Myths and stereotypes are alive and well in New South Wales sexual assault trials

Sexual assault trials in New South Wales remain a traumatic experience for many victims, and some judges still allow lawyers to ask the same hurtful stereotyped questions while years of reform and societal change have changed their behavior little.

That is one of the troubling conclusions of a Bureau of Crime and Statistics report on the experiences of complainants before the NSW District Court, which shows they often struggle with myths and stereotypes about how they should have acted when faced with a “real… rape” would have been.

Prepared by researchers from the University of Wollongong and the University of NSW, who examined transcripts of 75 court cases over a five-year period, they concluded that New South Wales courts remain places where rape is regularly reported as a crime committed by a stranger, committed in public places and depicted as rapes involving injuries or a weapon. Indeed, the report found that men attack acquaintances or partners rather than strangers in overwhelming numbers, assaults almost always take place at home rather than in public, and complainants contact the police within hours rather than years.

But the “reality” in court is that 84 percent of the women cross-examined were asked why they delayed a complaint, 53 percent why they did not resist the attack, 55 percent why they failed to say no, and 73 percent accused of lying with ulterior motives. “This study shows how bitter the process can be for those seeking justice,” said BOCSAR executive director Jackie Fitzgerald.

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The report noted that New South Wales courtrooms remain “disconnected” from the state’s decades-long attempt to reform the justice system for survivors of sexual violence. When the NSW Crimes (Sexual Assault) Amendment Act was passed in 1981, it was widely hailed as a model of progressive legislation. However, many felt that a male-dominated legal profession and the judiciary still did not treat women equally under the law. Her fears were confirmed in 1993 when a judge issued a five-year $5,000 good behavior bail to 75-year-old Ronald Trafford Allpass, who was found guilty of molesting a nine-year-old schoolgirl. The New South Wales Criminal Court of Appeal then pointed out that Judge John O’Reilly should have imposed at least a period of imprisonment, but did not reverse his sentence.

The BOCSAR report examined whether the changes in NSW laws over the years have actually had an impact on court proceedings and complainants’ experiences. Many reforms turned out to work, including closed court agreements, access to a support person and pre-recorded evidence. But the report’s author, Julia Quilter, a professor at the University of Wollongong, said procedural aspects known to negatively impact complainants were “largely unaffected” by the reforms. “Rape myths continue to influence the conduct of court cases and complainants are subject to intense scrutiny,” she said. “This report shows that targeted reforms to sex offense procedures are working as intended, but further reforms are needed.”

Thanks in part to the #MeToo movement, the true extent of what awaits women and girls in our society has come to light late. However, allegations of sexual assault and harassment in the Australian Parliament have turned equality before the law into a circus. What woman wouldn’t think twice about reporting an assault in any jurisdiction when the country’s political, legal and media institutions have often flouted convention and due process during the legal fiasco between Brittany Higgins and Bruce Lehrmann? (The charges against Lehrmann, who maintains his innocence, were dropped after a mistrial.)

With only one in three cases resulting in a guilty verdict, the BOCSAR report could explain why so few victims of sexual assault are willing to spend their day in court. Some of the report’s much-needed recommendations include changes in how coronavirus cases are presented and allowing evidence that challenges a complainant’s credibility, pre-trial hearings to clarify ground rules, and better use of jury instructions. Such changes are long overdue.