

You can ask the doctor for a certificate if you think you will need to take some time off work.

If you are certain that you do not want to take police action in relation to the assault but would like a health check, you could consult a doctor at Yarrow Place (in the metropolitan area) or your own doctor depending on what makes you feel more comfortable.

If you are considering police involvement, a medical examination for the purpose of collecting evidence (a forensic medical examination, FME) will be important. A health check can be done as part of the forensic medical examination.

These examinations (FMEs) are done by doctors who have been trained to provide this service and in Adelaide are usually done by a Yarrow Place doctor.

2. Medical Examination for Evidentiary Purposes (Forensic Examination)

When reporting the incident to the police, they will discuss with you the need for a medical examination for evidentiary purposes. This examination will only take place with your consent.

This is where a doctor conducts a thorough physical examination and collects evidence that may help the police in building a case against the person who sexually assaulted you. Many people who have experienced sexual assault do not suffer physical injuries. It is important to remember you don‘t necessarily have to be injured in order for a medical examination to take place and be forensically useful.

The medical examination should take place as soon as possible. It is less likely as time passes that there will be any physical evidence for the doctor to collect. Remember that you always have the option of having the examination and then deciding at a later date whether you wish to proceed with police investigation.

With your permission, the doctor will take a brief history from you about the assault, so that the doctor knows what specimens need to be collected. The doctor will ask you about any soreness or injuries you may have, ask you to put on a gown and will check your body for injuries and make a note if any are found.

The doctor may also take samples of: • head hair• pubic hair• finger nail scrapings• blood sample• anal swab• oral swab• vaginal swabs (similar to a pap smear)• penile swab

Remember, swabs will only be taken with your consent from areas which have had physical contact with the offender. The examination may be stopped at anytime if you are not comfortable with proceeding. This examination may take up to an hour and a half.

Your clothing may also need to be taken as evidence. The evidence is then packaged and sealed securely until you have signed an authorisation to release the clothing to police.

It is important to be aware that samples taken as evidence can or may:

• Support the type of sexual assault that occurred, e.g. oral, anal or vaginal penetration;

• Support (corroborate) your explanation of what took place;• Identify the person who sexually assaulted you.

It is also important to note that all the information recorded by the doctor, including personal medical information, will (if you have consented to police action) be passed on to the police and lawyers involved in the legal case.

The offender may also have a forensic medical examination based upon police request if charged close to the time of the offence. This is conducted by a police Doctor not a Yarrow

Place Doctor.

3. Follow up medical care

Follow up medical care is provided so that you can talk with the doctor about any health concerns you may have had since the assault. The first follow up appointment is generally offered 2 to 3 weeks after the assault.

At this appointment the doctor can:

1. Check that injuries have healed.2. Do a pregnancy test if required. This is important if your period is late or if the period

that you have had since the assault seems different to normal.3. Take swabs or a urine sample to test for some sexually transmitted infections.4. Give you the opportunity to talk about health concerns such as poor sleeping or

problems eating and discuss how best to manage them.

The second follow up appointment is generally offered about 3 months after the assault. The doctor can check with you how you are getting on and can offer you a blood test for HIV/AIDS, hepatitis B and C and syphilis.

If you have concerns that you would like to discuss at times other than these, contact your doctor for an appointment.

WHAT IS COUNSELLING?

Because sexual assault can be a traumatic experience, it is often useful to have someone to talk to about your feelings, fears and concerns. Professional counselling can offer

you someone to talk to and seek information and advice from, in a safe and confidential manner.

Counselling is available on an individual basis or in a group situation with other people who have experienced sexual assault. Counselling is not about re-living the police witness statement or assault experience, but focussing on feelings and reactions that you may be experiencing as a result of the sexual assault, and how are you going to cope with these feelings and reactions.

You may wish to have counselling soon after the sexual assault, or sometime later depending on your needs.

Deciding to see a counsellor does not mean you have a problem, but rather you are experiencing normal reactions that you need to talk about.

Some people find that with the support and help of friends and family, they do not need professional counselling.

For information regarding counselling options, please refer to the ‘Resources’ section at the end of this booklet.

MAKING THE DECISION TOREPORT TO POLICE

People who are victims of sexual assault often have strong reasons for choosing to tell, or not tell, the police. People who decide to make a police report will often do so for the

following reasons:

• They believe that the offender should be made responsible for their actions• Reporting the offence may allow people to regain some sense of power and control• They do not want the offender to harm other people• To ensure their personal safety and future protection from the offender

Firstly you may make a detailed statement to the police. The police may use your statement to try to apprehend, and where possible, charge the person who sexually assaulted you. Your statement then becomes the basis of the police investigation and is a key part of any court proceedings.

Alternatively you may wish to talk to the police informally and anonymously over the telephone or in person. Or you may wish to talk to the police, make a crime report and then sign a statement saying that you wish there to be no further investigation.

If you request it - a female police officer will take your statement.

Making the statement may be very difficult and upsetting for you as the police officer will ask for a detailed account of the assault. Due to the amount of detail needed, it may take a number of hours to make your statement.

A support person such as a friend, relative or partner may accompany you to the Police station but they will be asked to remain in the waiting area whilst you give your statement.

When making a statement the police officer will explain to you why such detailed information is required for your statement. If you wish to know what will happen with your statement the police officer will be able to advise you.

If you would like a copy of your statement ask the police officer taking your statement.

Remember to read through your statement carefully and make any alterations as required.Your statement will then be forwarded to the Criminal Investigation Branch (CIB), which will investigate the matter. If you have not already met the Investigator(s) involved they

will contact and advise you of the progress of the investigation or if the offender has been arrested.

If you wish to know how the investigation is progressing then you may contact the Investigator in charge of the case or the Victim Contact Officer at your local Police Station.

If you have made a formal statement but then decide that you do not want police action, you need to inform the police. You will be asked to complete a form indicating your wish not to proceed with police investigation. At any time you will be able to reactivate the investigation should you change your mind. However it may affect the investigation and create problems in proving the offence if it is left too long.

It is also important to know that withdrawing the charges may affect any claim for compensation.

It does not matter when the sexual assault happened. If you report it to the police they will undertake a full investigation. However, it is important, for the sake of the investigation that the sexual assault is reported as soon as possible after it occurred.

If a victim wishes to report to police anonymously their request will be respected. A report can be taken that in no way identifies the victim.

All anonymous reports to police will be referred to the Sexual Crime Investigation Branch.

SA Police strongly urges anyone who has experienced a sexual assault to make contact to discuss the options available to them.

For

a ‘V

irtu

al T

our’

of

Sout

h A

ustr

alia

Cou

rts

plea

se lo

g-on

tow

ww

.cou

rts.

sa.g

ov.a

u

CO

UR

TR

OO

M L

AY

OU

T

THE LEGAL PROCESS(Explanation of the Flow Chart)

CRIME

A sexual assault is committed.

COMPLAINT TO POLICE

The sexual assault is reported to the police.

INVESTIGATION BY POLICE

A detective is allocated to investigate the matter. The detective will speak to the victim, other witnesses and the accused.

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS The Office of the Director of Public Prosecutions office (ODPP) is the independent statutory prosecuting authority for the State. The ODPP employs solicitors who prepare cases for trial and barristers called prosecutors who prosecute the case in court.

All crimes are considered to be a crime against the State. The ODPP acts for the State and therefore any legal costs are the responsibility of the State government.

The solicitors at the ODPP may provide the police with an opinion as to whether or not a person should be charged. If charges are not laid, it will be explained to you by the solicitor and the ODPP Witness Assistance Officer.

A solicitor, on receiving all of the evidence from police, may decide not to proceed on the basis that there is no reasonable prospect of conviction. This is not to suggest that a crime has not been committed, however, it would be difficult to prove in the criminal court beyond reasonable doubt. In some cases, you may decide that you do not want to proceed with the case. If this is the case, you should contact the police investigating officer or the ODPP solicitor as soon as possible.

The ODPP solicitor may decide to proceed with the case, but with “lesser charges”. Reasons for this decision will be discussed with you. You may not agree with the decision, however, the solicitor, police officer and / or witness assistance officer are there to answer any of your questions. In some cases, the case might be handled by a police prosecutor in the Magistrates Court.

CHARGING THE ACCUSED • The alleged offender is charged by the police when there is reasonable cause to

believe that a crime has been committed by the person.• The alleged offender is then summonsed to appear at the Magistrates Court for a

hearing.• A summons (a written document) advises the alleged offender when to appear in court

and the offence (s) charged.

ARREST OR SUMMONS AND BAIL APPLICATION

• If the alleged offender is arrested, he /she is entitled to apply for bail.• If bail is granted, the offender may be released.• You will be notified by either police or the ODPP solicitor of bail applications and

outcomes.• Bail is usually granted by the court unless there are strong reasons why the application

should not be granted.• If the application for bail is not granted, then the alleged offender is held or remanded

in custody until the court hearing.• An alleged offender may re-apply for bail if his / her circumstances change.

Bail conditions can be arranged to ensure your safety should bail be granted to the alleged offender. If you have fears for your safety, you should discuss these with the police investigating officer as soon as possible.

Bail conditions can cover issues such as: • the alleged offender not to contact you or other witnesses, either directly or

indirectly,• the alleged offender is to reside at a certain residence;• the alleged offender is not to come within a certain distance of the victim’s home.

MAGISTRATES COURT

The Magistrates Court hearing provides an opportunity for the defence lawyer (the alleged offender‘s lawyer) and ODPP solicitor to set a time for filing of the declarations (statements of witnesses).

This is a brief appearance and you will not be required to attend. The process is that the ODPP solicitor hands all of the available declarations over to the court and defence. The accused will then on a later date answer the charge/s, that is, they are read out in court and the response is either “guilty” or “not guilty”.

COMMITTAL PROCEEDINGS

Committal Proceedings are proceedings held in the Magistrates Court by way of preliminary examination for the court to decide whether there is sufficient evidence for the matter to be sent to a higher court for trial. This procedure is one which takes place by the filing of written witness statements before the court.

It is not usual for a witness to give oral evidence in the Magistrates Court. Oral evidence is not normally given unless the court decides that special reasons exist. Where the witness is a victim in a sexual offence the court will not allow oral evidence to be given “unless satisfied that the interests of justice cannot be adequately served, except by doing so”.

COMMITTAL

If the Magistrate finds that there is sufficient evidence to put the defendant on trial, the case is sent to the District or Supreme Court and an arraignment date is set. Whilst the case is in the Magistrates court you may be asked to attend a meeting with the ODPP solicitor and ODPP Witness Assistance Officer. This will be an opportunity to discuss the progress of the case, any questions you may have or refer you to appropriate support or counselling services if required. This is an opportunity to discuss any concerns you might have about giving evidence in a trial.

ARRAIGNMENT

The arraignment is the reading of the charge in a higher court. The accused must indicate his or her plea to the charges in the District or Supreme Court, and a time is set for a Directions Hearing. Given that this is only a brief appearance, it is not necessary for you to attend however you may do so if you wish.

The accused may nominate at this stage to be tried by Judge alone or by Judge and jury.

DIRECTIONS HEARING

The Directions Hearing is not open to the public. It is a hearing between the lawyers and Judge in the presence of the accused in a closed court. An agreed date is set for the trial and final discussions are held in relation to all the information being presented to defence and the court by the prosecution. The time taken between the arraignment and the directions hearing may vary depending on the case. However, usually it is up to four weeks.

Should you have any questions about the above process, you should contact the ODPP Witness Assistance Officer, ODPP solicitor allocated to the case or the investigating police officer. You will be advised of the trial date by the investigating police officer or by the ODPP staff.

A GUILTY PLEA

If the accused pleads guilty at any stage prior to the trial, then he / she will be sentenced, and you will not be required to give evidence at a trial.

TRIAL

Shortly before the trial commences, you will be required to attend the ODPP office and speak to the prosecutor who will be prosecuting the case in court. This meeting is called a “proofing”. The purpose of this meeting is:

• to enable the prosecutor to discuss your evidence with you;• to clarify any questions you may have about giving evidence in court;• to clarify any special arrangements you require (see section on Vulnerable Witness

Provisions)

The prosecutor’s job is to prove the case “beyond any reasonable doubt”. The prosecutor cannot discuss other witnesses’ evidence with you. It is not their role to support you emotionally during the trial. This support could come from your court companion or counsellor, if you have one. It is important to remember that the prosecutor is not your lawyer, but the State’s lawyer. The prosecutor will often not be available to speak to you during the trial. However, the investigating police officer will also be at court and will be available to answer any of your questions.

Giving Evidence

On the day of trial, you may wish to wait with your court companion in a witness waiting room until you are called to give evidence. When you first enter the court room or Closed Circuit Television room (see section on Vulnerable Witness Provisions) you will be lead to the witness box by a Sheriff’s Officer and then the Judge’s Associate will ask you to swear on the Bible or give an affirmation (promise) to tell the truth and you can sit down. The prosecutor will then ask you questions to assist you in telling your story. This is called “examination in chief”. Following this, the defence lawyer will ask you questions about your evidence. This is called “cross examination”. It is the defence lawyer’s job to test your evidence and put forward the accused’s explanation of the events. The prosecutor may object to questions by the defence lawyer if the prosecutor considers them to be inappropriate according to law. You will not need to answer these questions if the Judge allows the prosecutor’s objections.

Remember when giving evidence in court:

• tell the truth;• speak clearly and take your time;• answer only the questions you have been asked;

• if you do not understand the question say so;• if you are unsure of the answer say so;• do not anticipate questions or jump in with answers;• state the facts, giving only your opinion when asked;• always call the Judge "Your Honour".

Remember that the prosecutor is unable to talk with you while you are being cross examined. Also the jury do not receive a copy of your statement. The purpose of your evidence is to tell them what happened.

The accused is not required by law to give oral evidence in court. If he / she chooses to give evidence, he / she will be cross examined by the prosecutor. After you have given your evidence, you are free to leave the court or you may wish to remain in the courtroom. Please speak with the prosecutor prior to trial about these options.

VERDICT

In trial by jury, an accused may be found guilty if 10 or more jurors find the accused guilty of the crime. In a trial by Judge alone, it is the Judge’s decision as to the verdict.

If the accused is found “guilty”, then he/she will be sentenced as he/she has been convicted of a crime. This usually occurs a few weeks after the trial ends. The accused may then be remanded in custody until sentencing, or may be granted bail until sentencing. If the accused is found “not guilty” by the jury or Judge alone then the accused is “acquitted” and is free to go.

An acquittal does not mean the court did not believe your evidence, but just that they were not satisfied “beyond reasonable doubt”. Sexual assault cases are sometimes difficult to prove beyond reasonable doubt. This is no reflection on you as a witness. If the verdict is not guilty, you are not able to appeal this decision, nor can the ODPP. The prisoner has the right to appeal against a guilty conviction.

SENTENCE

The prosecutor will give the Judge details of every prior offence (if any) of the accused and also a copy of the victim impact statement written by the victim. The defence lawyer will then make submissions for the accused and depending upon the circumstances of the crime, the prosecutor may or may not add further information for the Judge. The Judge makes a decision on the sentencing for the offender who has been convicted of a crime. The offender is able to appeal the sentence decided by the Judge, however, you do not have a right to appeal the sentence given. The ODPP has the right to appeal against a sentence if they believe the penalty is “manifestly inadequate”. This will only occur on rare occasions. It is your choice whether you decide to attend the sentencing hearing.

FLOWCHART - THE LEGAL PROCESS

VULNERABLE WITNESS PROVISIONS

Special provisions to assist victims of crime to feel more comfortable whilst giving evidence are available in the Magistrates, District and Supreme courts.

A Witness Assistance Officer (WAO) from the ODPP will have contact with you as the case progresses through the criminal justice system and if required can take you on a court familiarisation tour. The WAO is available to discuss any concerns or special requirements you might have about giving evidence and talk with you about vulnerable witness provisions available to assist you in court. The ODPP solicitor may then apply to the court for the vulnerable provision/s however any request can be made, revoked, varied or denied at the Judge’s discretion.

The vulnerable witness provisions available in the court include:

• having a court companion (support person who is not involved in the case) in court with you while you give evidence;

• placing a one way screen between you and the accused so that you can not see the accused while you give evidence;

• closing the court while you give your evidence so that members of the public and others are not permitted to be in the court room;

• use of closed circuit television (CCTV) so that you are not in the same room as the accused person when you give evidence. You are able to see the prosecutor, defence

lawyer and Judge and they can only see you via the television screen in court.

VICTIM IMPACT STATEMENTS

A Victim Impact Statement (VIS) is an opportunity for the victim of a sexual assault to tell the Court about the impact and effects of the crime. A VIS is provided to the

sentencing Judge after a guilty plea is entered by the accused, or after a guilty verdict is found by the Judge and or Jury, but before sentencing the accused.

The VIS may cover the following issues:

• emotional impact;

• financial loss or suffering (ie. time off work, employment issues);

• psychological trauma or stress (ie. panic/anxiety, depression) ;

• physiological (health) impact (ie. weight loss/gain, headaches);

• impact on extended family / friends (if appropriate);

• changes to housing / accommodation as a result of the crime;

• any other information that you believe the court should be aware of in relation to the impact of the crime.

Options for presenting the Victim Impact Statement (VIS)

There are several options available for presenting your VIS to the court;

(a) Attend court and read it out aloud yourself to the court

Closed Circuit Television (CCTV)

(b) Request that the Judge’s Associate (assistant) or someone else to read it out aloud in court on your behalf

(c) Ask the ODPP prosecutor to hand it up to the Judge in it’s written format for the Judge to read

The VIS must be given to the ODPP solicitor, Witness Assistance Officer or the investigating police officer before the date for submissions for sentence. A copy will be sent to the court and to the defence lawyer for the accused to read beforehand. The accused should not be allowed to keep a copy.

If members of the media are present in court and the VIS is read out aloud the media may report on its contents however the media is unable to publish any details that identify or tend to identify the name of the victim.

Further information and assistance with Victim Impact Statements (VIS)

For assistance and guidelines for preparing a VIS or to discuss options for presentation contact the following;

1. ODPP Witness Assistance Officer 2. Investigating Police Officer3. Solicitor or Prosecutor at ODPP.

(For contact details, refer to the ‘Resources’ section at the back of this book).

WHAT IS CRIMINAL INJURIESCOMPENSATION?

Criminal Injuries Compensation (CIC) is a government compensation made available to people who have been injured physically or psychologically as the result of a criminal

offence.

The Fund is collected through the Victims of Crime Levy which is included on all fines, for example, Traffic Infringement Notices.

If a victim of crime is compensated through the Victims of Crime Fund, the Attorney General can attempt to reclaim this money from the offender.

For a booklet on Criminal Injuries Compensation contact Yarrow Place Rape & Sexual Assault Service or Victim Support Service. You may also wish to contact the Manager, Victims of Crime, Debt Recovery, Attorney-General’s Department on telephone 8207 1687.

DECLARATION OF VICTIMS RIGHTS GOVERNING THE TREATMENT OF

VICTIMS IN THE CRIMINAL JUSTICE SYSTEM

The need for the Declaration arises out of local, national and international concern about the position of victims of crime in the criminal justice system.

The principles (see below) are not enforceable in criminal or civil proceedings; do not give rise to any right to damages for breach; and do not affect the conduct of criminal proceedings. However, public agencies and officials are authorised and required to have regard, and to give effect, to the principles so far as it is practicable to do so having regard to the other obligations binding on them.Principle 1A victim should be treated—(a) with courtesy, respect and sympathy; and(b) with due regard to any special need that arises— (i) because of the victim’s— • age; or • sex; or • race or ethnicity; or • cultural or linguistic background; or (ii) for any other reason.Principle 2If a victim feels a need for protection from the alleged offender, a person representing the Crown in bail proceedings should ensure that the perceived need for protection is brought to the attention of the bail authority.Principle 3A victim should be informed, on request, about the following:(a) the progress of investigations into the offence;(b) the charge laid and details of the place and date of proceedings on the charge;

(c) if a person has been charged with the offence—the name of the alleged offender;(d) if an application for bail is made by the alleged offender—the outcome of the

application and, in particular, any condition imposed to protect the victim from the alleged offender;

(e) if the prosecutor decides not to proceed with the charge, to amend the charge, or to accept a plea to a lesser charge or agrees with the defendant to make or support a recommendation for leniency—the reasons for the prosecutor’s decision;

(f) the outcome of the proceedings based on the charge and of any appeal from those proceedings;

(g) details of any sentence imposed on the offender for the offence;(h) if the offender is sentenced to imprisonment and later makes an application for

release on parole—the outcome of the proceedings and, in particular, any condition imposed to protect the victim from the offender.

Principle 4A victim should be informed, on request, about the following:(a) if the alleged offender absconds before trial—the fact that he or she has

absconded;(b) if the offender escapes from custody—the fact that he or she has escaped;(c) if the offender, having escaped from custody, is returned to custody—the fact that

he or she has been returned to custody;(d) if the release of the offender into the community is imminent—details of when the

offender is to be released.Regarding principles 3 and 4, a victim is not entitled to information that might jeopardise the investigation of an offence.

Principle 5A victim should be informed, on request, about procedures that may be available to deal with a grievance the victim may have for non-recognition or inadequate recognition of the victim’s rights under this Declaration.

Principle 6A victim who is to be a witness for the prosecution at the trial of the offence should be informed by the prosecution about the trial process and the victim’s rights and responsibilities as a witness for the prosecution.

Principle 7A victim is entitled to have any injury, loss or damage suffered as a result of the offence considered by the sentencing court before it passes sentence.

Principle 8A victim of an offence is entitled to make written submissions to the Parole Board on questions affecting the parole of a person imprisoned for the offence.

Principle 9A victim should be informed about health and welfare services that may be available to alleviate the consequences of injury suffered as a result of the offence.

Principle 10A victim should have access to information about how to obtain compensation or restitution for harm suffered as a result of the offence.Furthermore, if the prosecutor is empowered to make an application for restitution or compensation on behalf of a victim in criminal proceedings— (a) the prosecutor should bring that fact to the attention of the victim;

and

(b) should, if asked to do so by the victim— (i) make the application on the victim’s behalf; and (ii) bring to the attention of the court any relevant information provided by the victim in connection with the application.

Principle 11If a victim’s property is taken for investigation or for use as evidence, the property should, if practicable, be returned to the victim as soon as it appears that it is no longer required for the purposes for which it was taken.

Principle 12There should be no unnecessary intrusion on a victim’s privacy. In particular, a victim’s residential address should not be disclosed unless it is material to the prosecution or defence.

Principle 13A victim should be protected as far as practicable from unnecessary contact with the alleged offender and defence witnesses during the course of the trial and in criminal injuries compensation proceedings.

Principle 14A victim should only be asked to attend proceedings related to the offence if the victim’s attendance is genuinely necessary.

RESOURCESLEGAL

Police EmergencyPolice Attendance (24 hour service)

000131 444

Sex Crimes Investigation Branch – formerly Sexual Assault Unit (SAPOL)

8207 5800www.sapolice.sa.gov.au/crime/scib.htm

Office of the Director of Public ProsecutionsWitness Assistance Service• Information about court processes • Support and preparation for court

8207-1529 (metro)1800 505 404(country area)

www.ODPP.sa.gov.au

Department for Correctional Services Victims Services Unit

8226 9067

Attorney General’s DepartmentVictims of Crime Compensation Section

8207 1687

CRISIS SERVICES

Crisis Care (4-00pm to 9-00am Monday to Friday, all weekend and public holidays)

131-611

Lifeline (telephone counselling - 24 hours 131-114

Mental Health Services – 24 hours 13 14 65

SEXUAL ASSAULT SERVICES/COUNSELLING/HEALTH

Yarrow Place - Rape and Sexual Assault Service * Medical Service (including forensic examination) * Counselling - Support Group and Information

Seminars * Information about Criminal Injuries Compensation

8226-8777 (metro)

1800 817 421 (country area)

After Hours8226-8787

www.yarrowplace.sa.gov.au

Respond SA- adult childhood sexual abuse service. Country Caller – Toll free

8419 2000 1800 176 900

www.respondsa.com.au

Victim Support Service * Court Companions * Counselling * Information about Criminal Injuries Compensation

8231-5626 (metro)

1800 182 368(country area)

www.victimsa.org

SHine SA Sexual Healthline 8364-04441800 188 171(country area)

www.shinesa.org.au

Clinic 275 (Tests for STDs) 8226-6025www.stdservices.on.net

Pregnancy Advisory Centre 8347-4955 1800 672 966

WOMEN

Women’s Information Service 8303-05901800 188 158www.wis.sa.gov.au

MEN

Men’s Information and Support Centre 8212-0331www.misc.com.au

YOUTH

Youth Health Line 1300 131 719www.cyh.com

CHILDREN

Kids Helpline 1800 551 800www.kidshelp.com.au

DISABILITY / MENTAL HEALTH

Disability Information and Resource Centre Inc. 1300 305 558www.dircsa.org.au

Mental Health Resource Centre 8221 5166www.mhrc.org.au

GLBTTIQ

Gay and Lesbian Counselling Service of S.A Inc. 8334 1623www.glcssa.org.au

Gay Men’s Health 8334 16171800 671 582www.acsa.org.au

The Second Story Youth Health Service• Inside Out Project (young men under 26)• Evolve (young women under 26)

8232 02331800 131 719www.insideout.cyh.com

South Australian Transsexual Support 8362 32231800 182 233www.tgfolk.net/sites/satsg

INDIGENOUS SERVICES

Aboriginal Health Council of SA 8132 6700www.ahcsa.org.au

CULTURALLY & LINGUISTICALLY DIVERSE COMMUNITY

Migrant Resource Centre of SA 8223 3604www.users.bigpond.com/mrcsa/

Migrant Health Service 8237 3900