opinion

"As a young child I was raped and I was terrified of taking my abuser to trial."

If you or someone you know has experienced sexual assault, please seek help with a qualified counsellor or by calling 1800 RESPECT.

You may have recently read about Amy*, the 14-year-old Geelong girl who was allegedly raped by three men on November 1, 2015. An immeasurably brave young woman, Amy was the victim/survivor of an alleged vicious sexual assault who discontinued the prosecution of her alleged attackers owing to the spectre of re-traumatisation by the legal process. The trial was discontinued on February 24, this year.

Recently, Amy’s telling of her story prompted me and many others to stand in solidarity with her and tell our stories of sexual abuse and assault and rape, too; these are stories of having elected not to report or not to pursue charges against perpetrators, and of having endured traumatic experiences through the legal process where we have chosen to proceed. We speak in order to bring about change in an arena where despite much laudable progress, change is still urgently needed.

Why is it that such change is needed in Australia in 2017? It is needed because both reporting and conviction rates remain woefully low, preventing victim/survivors from accessing justice and reducing public safety by leaving offenders free and in the community and sending them the message that they can behave with impunity. And it is needed because victim/survivors who do proceed to prosecution continue to report negative experiences, with many describing it as “brutal”. Something, I’m sure you’d agree, is going wrong.

As a young child, I was determined not to participate in any prosecution of my abuser. This was borne of my feelings around the re-telling of what had happened to me.

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And even though reforms have gone some way (though certainly not far enough) to reducing the trauma on child witnesses of things like cross-examination, the ineluctable truth is that a cross-examination remains a cross-examination: its very purpose is to destroy the witness’s credibility. This makes me wonder how much reform that is not of a structural nature can actually achieve – whether the very structures of our system are fundamentally incompatible with providing victim/survivors with an empowering experience and a real sense of justice having been served.

As a law student, I learned that our criminal justice system is designed to protect persons from wrongful conviction. The rules of evidence which govern our adversarial criminal trials are aimed at achieving this above all else; it is an even more important consideration than truth.

This was merely theoretical to me until the day when, visiting court to complete a university assignment, I witnessed how traumatising the adversarial criminal trial can be for victim/survivors when I sat in a Victorian courtroom and watched a young woman undergo cross-examination by a fierce defence barrister. My heart ached for the woman as I watched the barrister humiliate her and poke holes in her recounting of the facts. The experience reaffirmed that I had made the right choice for me in not pursuing prosecution all those years ago.

Mia Freedman, Monique Bowley and Jessie Stephens discuss what’s wrong with a ‘harmless’ grope. Post continues below.

Something else stuck me in the courtroom that day: the passive role reserved for the victim/survivor in the criminal trial. She has no control over proceedings and is given a voice only when being called to give evidence. There is no space in a trial for the victim/survivor’s telling of her truth as she would wish to tell it, and the adequacy of this process for enabling the complainant to feel that justice has been served is probably something that only an individual victim/survivor can decide in her own case, depending in part on what “justice” means to her.

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Many options to improve the situation have been mooted. For example, Kerstin Braun has suggested that legal representation for victim witnesses may be one positive reform which could work even in our adversarial system. Specialized courts – like those in New York, where specialized sex offence courts “seek to enhance public safety by preventing further victimisation” – are another common sense reform.

It should be standard procedure that accused persons are not allowed to cross-examine victim witnesses, and victim witnesses should at no point be required to be in the same room as their alleged abusers.

Perhaps if complainants were able to give written rather than oral evidence this could go some way to reducing re-traumatisation.

Mia Freedman, Monique Bowley and Jessie Stephens discuss the practice of ‘casual sexual assault’ on Mamamia Out Loud. Post continues below.

We need to consider that “justice” might mean different things to different victims/survivors (while one may seek retribution, another may be primarily concerned with having her abuser acknowledge his crime).

And notwithstanding the interest of both the state and the community generally in the prosecution and conviction of sexual offenders, we need acknowledge that it is not fair to expect complainants to go through an ordeal frequently described as “brutal” in order to achieve those ends on our behalf. We need to consider whether there are alternatives to prosecution that could better address the needs of victim/survivors in light of the limitations on structural reform in a system that places absolute primacy on the right of the accused to the presumption of innocence and right to a fair trial. Alternative justice initiatives, for example, may be a valuable additional option alongside prosecution.

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I do not pretend these are easy questions, and I certainly don’t purport to have the answers. But it certainly doesn’t take an expert to know that in circumstances where reporting and conviction rates are, frankly, pathetically poor despite significant reform already having been undertaken, something much more innovative is needed.

It is not only in the interest of victim/survivors that reporting and conviction rates improve; it is in our collective interest, given that the risk of recidivism that increases where assault offenders go unpunished.

Finally, it is not for judges or defence lawyers to decide whether the courts and legal process are sensitive to the needs of victims/survivors. That is for us to decide. If women are saying, as we do, that there is much more to be done, then be done it must.

*Not her real name. 

Mamamia’s Survivors of Sexual Assault Week is about providing support for the one in five women Australian women who will experience sexual assault in their lifetime. To read more from Survivors of Sexual Assault Week, click here. If you or someone you know has been a victim of sexual assault, don't suffer in silence, contact 1800 RESPECT or visit www.1800respect.org.au

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