Chapter 2 (Choices) set out the central role of people in Australia's criminal justice system. Police, prosecutors, judges and some regulators are active players in determinations of criminal responsibility and the imposition of criminal punishments, and even defendants can play a key role in the course of their prosecution. By contrast, victims’ traditional roles in criminal justice are passive: to be an element of the charged offence and to be a witness (or even an exhibit) at the defendant's trial.
In recent decades, victims (or, at least, groups claiming to represent victims’ interests) have emerged as a major political force, prompting changes to both offence definitions and official procedures. As was the case with Chapter 2, this chapter does not comprehensively examine the contemporary position of victims in the criminal justice system, but rather analyses the way that choices made by and about victims can affect the boundaries of offence provisions.
Section 11.2 highlights the conflicting roles of victims, police and courts in contemporary criminal justice. Section 11.3 analyses victims’ place in offence definitions, while the final section, 11.4, examines the impact of their behaviour on determinations of criminal responsibility.
The topic will be introduced by analysing the contemporary regulation of domestic violence, which now occurs primarily through a system of civil orders, backed by a criminal offence for breaching those orders. This alternative approach to managing crime poses both benefits and risks for victims.
The problem of victims
On 17 September 2002, Joseph Brett Hill assaulted his wife Sandrine Ricardo in their Darwin home. His conduct amounted to the following criminal offence:
Criminal Code (NT)
188 Common assault
(1) Any person who unlawfully assaults another is guilty of an offence and, if no greater punishment is provided, is liable to imprisonment for one year.
(2) If the person assaulted:
(a) suffers harm;
(b) is a female and the offender is a male;
the offender is guilty of a crime and is liable to imprisonment for 5 years.
Assaults consist of either actual or threatened bodily contact. Touching (both actual and anticipated) is, of course, a routine part of most relationships; however, the word unlawfully limits s188 to touching that no one, notably the person being touched, legally authorised.