How The Justice System Keeps Failing Sexual Assault Survivors

Want more Junkee in your life? Sign up to our newsletter, and follow us on Instagram, Twitter and Facebook so you always know where to find us.

For the past two months, Australia has been shocked and exhausted by the sexual assault news coming out of Canberra.    

In March, thousands of people marched around the country to protest the sexual assault, abuse and harassment of women in Australia.    

People are hurt, and they’re frustrated about the way assault allegations have been handled by the Federal Government.    

The response from politicians to these sexual assault allegations has been a grim reflection of how poorly sexual assault accusations are treated in public conversations.    

And more broadly than that, it’s a painful reminder of how victims of sexual assault in Australia are, time and time again, failed by our justice system.   

The Government’s Response To Sexual Assault Allegations

Some of the responses from members of government to the recent allegations have been really disappointing.     

When Brittany Higgins came forward with her story that she had been raped by a colleague in Parliament House, Home Affairs Minister Peter Dutton described it as a ‘he said, she said’ incident. Then, just a few days later, Defence Minister Linda Reynolds was forced to publicly apologise for calling Higgins a “lying cow”.    

Now an investigation into who in Parliament knew what and when about Higgins’ allegations has been paused for weeks, without the Prime Minister really making that public.    

Holly Mason-White (Sexual Assault Support Service): “It’s obviously been a pretty disappointing response that we’ve been seeing.” 

The disappointment of how Brittany Higgin’s story was handled by politicians in the public light was only compounded a few weeks later when rape allegations were levelled against Attorney General Christian Porter.   

When the allegations came to light, there were immediate calls for Porter to submit to an independent inquiry, but that hasn’t happened.    

Scott Morrison has refused the idea, instead stating that Porter is “an innocent man under our law”.    

This pattern of disappointing responses to sexual assault allegations is an old one, and its consequences on the people brave enough to come forward with their stories can be severe.    

Reinforcing Stigma Keeps Victims Silent 

Both Higgins and her partner’s careers have been directly affected by her decision to come forward with the allegations.    

Higgins said she’s been unable to find work, and her partner made the decision to leave his job in Canberra because he was worried about repercussions.    

Survivors of sexual assault are frequently forced to face this kind of backlash, on top of the trauma of experiencing sexual assault in the first place.    

Government responses like the ones we’ve seen over the last few weeks feed into why the decision to report a sexual assault is an incredibly difficult one for survivors to make.    

HMW: “A lot of it will be playing into the myths that surround sexual assault. So that blame and shame and denial of sexual assault survivors’ experiences.” 

Victim-blaming isn’t exactly rare.    

One in eight Australians believe that if a woman is raped while she’s affected by alcohol or drugs, she’s at least partly responsible.    

And on top of that, people tend to doubt the accounts of survivors.      

HMW: “That can happen from the very first moment that, that someone discloses; people asking questions of them instead of just listening and hearing what they’re saying.” 

The number of false allegations of sexual assault is incredibly low. It’s tricky to estimate accurately, but studies have shown it’s anywhere from 2 to 5% of reports.    

And yet, four in 10 Australians believe that women lie about sexual assault to get back at men.    

And around 1 in 10 think that women are “probably lying” about rape if they don’t report it quickly.    

Beliefs like that really affect whether incidents of assault get reported at all.    

It’s really difficult to estimate how many people who have experienced sexual violence in Australia actually go to the police after it happens.    

Some studies have shown that only around 20% do, but official estimates in Australia are even smaller than that, around 13%.     

In 2016, that amounted to around 178,000 unreported sexual assaults.  

For Indigenous people, fear or mistrust of the police can make them even more nervous than non-Indigenous Australians about reporting incidents.   

But the problems here aren’t just about if – or when – incidents get reported; they’re also about Australia’s entire justice system.   

How The Justice System Fails Survivors   

Survivors run into massive barriers at every stage of the justice system.  

It starts with police, where survivors can be faced with some really biased responses, that feed back into that pre-existing stigma that stops people coming forward in the first place.    

HMW: “It’s still victims being asked what they were wearing, why they made certain decisions to go certain places or why they met up with certain people.”   

But officers have a huge amount of discretion about whether or not they choose to investigate an allegation once it’s been made.    

A lot of this comes down to training police on how to handle sex crimes and assist survivors, and one ABC investigation from last year found that whether or not a sexual assault investigation leads to legal action depends pretty heavily on which state or territory the report is filed in.    

In NSW, for example, an investigation is half as likely to lead to legal action than in Victoria.    

When reports are filed and investigated, it’s then rare for cases to actually make it to court.  

Over 23,000 sexual assaults were reported to police in 2016, and legal action was only taken in around 4,700 of those cases.    

The fairly obvious but unsatisfactory reasoning for dismissing cases is that there isn’t enough evidence to prove the claim either way.    

For the cases that do make it to court, that in itself can be a really traumatic experience.    

Gruelling cross-examinations from lawyers can totally ignore the impact the trauma of sexual assault actually has on a person’s memory, and there are still defences available in some Australian states that can bend cases in favour of the people who have been accused.     

From start to finish, it can be a horrendous process for people at the most vulnerable period of their lives.   

HMW: “The court processes is a whole kind of retraumatisation. And then even for those who are successful, we’re saying pretty minimal sentences for sex offenses as well … So I think a lot of that deters people.” 

Laws Are Changing To Address The Under-prosecution Of Sexual Assault Crimes

The justice system has changed in a couple of ways to try and address Australia’s massive under-prosecution of sex crimes.    

Police are increasingly being trained to be trauma-informed, and sexual assault support services are available in every state and territory to mediate those interactions with cops.    

That can make reporting assaults a much more comfortable and just experience for survivors.    

Increasingly, survivors are also being given the option to make informal reports with police.   

Almost all Australian states and territories have a system for this, and it can be really useful for tracking repeat offenders.    

But a lot of people think there needs to be a bigger shift in how the law approaches sexual assault in general.    

Scott Morrison reaffirmed with the allegations against Porter that our legal system is built on the tenant that a person is “innocent until proven guilty”.      

But in the case of sexual assaults, that assumes a victim is lying until it’s proven that they’re not.   

Some lawyers want to change parts of the legal system to get the balance right for survivors, like scrapping unfair cross-examination processes.    

The Takeaway 

All states and territories now have these things called ‘rape shield laws’ in place to stop survivors being put on trial and being forced to answer questions about things like their sexual history and reputation.    

But some experts want to go even further in how cross-examination is regulated, and see a legal framework that protects survivors more.    

It’s a big idea, which would alter some pretty fundamental parts of our justice system.    

But beyond that system, one of the most effective ways to change how we address sexual assault in a legal sense would be to break through the stigma around reporting these incidents.    

In that sense, people like Brittany Higgins and Australian of the Year, Grace Tame have become beacons of hope.    

And for some advocates, even though this moment is hard and traumatic, it also feels full of promise that Australia could finally face up to these problems and listen to survivors.