Pearls and Irritations

How do we address community concern about increasingly high rates of male violence towards women in Australia? As well as upholding the right of a defendant to a fair trial, should we also be considering the rights of the complainant in our legal processes?

Burden of proof 

Currently, allegations of guilt in rape cases need to be proven “beyond reasonable doubt”. Usually, there are no witnesses to a rape, and survivors are often too shocked to seek immediate medical help after an assault. The requirement for a finding beyond reasonable doubt means that if there are no witnesses, there may be no corroborative evidence, and, therefore, no finding of guilt.

Understandably, the majority of sexual assault survivors choose not to pursue justice. Should the standard of proof therefore be reconsidered to become that of “on the balance of probabilities” in rape cases?

Disproportionate focus on complainant in sexual assault prosecutions

Consider this scenario: A house has been broken into. Belongings have been stolen, windows smashed, items broken and scattered on the floor, and the home owner is beaten up in the process. The home owner appears in court as a witness for the prosecution. The defending barrister, on instructions from their client, accuses the home owner of having wilfully invited the burglar in, of having tempting possessions flagrantly on show for all to see, and of having a whisky before bed, a clear indication of their wish for their home to be violated. The home owner is accused of having willingly submitted to the assault, and the burglar asserts that the home owner consented to the break-in.

Ridiculous? This is a strategy employed every week in courts around Australia, when barristers test the integrity and reliability of the sexual assault complainant by highlighting inconsistencies in their evidence, or by questioning whether they had sex at all. Survivors may be browbeaten crudely and humiliated by barristers, whose only means of getting their client acquitted may be to, on instructions from the defendant, accuse the survivor of having not only invited but willingly participated in the attack. The courtroom attacks on rape survivors include offensive suggestions that could constitute harassment and would never be allowed in any Australian workplace.

In effect, the notion of guilt is transferred from the defendant to the complainant, without the corresponding legal protections for a defendant. The “criminalisation” of the alleged victim is continued when rape trials are reported by Australian media. For example, the rape trial against Bruce Lehrmann was labelled by some media outlets as “the Higgins trial”, inferring by that description that it was Brittany Higgins who was actually on trial.

A complainant’s advocate 

There is clearly a need for a new way of approaching sexual assault trials in Australia. One option is that in a contested hearing, the complainant be given the option of being represented in court, at the expense of the community, by counsel. The Commonwealth presently funds such schemes for legal representation for an independent children’s representative, in custody or care disputes or in other cases for an adult party, where family violence is alleged: see ss 68L & 102NA Family Law Act 1975.

A complainant’s counsel could seek to ensure that cross-examination of the alleged victim, is conducted with due fairness. They could make any lawful and proper objections to questions posed by cross examining counsel. The advocate might also be allowed to ask the complainant questions by way of re-examination to provide procedural fairness by addressing uncertainty or confusion caused by the cross examination. It could be inferred that the creation of a complainant’s advocate role suggests that the legal system is engaging in a kind of pre-judgment in favour of the veracity of the complainant’s allegations. There is, however, a precedent for that approach with the notion of a “victims of crime commissioner”: (see, for example, ACT Victims of Crime Act 1994, s13 and the discussion of this issue in the recent Sofronoff report).

Consideration of the accused’s right to silence

How are courts to effectively determine the facts of a case where only two parties are present at the alleged incident, and only one of those two parties is questioned in court? Former WA Supreme Court judge Kenneth Martin has apparently called (Weekend Australian April 20-21, 2024, Ellie Dudley) for the “right to silence” to be re-evaluated in certain sexual assault cases and particularly where there is no compelling corroborative evidence. Martin reportedly said because “only two people know what happened” in the latter cases, both parties should be required to give evidence, and have that evidence tested. He stated, “[H]istorically, the right to silence is understandable in circumstances where you had the power of the state marshalled against some impoverished, illiterate person” … “But I think with education and a rebalancing of that over time .. if you want to get a fair perspective of what happened .. a limited cross examination in terms of testing what [the accused] said doesn’t strike me as particularly unfair when he’s represented”.

The sanction for an accused who chose not to get into the witness box could be that an inference might be drawn that his evidence would not have helped his case.

Those who would wish to resist such fundamental changes must consider whether the ongoing violence against women is, in fact, facilitated by a legal structure which appears unable to confront male violence against women in Australia. While it is important to protect the notion of innocence for alleged perpetrators, what protections are given to complainants? Is it possible to extend rights currently given to the accused so that the alleged victim is also treated with dignity and respect? We have suggested these fundamental (rather than ‘incremental’) changes in an attempt to seek justice for sexual assault survivors in Australia.

Share and Enjoy !

SHARE TWEET SHARE COPY EMAIL PRINT