Victims of sexual violence still face rape myths and stereotyping in criminal trials in NSW, a new study has found, despite four decades of legislative change designed to provide complainants with greater protection.
University of Wollongong Professor Julia Quilter and Professor Luke McNamara from the University of NSW found reforms introduced over the past four decades to protect complainants - such as giving evidence in closed court, the provision of videolinks from a remote location, and having a support person - were operating as they should.
But Professor Quilter said they had not tackled many aspects that were most distressing for complainants.
"We found that rape myths and stereotypes about how a genuine victim of sexual violence should behave featured prominently in the trials we examined," Professor Quilter said about the findings of the study, conducted for the NSW Bureau of Crime Statistics and Research.
She explained that these myths included such expectations as reporting an incident straight away and having consistent recollections of the event.
The analysis of transcripts of 75 District Court trials finalised between 2014 and 2020 revealed:
- 84 per cent of trials involved questions from the defence to the complainant about making a delayed or incomplete complaint
- 53 per cent included questions about having failed to physically resist
- 53 per cent involved questions about failing to verbally communicate non-consent
- 76 per cent featured questions about having an incomplete or inconsistent recollection
"I suggest to you, ma'am, that you didn't indicate that you were not consenting. You never said to him, 'No'," one defence lawyer said, in a remark highlighted in the report.
In another example, a complainant was asked: "He certainly didn't push you to the ground and push you to your hands and knees, did he?"
The study also revealed it was often implied that complainants were lying in some way; in 73 per cent of trials, the complainant was accused of having an ulterior motive.
Professor Quilter said she had hoped to see a shift towards an approach that focused on free and voluntary consent, but instead complainants still faced interrogation about what they had worn or what they did.
She and Professor McNamara found defence lawyers were generally courteous towards complainants, but in some cases they were "sarcastic, combative, belittling and judgmental".
Complainants were questioned about their personal history to cast them in a poor light, the report said, or there were implications they had flirted with the accused.
On two occasions complainants were questioned in a way that 'blamed' them for their clothing choices but more commonly questions about clothing focused on the mechanics of undressing and suggested the complainant must have helped to remove it.
But concerns were not limited to the defence and the report authors found prosecution cases generally followed a formulaic approach that included unnecessary evidence.
"We were surprised to see a strong focus by the Crown on the attire of the complainant (including details of underwear) which had little or no relevance... This focus runs the risk of embedding attire as relevant (including as a focus for cross-examination), and additionally has capacity to distress and confuse the complainant," they said.
In some instances, they also found the prosecutor required the complainant to give a level of detail about sexual acts that appeared irrelevant to the charges, which could cause distress.
The prosecution often did not rely on the complainant's significant intoxication to negate consent, even though this was an issue in 67 per cent of cases.
And while legally the definition of consent has moved from a focus on resistance to a free and voluntary agreement, the prosecution rarely focused on this in trials.
"This study lays bare the confronting reality of how caustic the trial process can be for those seeking justice in response to sexual violence," BOCSAR executive director Jackie Fitzgerald said.
But the report noted that judges and lawyers were mostly respectful towards the complainant and sensitive towards their need for breaks.
What can change?
Professors Quilter and McNamara offer four recommendations, the first of which is changing the way the Crown presents its case so it does not reinforce rape myths by allowing the complainant to tell the story in their voice; excluding unnecessary evidence; and making the concept of consent as free and voluntary central to the case.
The report authors suggest closer scrutiny of the relevance of evidence and the admissibility of evidence about the complainant's credibility, and legislating that judges must give directions to the jury as the relevant evidence arises, rather than the end.
There is another recommendation to introduce ground rules hearings - which have been implemented in Victoria - before a trial begins to decide the kinds of questions that can be asked and topics that can be canvassed.
Professor Quilter said it would take "resources, education and imagination" to rethink these sorts of trials.
She said she and Professor McNamara felt privileged to have been given access to the transcripts, and hoped the report gave some voice to complainants and their experiences.
- Support is available from 1800RESPECT on 1800 737 732 and Lifeline on 13 11 14
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Natalie Croxon
Reporter at the Illawarra Mercury, mostly covering social affairs. Previously of the Bendigo Advertiser, Northern Daily Leader and Quirindi Advocate. Our Watch award winner.
Reporter at the Illawarra Mercury, mostly covering social affairs. Previously of the Bendigo Advertiser, Northern Daily Leader and Quirindi Advocate. Our Watch award winner.
