Myths hurt sex abuse survivors in New South Wales courts

At one trial, a woman said she tried to memorize her alleged attacker’s license plate number, but prosecutors focused on whether she had resisted the alleged attacker, the report said.

The study found that prosecutors routinely challenged the myths, for example by asking complainants to explain why they did not fight. But such questions, the report says, do not challenge the basis of the myths and could reinforce them.

The defense attorneys who represented the accused in the trials were generally polite, but regularly accused the plaintiffs of lying or not behaving like real victims, the report said.

“In some cases, defense counsel reacted to the complainant in a sarcastic, combative, derogatory and condemning manner and asked repetitive questions,” the report reads.

Cross-examination, during which defense attorneys question plaintiffs, is widely recognized as the most traumatic and combative part of a trial, particularly for sexual assault plaintiffs.

The report found that some lawyers opened their questioning with targeted confrontational questions designed to “unnerve” the complainants, while others used “ambush”-style tactics.

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“It is likely that the unpredictability of what lies ahead for the applicants continues to be a major cause of the applicants’ fear and distress when faced with the ordeal of testifying in court,” the report’s authors said.

“[It] Before you called Lifeline it never occurred to you that maybe you should call the police, but that hadn’t occurred to you before either, had it?” a lawyer asked a woman at a trial.

The study found that “flirtatious” behavior on CCTV in bars, substance addiction, mental illness, criminal convictions, and caring for children were frequently raised during cross-examination.

In one case, the report said, a woman was cross-examined for wearing a “négligée with no underwear,” which she denied. In another case, a woman was interviewed because her dress would expose her left thigh when crossing her legs.

Trials have been transformed by waves of reform from 1980: video links, recorded evidence and support staff were introduced in NSW to mitigate the trauma.

The purpose of the report was to assess whether changes to the NSW laws had been incorporated into the court proceedings and the complainants’ experiences. Many worked.

“Closed court hearings, the ability for complainants to testify from a remote location via video surveillance, access to an escort and the use of pre-recorded evidence at retrials were all reforms that worked as intended,” said the report’s author, Professor Julia Quilter from Wollongong University.

Author of the report, Professor Julia Quilter from the University of Wollongong.

Author of the report, Professor Julia Quilter from the University of Wollongong.

However, other procedural features known to negatively impact complainants remain “largely unaffected” by the reforms, the report said.

In one “extreme case,” a judge told the jury that the fact that an applicant’s evidence was prerecorded could be viewed as a weakness in the criminal process.

The researchers, quilter and UNSW professor Luke McNamara, concluded that the reforms worked but made only “modest” interventions in what made the processes so traumatic.

“Rape myths continue to influence the conduct of court cases and plaintiffs come under intense scrutiny,” Quilter said herald.

“This report shows that targeted reforms to sex offense procedures are working as intended, but further reforms are needed.”

The report recommended changes in the way coronavirus cases are presented, with greater emphasis on communicative and affirmative consent, rules and practices, what evidence is admitted to challenge a complainant’s credibility, pre-trial hearings to clarify the ground rules, and better Use of jury orders.

Statistics show that only an estimated 16 per cent of Australians who experienced sexual violence in 2021-2022 contacted police within 12 months and more than a third of recent rape trials ended in a guilty verdict.

For assistance, contact the National Sexual Assault, Domestic Family Violence Counseling Service at 1800RESPECT (1800 737 732).

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Justin Scaccy

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