The Victorian Parliament is set to debate a Bill today that will, in the words of the government’s media release, “take ‘good character’ references off the table so perpetrators can’t use their reputation for less jail time”. But behind the press releases and social media hype is legislation that, in SASVic’s opinion, won’t change much for victim survivors of sexual violence.
This Bill includes various family violence-specific reforms, including criminalising coercive control and making “subject to family violence” a protected attribute. Here, we are only referring to the part of the Bill that relates to good character references.
The intention of this legislation is very commendable. Currently, if someone is found guilty of a crime, including rape or sexual assault, judges can consider the person’s previous “good character” when deciding on an appropriate sentence. This means victim survivors of sexual violence often have to listen to their perpetrator be described as a “good person,” “upstanding”‘ or “valued member of the community” during the sentencing hearing, which happens after the perpetrator has been found guilty at a criminal trial. Hearing this can be traumatising, especially if the offender exploited their good reputation to perpetrate sexual violence, as often happens with child sexual abuse.
This experience is what survivor advocates Harrison James and Jarad Grice were fighting to prevent through their #YourReferenceAin’tRelevant campaign, the key message of which was “victim survivors should never have to sit in court and hear the person who harmed them described as a ‘good person'”.
The problem
The problem is that, as it is currently written, the Bill that’s before Victorian Parliament may not prevent victim survivors from having to sit in court and hear the person who harmed them described as a “good person”.
This is because, instead of “good character,” this Bill would have the court consider an offender’s “circumstances and characteristics” — a term that is not defined, which means it is up to the courts to interpret. While an offender would not be able to submit a “good character reference”, they would be able to submit “a written reference from another person that sets out that other person’s knowledge of the offender’s circumstances and characteristics for the purpose of assisting the court in determining an appropriate sentence”.
The word “characteristics” is so similar to “character” that we are concerned this could be a good character reference by another name. The same evidence that is currently used to prove a perpetrator’s “good character,” such as their involvement in the community, could still make its way into sentencing hearings.
Even more concerning is the Bill’s explanatory memorandum, which provides examples of considerations about an offender that may be captured by the term “circumstances and characteristics”. It states, “For example, information about an offender’s employment, active community involvement (such as continued involvement or re-engagement with a community organisation) or caregiving roles may be relevant to assessing the offender’s risk of re-offending or prospects of rehabilitation”.
This is particularly inappropriate in the context of sexual offending, given that perpetrators of child sexual abuse, in particular, often get involved in community organisations or take up caregiving roles for the purpose of gaining access to children. They then exploit their reputations as trusted, active community members to groom children and the adults around them.
While evidence about someone’s “circumstances and characteristics” may be appropriate for some crimes, it is not appropriate for people found guilty of sexual violence. Perpetrators of sexual violence should not be allowed to use the same characteristics and circumstances that they manipulated and exploited to help them perpetrate sexual violence – like volunteering for community organisation, like being in a care giving role – to convince a judge that they should get a lighter sentence.
What should change
SASVic is advocating for the government to take a different approach to sexual offences, particularly child sexual abuse. These are the changes we would like to see:
“Circumstances and characteristics” should be changed to ‘personal circumstances‘. The word ‘characteristics’ should be dropped altogether as a sentencing consideration in sexual offence matters as it is too similar to ‘character’. This is the most important change to make.
The Bill says that the court ‘must not have regard to’ an offender’s previous ‘good character’. Ideally, it would say that good character evidence is ‘inadmissable’. This is because the wording ‘must not have regard to’ might not prevent victim survivors from hearing their perpetrator be described as a good person during a sentencing hearing, even if the judge can’t consider that evidence when deciding on an appropriate sentence.
Ideally, opinion-based personal circumstances evidence should only be accepted when it has been written by experts suitably qualified to provide this information. An offender’s friends or family aren’t qualified to say whether the offender is likely to reoffend or what their prospects of rehabilitation are. “Personal circumstances” evidence by non-experts should only include facts about the offender’s circumstances, not opinions on reoffending or rehabilitation.
It’s great that the Victorian Government is making efforts to remove good character evidence from the courtroom, but we have to make sure that the same evidence doesn’t just continue getting admitted to court under a different name.
SASVic also commends the courage and tenacity of Harrison James and Jarad Grice, who campaigned to put this reform on the table in jurisdictions across Australia.
With some small changes like the ones above, this legislation has the potential to have a profound impact on the way that victim survivors of sexual violence experience the justice system. To return to the Victorian Government’s media release, “Victim-survivors deserve a justice system that believes them, protects them and holds perpetrators to account”.