All the statistics on unreported rape, long delayed reporting of rape, low rate of charging alleged offenders, frequency of withdrawal of complaints and low rate of convictions would cause any reasonable person to conclude that rape law in Australia is broken and probably thousands of perpetrators escape sanction and thousands of victims have little chance of getting justice. It is also an obvious conclusion that the current legal regimes have little to no deterrent effect. Society has an interest in seeing a system that provides justice for victims and just as importantly metes out justice to perpetrators and causes a deterrent effect
So how can we reform Rape Law to deliver more justice to both perpetrators and victims?
Make rape a new category of civil action that is investigated by police and includes immediate rape kit collection and testing and independent counselling by qualified rape counsellors.
Rape itself would not be punishable by a prison sentence, but by a financial order in favour of the victim that bankruptcy would not cure plus compulsory counselling plus community service orders and limitation on certain things including drugs, alcohol, and a curfew.
Breaching the community service and behavioural orders would be a criminal offence.
Any other assault committed in conjunction with the rape would remain a criminal offence, as would any deprivation of liberty, kidnapping or other associated offence.
Where a person without mental deficiency but a minor committed a rape the parents would be liable for half of the penalty imposed unless they could prove that they had taken all reasonable steps to adequately educate the minor of the consequences of rape, the onus to obtain clear consent, that self induced diminished capacity is not a defence, that consent obtained by false representation or from an inebriated person or pwerson under the influence drugs is not a sufficient consent for any sexual act
The burden of proof for only the rape would be on balance of probabilities. It would not have to be proven beyond reasonable doubt.
All employers of or persons standing in locus parentis to a person not of full legal capacity would be obliged to report an occurence of rape of which they are aware advising the police of the name of the alleged assailant.
Police would be obliged to use all reasonable endeavours to obtain a signed sworn affidavit from the alleged victim as soon as possible after the alleged offence and that statement would be required to name the alleged assailant but in the case of a bona fide belief as to identity the alleged victim would be immune from defamation or similar proceedings. The normal penalties for a false declaration would apply.
No alleged victim would be obliged to give evidence in a court hearing even if it meant that the case against the alleged assailant did not proceed.
The police would be obliged to keep an up to date database of all allegations of rape and it would be able to be interogated by assailant and victim and other relevant details.
Where a person was subject to multiple allegations supported by sworn statements, evidence of an alleged pattern of behaviour would be admissable.
The old maxim about better for the guilty to go free than for one innocent person to be found guilty is causing such injustice and perversion of criminal law, and undermining of deterrence in case of rape that the current law must be reformed.