Victorian rape law needs reform to protect sex workers

Research has shown that when sex work is illegal, street sex workers who are victims of sexual assault are reluctant to report it to police. shutterstock

Adrian Bayley, who raped and murdered Jill Meagher in 2012, was convicted late last week by a Victorian court of a further rape charge that took place several months prior to Meagher’s killing. This adds to another two rape convictions after trials that took place under the cloak of a suppression order. Bayley will be sentenced on the three rape convictions later this year. He is already serving a minimum of 35 years for Meagher’s rape and murder.

Given two of these three convictions were for raping street sex workers, there should now be increased attention on the comparatively low sentences given to sex offenders when the victim is a sex worker.

Bayley had a long history of serious sexual offending, including multiple convictions for a series of sexual assaults against street sex workers in 2000 and 2001. The sentence given for these assaults – 11 years’ imprisonment, with a non-parole period of eight years, for sexual assaults against five women – seems to be surprisingly low. This is especially so, considering that recent statistics indicate that a sentence of five to six years (per offence) is the median sentence given in Victorian higher courts for rape.

Media commentators and experts have noted the barriers to reporting these sexual assaults, including the continued criminalisation of street sex work in Victoria. Research has shown that despite the prevalence of offending, when sex work is illegal, victims are reluctant to report assaults to the police, often for fear of prosecution.

But what remains unacknowledged in this debate is the position of Victorian law in regards to sex worker sexual assault victims. Two controversial cases provide a non-binding precedent that allow judges to consider the victim’s sexual experience when passing sentence on an offender – but only in circumstances when the “victim is a prostitute”. The current Victorian Sentencing Manual highlights that these cases have not been overruled.

In 1991, Heros Hakopian was convicted for the kidnap, aggravated indecent assault and aggravated rape of a St Kilda-based street sex worker. During sentencing, Justice Crockett declared that due to her sex work:

… the likely psychological effect on the victim of a forced oral intercourse and indecent assault is much less a factor in this case and lessens the gravity of the offences.

This determination followed an earlier precedent set in Harris in 1981, a case involving the rape of two women, a former and current sex worker. Justice Starke similarly remarked that the act of rape would not cause the:

… reaction of revulsion which it might cause in a chaste woman.

Both the Harris and Hakopian cases reinforced what is known as the “whore stigma”, where female sexuality is divided into a good girl/bad girl binary. “Good girls” are worthy of the protection of the law; bad girls are not.

Immediately following the Hakopian controversy, Victoria’s then-attorney-general Andrew McCutcheon made a verbal reference to the state’s Law Reform Commission to inquire into issues arising out of the case, to be rolled into an existing inquiry by the commission into rape law. In 1992, the commission recommended that the principle underlying Hakopian be overturned. It argued that:

If sentences are to be differentiated on the basis of the psychological effect of the crime on the victim, these assessments must be based on information about the actual impact of the offence on that particular victim, not simply on the fact that the victim comes from a particular social or occupational group.

This recommendation was never acted upon.

The current sentencing guidelines for Victorian judges note that the guidance offered by Hakopian and Harris is “non-binding” as it was of a factual nature, that it is contentious, and that the ubiquity of victim impact statements in modern times is likely to render these cases irrelevant. However, the principles of Harris and Hakopian remain available to judges.

This sentencing advice is troubling on three fronts. First, it allows judges to interpret that sex workers experience trauma and victimisation differently to “chaste” women, and reinforces the whore stigma. Second, it can be interpreted as placing an onus on sex worker victims to prove their trauma. Third, it shifts focus away from the offender and their actions and towards the victim.

We cannot be surprised when offenders like Bayley receive lenient sentences for a series of rapes of sex workers when the advice we give to judges is that:

… where the victim of a rape is a prostitute, the victim’s sexual experience may be relevant to sentence.

We cannot know exactly how much influence this advice has had on judicial decision-making for offenders like Bayley. But we cannot discount it either. We also cannot rely on the hope that the judiciary will eventually catch up to community expectations.

It’s time that Victorian law takes the victimisation of sex workers seriously. The first step must be overturning the principles of Harris and Hakopian through legislation.