Decent Assault?
This post is about rape and sexual assault cases. If you think it might upset you, please don’t read it.
Reading this article this morning the phrase that caught my eye was “indecent assault”. In my warped, sleep deprived mind, I had a quiet chuckle at the phrase, and wondered to myself if there was such a thing as “decent assault”.
But then I got thinking further. As you know, I’m studying law, and this semester am completing part one of the two Criminal Law subjects. Living in Queensland and studying in New South Wales is challenging, but fascinating in this case. We’ve been informed through our lectures, that people are no longer charged with “rape” in NSW, but “sexual assault”. I’m not sure, but I’d be willing to bet in Queensland you’d be charged with “indecent assault”
Does it matter?
Does it really matter what we call it? I think it does. Rape is a verb. An accurate description of what is being alleged. Sexual assault covers all manner of things. Everything from say grabbing a breast to rape. And as for indecent assault, despite my flippant remark earlier, does imply that it’s different from “assault”. What does indecent mean anyway? What is indecent to you, might be decent to me. But on the other side of the argument, rape is a deeply emotive word, that evokes all sorts of responses. But do we need to keep it out of the criminal codes?
Why hide behind words?
What is the point of hiding these acts behind words that mean any number of things? Is it to protect the assailant? Or the victim? Or their families? I don’t know the answer to this one, but whoever it’s meant to help, I’m certain it’s benefiting those accused of these crimes the most. Due to the ambiguous nature of “sexual assault” or “indecent assault”, I’d be willing to bet these crimes aren’t taken as seriously as, say, murder.
Why is this important?
In doing a bit of research for my course, I came across this article in the Lawyer’s Weekly. It talks about the conviction rate of “sexual assault” cases in NSW courts - less than 5% of reported cases (the article also claims approximately 20% of women report sexual assault to police). Does the name of the charge have anything to do with it? I don’t know, but I do know that a 5% conviction rate (compared to 60%-70% for other crimes) is abysmal.
What can be done?
The article in the Lawyer’s Weekly talked about other countries that have specialist courts, and changes to NSW courts that proport to make things easier on the victims, but that in reality have little effect. But I think the most important thing is to call a spade a spade. Don’t hide behind fancy terminology. If someone is accused of rape, charge them with rape, not “indecent assault”. If someone is charged with drink driving, they are charged with “driving under the influence”, not “Indecent road usage”.
I’m not suggesting for a second that this would have a massive effect on conviction rates, but what are we really trying to hide? It just might help change people’s perceptions. And with a 5% conviction rate - something needs to change.
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I agree with you. Rape is ugly and shouldn’t be prettied up for court. Indecent assault, to many people, covers things like being grabbed on the breast or maybe someone putting their hands on other parts of the body. A jury panel hearing the accused is charged with indecent assault immediately forms a mental image of something similar to this, while hearing a charge of rape brings to mind a far more ugly event. The outcome is skewed by the forming of that very important first reaction.
My recollection from my law studies (years ago) was that the term rape was changed to sexual assault in an effort to overcome the stigma attached to the word “rape” and increase numbers of women reporting the crime. It was done in part to protect victims. To me that seems a bit short-sighted because surely in time the term “sexual assault” would take on a stigma too. The real gains in improving reporting figures would (and has) come in education of the community. In any event the name you use to describe the offence is only one of the many factors that would make a rape trial traumatic for the victim.
In WA at least there is a clear distinction between the legal definitions of sexual assualt and indecent assault and indecent assault is a lesser offence. Generally I think sexual assault is defined as penetration, indecent is not. (sorry if that’s too graphic for your readers) As River said indecent assault conjures up images of inappropriate grabbing and there’s every chance that’s what happened in the case you linked to (there weren’t any details of what he did). I think it can also include many other forms of forcible touching of a sexual nature. As far as what indecent means to you or me or a judge or jury, in the absence of an inclusive definition in the Criminal Code, it all comes back to those reasonable man tests doesn’t it? I’m sure there’s heaps of case law on it.
I think often the legal terminology used is an effort to distance the question of proving guilt from the preconceptions that juries bring to particular words and phrases. Sometimes that could really hold a conviction back, for example where someone is charged with sexual assault for an offence involving an object. (I’m trying to be a bit cryptic so as not to clutter your blog up with nasty images
) Your average juror might think “rape” just means person on person but if you explain the definition of “sexual assault” to them, they might be more open to a conviction. Of course lawyers could explain the definition of “rape” if that was the word used, but that carries a lot of baggage with it because it is an everyday term, not a legal term. I’m not saying the new terminology is a good thing or that its working, just that this is my impression of the justification for these terms. (Its also got a lot to do with legal jargon which the cynic in me puts down to lawyers making the law so complicated it is beyond the layman to understand, thus guaranteeing themselves ongoing work)
It’s an interesting point you raised and I imagine its strange being torn between 2 states in your studies and home. Criminal law in particular differs around the country because some states are Code states (WA and Qld I think) others are not.
I don’t like the term ’sexual assault’. I feel it’s too broad and tends to minimise what’s happened in some cases.
It must be a bit confusing studying in NSW and living in Qld! Good luck with that.
Yes, Guera, it’s my opinion too that legal jargon was invented so that people don’t understand what used to be simple thus guaranteeing more work for lawyers. Some paperwork, i.e. contracts, are so complicated we almost need a university degree just to read them.
I agree with all the above comments - “sexual assault” is far too broad a term covering anything and everything whereas “rape” can’t be mistaken for anything except the gross abuse by one human being against another.
defense attny’s will lobby for terms that obfuscate what is really going on.
murder is both a verb and a noun. Murder is usually a noun most oftn for legal expedience. Murder one, murder two etc.
rape is a verb, and could also be a noun for legalese. Rape one, two, and three could define the different degrees of rape.
Murder is never called “life assault” or life assault one, and so neither should be rape.
In doing so, with a statiscal lower conviction rate, I believe sexual assaults to be an intentional misappropriation of terms on behalf of defense attys trying to obfuscate what the hell is going on.
5% conviction rate! No wonder so many women to do not want to go to court. That is a very disturbing stat.