Australian Criminal Law - Essay Example

Criminology Table of Content Serial Number and Topic Head Page Number 0 Introduction 03 2.0 The Report 04 3.0 NSW Legislation 06 4.0 Analysis 08 5.0 Conclusion 10 6.0 References 12 Overview In the musical 'Chicago' a song, "Cell Block Tango", gives a satirical assessment of violence against women. June (an inmate in a fictitious prison) narrates: Now I'm standin' in the kitchen carvin' up the chicken for dinner, minding my own business, and in storms my husband Wilbur in a jealous rage. "You've been screwin' the milkman", he says. He was crazy and he kept on screamin', "You've been screwin' the milkman". And then he ran into my knife. He ran into my knife ten times. If you'd have been there, if you'd have seen it, I betcha you would have done the same! [Wilbur, as it transpires, had a long history of violence, possessiveness and a need to control June.] The Chorus is sung: He had it coming He had it coming He only had himself to blame If you'd've been there If you'd've seen it I betcha you would have done the same! Abstract There has been constant change in the legal texts in keeping with the changes that are happening with criminal homicide in Australia (Brown et al., 1996). Whilst the law of homicide has evolved over time the incidence of homicide has remained relatively stable. The rate of homicide in Australia fluctuated from as low as 0.84 in 1941 to as high as 2.39 in 1988. Similarly, homicide in Australia between 1989/90 and 1998/99 revealed that over the last ten years the circumstances and characteristics of homicide in Australia have remained relatively unchanged. According to the latest figures derived from the National Homicide Monitoring Program (NHMP), there were 337 victims of homicide in 1999/2000, which are about two people for every 100,000 Australian residents (Mouzos 2001). In comparison to homicide in the United States, the rate is comparatively lower. In the United States about 6 for every 100,000 Americans are killed (US Department of Justice 2000) 1.0 Introduction Homicide has many forms. Murder for gain, sexual and physical violence and abuse of women, and revenge are among the two most common reasons for homicide. While homicide has continued over the ages, the purpose of finding the reason has not changed much in comparison to the methods used to trace the cause. Like in all investigations, the investigators have to gather and analyse whatever information and clue they get before zeroing on the suspect. No person is guilty until proved so, and to bring the criminal to justice, the law must ascertain from reliable sources information, intelligence, leads, tips, and witness statements to build a positive case. This is however, a long process, as analysis of such large amounts of information using traditional research methods can take quite a long time, and using antiquated analysis methods has been said to impair or slow down an investigation. Access to information, and clues; be it positive or negative, can have an impact on the investigation, leading sometimes to the delayed arrest of the perpetrator (Travis, 1996), or in extreme cases, the arrest of an innocent person (Jenny Mouzos, p.2-5, 2001). Sexual and physical violence and abuse has remained a bane on society. Women find themselves fighting a losing battle, and against all odds, as they stand and try to fend for themselves against a pack of wolves. There have been thousands of cases that have gone unreported, and a couple of thousands more that remain unsolved. Most of the cases that remain unsolved are because of the non-cooperation of the victims to help the investigators in their duty. Social factors and fright are attributed to reasons for such misendeavour. So, does the criminal law need reform in order to protect women from sexual and physical violence and abuse 2.0 Report Many women in prisons experienced disadvantages such as poor education and literacy, very limited employment skills, inadequate housing, and scarce income. Most of these women were victims or are survivors of abuse, sexual assault and/or incest (Sisters Inside Inc., p.6, 2005). Women in prison have for long experienced physical and/or sexual abuse through strip-searches and other means. Prisons in the State Prisons of Victoria had an alarming rate of cases of women suffering from physical and sexual abuse. In fact, the figures on prison records showed that 64% of women in Victorian prisons had a history of physical or sexual abuse1, and 42% of women in Queensland prisons had histories of sexual abuse prior to the age of 162. 77% of women in West Australian prisons had experienced past abuse3, and 89% of women in prison have been sexually abused at some point in their lives, including a significant number of women who were abused as children by people in a position of authority and trust4. A survey in 1989 in Brisbane found that 70-80% of women in prison were survivors of incest. In 1992 an Australia wide survey was conducted5. The survey revealed that there were 2,762 rape cases reported6, of which 43% of those survivors were just 16 or under at the time of the rape, 15.7% were 0-10 at the time of the rape, and 47.8% of the perpetrators to this crime were family members, and 14.3% were acquaintances. 27.2% of these survivors were 11-16 when they were raped, of which, 16.7% of the perpetrators were family members, and 22% of the perpetrators were strangers. The trauma left behind by such sadistic behavior is far too serious to be left untouched. These unfortunate women who have had to face the consequences of sexual and physical assault for no reason of their own, and which is widely documented, faced death and permanent disability, injury and pain, emotional and physical stress, sleepless nights and impaired thinking to name a few7 (Sisters Inside Inc., p.9, 2005). The picture portrayed by the above statistics is something that people in Australia should be sad to read. The life of a woman is not safe in Australia. Stats speak for itself, and the most damaging aspect of the statistics is that the majority of women who were victims to such actions were deceived by their own people. The law in this country must be reformed to protect their women from sexual violence and abuse. What is disheartening to see is that most of these survivors of sexual abuse are overly represented in the prison population. The fact that most of these women were subjected to sexual abuse at such young age remains a serious concern for the society that they live in (Sisters Inside Inc., p.10, 2005). Observation: Given the nature of crime and the easiness with which they are committed, women must have some form of protection against such occurrences happening to them in future. Young girls who take their relatives and friends for granted become easy prey, and there must be something done to stop such repetitions. The law is not stringent enough to dissuade the perpetrators from making such coveted moves on women. If this trend continues to grow beyond control, there will come a time, when all prisons in the country will be filled with women of such misfortune. 3.0 NSW Legislation Division 10, Part Three of the Crimes Act 1900 has provisions relating to sexual assault offences. Section 66C determines the age of consent for heterosexual sex as being 16. As seen, most of the victims of sexual abuse were between the age of 10 and 16. This is an age when girls find themselves torn between two distinct worlds, and fall prey to unsuspecting advances. 66C Sexual intercourse against children between 10 and 16 states that: Any person(s), who has sexual intercourse with another who is or above 10 years, and under the age of 16 years, shall be liable to imprisonment for 8 years. Any person who has sexual intercourse with another who: Is or above the age of 10 years, and under the age of 16 years, and Is (at the time of the sexual intercourse) under the authority of the same person, shall be liable to imprisonment for 10 years (Talina Drabsch, 2003). When there are provisions for protection of women and young girls in jails, why can't the law be ratified to punish those perpetrators who cause physical and mental torture to unsuspecting women and children The law of the land is quite incapacitated to take a firm stance on such perpetrators for reasons known only to them. There should be stringent action initiated against such people. Only with a firm hand can such actions be stopped. The International Covenant on Civil and Political Rights (ICCPR), ratified in Australia on 13 November 1980, the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), ratified in Australia on August 27 1983 and the Convention Against Torture and Other Cruel Inhuman or Degrading Punishment or Treatment (CAT) ratified in Australia on 7 September 1988 (Convention Against Torture) provides: Article 10.1 ICCPR states that all persons deprived of their liberty to be treated with humanity and respect for the inherent dignity of the human person. Article 7 ICCPR states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 17.1 ICCPR states that no one shall be subjected to arbitrary and unlawful interference with his/her privacy, family, home or correspondence... Article 17.2 ICCPR states that everyone has the right to protection of the law against such interference or attacks that may seem harmful to them The ICCPR makes reference to prisoner's human rights based the provision that the prisoners will be treated with humanity and respect and that they shall not be subject to cruel, inhuman or degrading treatment or punishment. Furthermore, ICCPR codifies the right of people not to be arbitrarily interfered with and to the protection of the law against such interference (Sisters Inside Inc., p.11, 2005). 4.0 Analysis Many victims of violent crimes such as rape and assault endure stress during police investigation and the subsequent prosecution process. The experience can be particularly harrowing for victims of sexual offences and women in particular. The saddest part of such an act is that it is difficult to prosecute, as it happens in places where there are no witnesses, and the victim must provide evidence of a most personal nature, and there is often little evidence other than the victim's word. It is because of this, that there are less than 20 per cent victims of sexual offences reporting the offence to police. Subsequently, the conviction rates are lower than for other types of offences (dpp, p.16, 2005). In Australia rape has traditionally been defined as carnal knowledge of a woman against her will8. The offence of rape evolved not to protect women but to safeguard male property interests9, In 1997 the Australian Law Reform Commission (ALRC) and the Human Rights and Equal Opportunity Commission (HREOC) reported on children as being victims of sexual abuse.10 In 2000 the Queensland Law Reform Commission published The Receipt of Evidence by Queensland Courts: the evidence of children11 These and many more recommendations found their way into legislation in that state12. Reports from the United Kingdom found their way to influencing the legislators to make changes and enact important reforms to protect the children and other victims from giving witness. 13 These brought about a change, and many Australian jurisdictions introduced a range of measures designed to make it easier for children to give evidence in criminal proceedings. Western Australia has been at the forefront of innovative legislation and practices since the 1990s, and other Australian jurisdictions are following this example. A prominent change has been the jurisdiction's allowing children to present their evidence to be pre-recorded, and all other states, barring the ACT, have restricted the need for children to give evidence at committal hearings. All jurisdictions have modified their legislation to allow children to give evidence from a room located outside the courtroom and linked by closed-circuit television. Since the 1991 legislative reforms in the ACT allowing children and adult victims of sexual offences to give evidence by means of closed-circuit television, no significant procedural reforms (admission of prerecorded evidence) has been introduced (dpp, p.46, 2005). Recommendations: All states must be allowed to ratify the current law on protection of women from sexual and physical violence and abuse to discourage perpetrators from making such advances against defenceless women and children. One way of bringing about a change could be to allow: The Police to rely on s. 212 of the ACT Crimes Act 1900 and consider the safety of the victim when deciding whether to proceed by way of summons or arrest in relation to alleged sexual offences. Preference should be given to proceeding by way of arrest, instead of issuing a summons, in sexual abuse and offences of violence upon children, applying the provisions of the Crimes Act. Unless there is no possibility of the alleged offender coming into contact with the victim, bail conditions protecting the victim from the alleged offender should generally be imposed in cases where proceedings are instituted. 3.25 Section 212 of the ACT Crimes Act 1900 should be amended so that police can arrest without warrant, and without the need to consider the requirements of s. 212(1) (b) of the Act, a person suspected of having committed a sexual offence (dpp, p.20, 2005). 5.0 Conclusion Women have always been made to look at men as their savior. Women were made to become prostitutes to please powerful men from the days of early civilization. Men would love them, torment them, use them, and then finally discard them. The civilized world has come to recognize women as equals and women hold very powerful portfolios the world over. However, sexual abuse at workplace, at home, at public places and in private has been most demeaning. Women and young girls are victims of unsuspecting sexual overtures by a minority of men, who through their guiles trap these innocent people and rape and torture them to satisfy their lust. In Australia, the number of women who have been offended sexually is rising quite alarmingly. Statistics has concluded that most of the victims knew their attacker and least expected them to be the perpetrators. The scandal and mental agony forces most of these victims to suppress details and keep away from filing police complaints. Also, many victims of violent crimes such as rape and assault have to endure stress during police investigation and the subsequent prosecution process, and therefore remain mum. Thus the question of: Does the criminal law need to reform in order to protect women from sexual and physical violence and abuse must be put in place. 6.0 References 1.0 Sisters Inside Inc., A Campaign to End the Sexual Assault of Women by the State, http://www.sistersinside.com.au/media/AntiStripSearchingInfo.pdf 2005 2.0 K. Whitney, M. Flynn and P. Moyle (5th edition), The Criminal Codes: commentary and materials, http://www.canberra.edu.au/__data/assets/pdf_file/37561/clr-2004-restricted.pdf 3.0 Jenny Mouzos, Investigating Homicide: New Responses for an Old Crime, http://www.aic.gov.au/conferences/outlook4/Mouzos.pdf 4.0 Talina Drabsch, Parliament of New South Wales, Crimes Amendment (Sexual Offences) Bill 2003, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/62399CDD4290DF2ACA256ECF00083D2F 5.0 dpp, Office of the Director of Public Prosecutions, Responding to sexual assault: The challenge of change, http://www.dpp.act.gov.au/pdf/DPP%20SARP%20report%20 (11Feb05).pdf Read More