What Will It Take To Better Protect Victim-Survivors In The Criminal Justice System?

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— Content Warning: This article contains discussion of sexual assault. —

When news broke that prosecutors had dropped charges against Bruce Lehrmann, the man accused of sexually assaulting Brittany Higgins, many were overcome with despair.

The despair then turned to anger, specifically, anger against the criminal justice system for failing yet another alleged survivor of sexual assault.

Junkee spoke to Dr Julia Quilter, a professor of law at the University of Wollongong who specialises in criminal law and sexual assault, about how the criminal justice system could be reformed to better protect victim-survivors, and what those solutions look like.

“I think it’s fair to say first that for 40 years now we’ve actually had good legislative reform in this area,” Dr Quilter says.

It has been recognised very widely across Australia, that there are real problems, particularly for complainants in these types of trials. So the legislation has moved on since the 1980s very considerably.”

Dr Quilter points to the protective mechanisms that have been put in place for people giving evidence. For example, a complainant giving evidence in a sexual assault trial can now do so from a remote witness room.

The court also no longer allow questions about someone’s sexual reputation or sexual history, and evidence has to meet specific conditions to get into a trial.

“We’ve just had another round of reforms in New South Wales and they’re following those reforms in Victoria and Queensland to introduce what’s known as affirmative consent,” Dr Quilter adds.

There is obviously good work going on behind the scenes to strengthen trauma-informed approaches in sexual assault trials.

The only problem is that no matter how much we reform the law, cross-examination continues to inflict extreme scrutiny and emotional distress on complainants.

It’s used by defence lawyers in sexual assault cases to challenge the complainant’s account, and any inconsistencies that arise are often used to allege that victim-survivors are lying.

Notably, in an estimated 50 percent of sexual assault cases, intoxication is used by barristers as a line of defence.

“Another classic one apart from inconsistency is in terms of, ‘why did the person delay in making a complaint to someone and not just anyone that’s understood legally to be to the police?'” Dr Quilter said.

“This idea that the law suggests that a complainant should act in a particular way, such as reporting the allegation to the police very quickly, going and having a medical examination very soon after the events, [when] we know that these are things that women in particular do not want to do after they’ve been violated in this way.”

In her own statement shared to Instagram, Brittany Higgins highlighted that in the ACT during 2020, only 16 percent of sexual offences were reported to police resulted in a charge.

And of that 16 percent — only half that number resulted in a conviction.

We now know because of a leak, that Higgins has filed a civil case against former Liberal ministers Michaela Cash and Linda Reynolds, suing them for $3 million.

Which begs the question: do alleged victims find more success in civil courts than they do the criminal justice system?

“I think it’s fair to say that because of the lowered standard of proof, so instead of beyond reasonable doubt —which is the standard that the crown has to prove in a criminal case — it’s on the balance of probabilities, and there is probably capacity for a complainant to demonstrate what has been done to them at a lower level.”

“But of course that means that you have to have somebody that you are suing who has deep pockets and that is very unlikely to be the case in many other sexual assault situations,” Dr Quilter says.

Dr Quilter talked about therapeutic jurisprudence as one solution for victim-survivors to bypass going to court.

“What they relate to is usually some sort of specialist court or specialist set-up where you might have a situation where an accused person is either prepared to admit their guilt in a context where they won’t actually receive any form of criminal sanction necessarily, but they may well apologise to their victim.”

“And so for some complainants, that’s what they’re really after. They’re after a recognition that they were violated and something happened to them that shouldn’t have happened and they want the accused to take responsibility for it.”

However, Dr Quilter points out that the process isn’t for everyone. And that until we can acknowledge that most women don’t report sexual assault to the police, or take the effects of trauma on memory recall seriously, alleged victim-survivors will continue to be unfairly treated by the system.

“Bring in an expert who can actually indicate that most women don’t report to the police, and if they do, there’s often a delay period,” Dr Quilter says.

“What we know from the research is that trauma affects memory and often memories will then come back in partial ways and in fragmented forms. And it may take a number of times before their account can be complete.”

Ultimately, criminal justice reform that acknowledges the complexity of sexual assault, and its impacts on victim-survivors, is a matter of national urgency.

1800 Respect National Helpline: 1800 737 732
Sexual Assault Helpline: 1800 010 120
Women’s Crisis Line: 1800 811 811
Lifeline (24-hour Crisis line): 131 114
Mensline: 1300 789 978
13YARN: 13 92 76, to speak with an Aboriginal or Torres Strait Islander Crisis Supporter