A grim reality: The justice system and sexual assault cases

By Naomi Neilson|27 April 2020
Bri Lee

Leave a little bit of evidence, and offenders of a murder are easier to prosecute. Leave the smallest remorse and offenders of manslaughter or burglary or drug trafficking and a whole range of other major criminal offences are more likely to be prosecuted. Leave the most gruesome, traumatic scene behind from the brutal assault of a female victim of sexual assault and rape, and the criminal justice system freezes up.

Sexual assault survivors are Australia’s victims of an almost invisible crime, one which fails to make it through the ranks of justice almost every time. For most women, taking their assault to police is a burden in and of itself, out of fear of being judged or ridiculed or as one advocate put it, subjected to a game of “Russian roulette” where they either stand to receive appropriate assistance or they get “treated like rubbish”.

In her memoir Eggshell Skull, Bri Lee said looking at victims of sexual assault from the criminal justice system was similar to looking at a “map of human misery”. In Ms Lee’s role as a judge’s associate at the Queensland District Court, she says looking out her window became less like noticing landmarks and more like noticing a “constellation of crimes”. She says a failure to judge these crimes goes back to the system’s origins.

“I see it as pretty simple,” Ms Lee tells Lawyers Weekly. “The laws we have now come across from the [UK] at the time of invasion and at that time, women and children were literally under the dominion of men. What we’re talking about is a system in a constant state of trying to catch up with how society has progressed.”

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“In my opinion, and in the opinion of many others, it has never gotten to a point where it has met the principles of ideas of equality that society has reached.

“It’s always a dozen steps behind.”

This opinion is shared by juror researcher and Monash University associate professor of criminal law Jacqueline Horan, who says there are “lots of people doing lots of things and they have to because there are a lot of problems with the system”.

“The criminal justice system was set up historically for the traditional offences that are assault or murders, which involve men killing men or men punching men. Rape is very different because they are done without witnesses, they are done silently and nobody is there to see what happens so you have a problem of one word against the other,” she says.

Growing up, there is a lot that young girls are taught about rape and assault: don’t put yourself in a position where you are vulnerable; always dress appropriately and do not show too much skin; if you feel like you are being followed, you probably are so make sure you call someone; and, if you are actually assaulted after all that, take it to police but don’t expect much. Only the very lucky get justice out of sexual assault.

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Around 120 million girls and women worldwide have experienced some form of forced sexual intercourse at some point in their lives – that’s one in 10 women who have been subjected to a horrifyingly scarring, life-altering attack that changed everything. These women are the victims of an assault that cannot be judged as clearly as a murder can, and it’s this attitude in the justice system that lets the world’s vulnerable down.

“One of the biggest problems we have is that people don’t feel like they’re going to be supported when they make a complaint,” Ms Horan says. “There’s been a lot of work done by the police and the courts to fix it, but there’s still a lot more to do.”

It is a common practice to determine a case’s outcomes by looking at past judgements and comparing similarities. It’s a given that the justice system seeks guidance from its past, but Ms Lee says this is part of the reason why “it’s so slow to catch up”. It’s not an issue with just gender only, but across the law system as a whole.

“The law is just so clunky and slow. The thing for me and the central frustration I have had with people who are wary of progress is that they think it has anything necessarily to do with upsetting the balance of the presumptions of innocence. They think it’s better if 100 guilty men go free [rather than] one innocent man be locked away,” she says.

The role of advocates in changing ‘archaic’ sexual assault laws
Ms Lee is the author of two books, a freelance writer, speaker, academic, an advocate, qualified to practice law (but chooses not to) and a victim of sexual assault. Her book Eggshell Skull takes a stunning look at how hard it is for victims, much like herself, to find justice in a deeply flawed system that presumes perpetrators are innocent.

Ms Lee’s story follows her experiences as first an associate to a highly respected and well-liked judge and then, two years later, her own trial of an assault that happened to her when she was only very young. It’s an incredible look at how the Australian system, and particularly the Queensland system, has let down sexual assault victims.

“What statistics show is that gross, gross numbers of perpetrators are not only never tried, but they’re not even charged. They’re never even properly investigated,” Ms Lee says. “The statistics show it, and I think there’s a frustrating connection between a lack of care about sex crimes and lack of resourcing and prioritisation of dealing with it.”

“Most sentencing principles suggest it’s the second-most serious type of crime, second to homicide offences. At least one in five Australia women, which means that at least 10 per cent of the Australian population, are experiencing these crimes.

“Yet comparative resourcing [for sex crimes] just absolutely don’t match up.”

As it currently stands, the 110-year-old “mistake of fact” legal defence in Queensland allows for an accused rapist to argue they had a mistaken, but honest and reasonable, belief that the sexual act was consensual. It is an argument regularly used by accused rapists in the state, who can contest that intoxication, a person’s behaviour, previous flirting or limited English caused them to believe the other person had consented.

In July 2019, Ms Lee successfully used her new-found platform to inspire major change in Queensland. The “mistake of fact” law was referred to the Law Reform Commission for review and in January 2020, the commission released the consultation paper and began the process of accepting submissions. At the time of writing, the government in Queensland had released its first framework to prevent sexual violence.

Minister for the Prevention of Domestic and Family Violence Di Farmer says the guide builds on Queensland’s progress so far, and brings “together the evidence and advice of survivors with the expertise and experience of the people there to support them”.

“While community attitudes are changing thanks to social movements #MeToo and to #TimesUp, and the committed advocacy of survivors and governments, evidence has shown experiences of sexual violence are widespread,” Ms Farmer says.

The Queensland government may be celebrating its changes – and of course most, if not all, are welcome changes – but it still has a long way to go.

“Queensland is the worst state,” is Ms Lee’s criticism.

“Something that is really frustrating is that we have all these examples from Australian jurisdictions and other jurisdictions about procedural things that make survivors more comfortable, even reporting crimes, that can stop unnecessary three, four, five years delay between reporting and trial,” Ms Lee says in relation to its systems and the slow pace Queensland has moved to catch up with the rest of Australia’s jurisdictions.

Lawyers Weekly spoke to Queensland Bar Association’s president Rebecca Treston, who says the recurring themes in critiques of sexual assault offence laws are the claims that there is a high rate of acquittal in cases, which shows provisions need amending.

“The association is not aware of any published data that objectively supports premises or the conclusion,” Ms Treston says. “Without any evidence to support the claim, these descriptions of Queensland’s laws as archaic seem to be made without foundation.”

On the “mistake of fact” law, Ms Treston explains it applies to every criminal offence in Queensland, apart from a small number of largely regulatory offences.

“Significantly, it requires an offender to actually hold a belief, and that belief be honest and reasonable in the circumstances. This means that offenders who are reckless as to consent, whether because of alcohol or otherwise, simply do not hold a belief that a complainant is consenting, let alone one that is both honest and reasonable,” she says.

“Suggestions therefore that the law needs to be changed as to prevent reckless or the intoxicated defendants escaping criminal liability are ones which understand law.”

Justice system failing victims right from step one
Queensland is already at a highly contentious point in its flawed legislation and in how it treats victims of sexual assault, but its worst part is at the policing stage. Drawing on new data from the ABC’s independent investigation into police handling of victims, Ms Lee describes police officers as being the “biggest problem in the system the way it is now”.

The ABC flags that more than 140,000 sexual assaults were reported to Australian police in the 10 years to 2017. Police rejected nearly 12,000 reports on the basis they did not believe an assault had occurred and they “cleared” more than 34,000 without making an arrest due to a mirage of reasons, such as not having enough evidence.

Let’s take a look at Queensland in particular.

Police rejected 20 per cent of the sexual assault reports; one in five sexual assault reports were “unfounded”, compared to the one in 20 in NSW; Queensland’s regional councils were among the areas with highest unfounded rates, rejecting 25 per cent of the assaults reported in 10 years; and nearly one in three sexual assault reports are withdrawn in Queensland.

Queensland’s police problems were highlighted in a scathing report by the Audit Office which found police pressured victims into withdrawing complaints. Officers were found to have also changed the status of some cases from unsolved to unfounded.

The report noted that a sharp increase in offences being classified as withdrawn from across the Gold Coast district is not attributable to victims uniformly deciding to have their case withdrawn, but rather the Gold Coast divisions employing methods that are aimed at encouraging victims to withdraw as a means to increase clearance rates.

“Despite the withdrawal of complaint form specifically stating that a victim’s withdrawal of complaint must not be ‘solicited or induced by any police officer’, we have obtained evidence that demonstrates some divisions within the Gold Coast district are inducing or leading victims to withdraw their complaints,” the report says.

It included police officers meeting with victims to advise them that the police exhausted their investigation and to solicit a withdrawal from the victim. What’s worse is that this was founded to be a longstanding issue, with traces back to 2013.

“Queensland is the worst state at the policing stage,” Ms Lee says. “It’s naive to think that with how archaic and how behind Queensland’s legislation is, it would be absurd to think that doesn’t flow back through to how outdated policing attitudes are.”

In her memoir, Me Lee explains that her father was a cop and that when she thought of officers, it was her father she thought of first. The book begins with him jumping out of a car with Ms Lee still in it to confront a couple fighting in the street. She would come home and overhear him talking to her mother about assaults, once asking what “rape” means but never once thinking while still a kid that it would ever really apply to her.

I asked Ms Lee whether she believes this issue in this part of the justice system is due to the attitudes of particular officers, rather than an organisation-wide problem. Ms Lee agrees it was an individual issue and said it was the “biggest issue in the system”.

“Individual police officers and also individual prosecutors are exercising their individual discretion and there are currently no effective mechanisms requiring them to account for those individual decisions,” Ms Lee tells me in response.

“In my personal experience, and from everything I’ve heard and read in the last three years, survivors are basically left playing Russian roulette. You can walk into a police station and get a really incredible cop that has done the specific training, or you can walk into a police station and get treated like absolute garbage.”

I reached out to the police union in Queensland for a response to the allegations, long before public, for a chance to respond. They never replied. Take that as you will.
Issues within the courtroom: Judges and the defence team

Judges have a major effect on the outcomes of a sexual assault trial, whether there is room for unconscious bias or not. A more extreme example came from a rape trial in December 2019, in which a man appealed against a judge’s decision to continue their criminal trial while excluding evidence of the complainant’s history of false complaints.

But there are lesser, and certainly more subtle, ways judges can influence the court’s decisions in a rape or sexual assault case. Ms Lee says it’s “not as spoken about that judges have a lot of control over how trials are run in their courtrooms” and set tones.

For example, there are some judges that won’t accept aggressive shouting in cross-examinations, whereas others will: “It’s widely known that some judges, if they do not appreciate the tone or angle of the cross-examination, will politely interrupt counsel, whereas some judges absolutely would not. It is their position that counsel should not be interrupted unless an actual injustice is about to occur,” she says.

An example Ms Lee brought up is the rule which says counsels in cross-examinations cannot ask the same question multiple times. However, in reality, during a multi-hour and multi-day cross-examination of a sex crime complainant, victims are still subjected to “extraordinarily similar questions” put to them “repeatedly and repeatedly with goals of trying to tease out any possible, tiny inconsistency in the story”.

“It’s a really fundamental frustration I’ve had in touring my book and doing so much of this advocacy that it is absurd to me that people think the individuals doing justice don’t have a fundamental effect on the way justice is done,” Ms Lee says.

“I talk about the absurdity of the idea that justice is blind or that we have these inherent problems in our legislation and in our processes and procedures and in our defence positions, and people start getting really uncomfortable.”

Another issue with defence exists in the ability to submit a peremptory challenge, with the design of taking away jurors based on gender, race and career.

Ms Lee says defence use theirs a lot more frequently. It has been so rejected by some jurisdictions that some states, like Victoria, have dropped down to four challenges and, in the UK, where Australia adopted the system, it has been abolished altogether.

“My concern with the peremptory challenges is that we should not have them at all as there is no research that supports the decision of the defendant to challenge particular people. It’s based on superstition and myth,” says Ms Horan.

For example, as it stands, there is a “fashion” to pre-emptively challenge teachers and nurses as they are predominantly female. Ms Horan notes it’s an example of why justice systems should abolish peremptory challenges “because they work in a sexist way”.

“Peremptory challenges are a very, very frustrating thing,” adds Ms Lee. “There are so many problems with the jury and I’m interested in seeing what is coming out of New Zealand where they are trialling more judge-alone trials for sex crimes.”

Juries an ‘awesome’ thing in cases, but rape trials prove too challenging
The main issue held with jurors in rape trials is the unconscious bias they bring with them into the courtroom. Ms Lee says jurors are the cross-section of an Australian community, but society is “racist, transphobic and homophobic, not to mention sexist”.

“It’s questionable how much jury direction is listened to and understood by jurors, but that is opening a whole separate can of worms around discussions where jurors work in sex crime trials and the answer is not very well,” adds Ms Lee.

Lawyers Weekly spoke to Ms Horan to get her unique view into how jurors will operate in sexual assault cases. Part of her research looks at the perceptions of the evidence presented to jurors, as well as attitudes and unconscious biases of a typical juror.

“Juries generally in the criminal justice system are an awesome thing,” Ms Horan concurs. “But rape trials are the most challenging for the justice system and the juries.”

Ms Horan adds a 12-person jury is a good way of judging cases, rather than introducing a panel of assessors, as it cuts down unconscious bias. If somebody in the jury says something wrong about the behaviour of a victim in a rape case, there is often another juror to challenge this opinion and point out flaws in the argument.

“Everyone is a product of their own experiences. Even judges have unconscious bias. If you leave it up to just one person, you run the risk of biases not being challenged,” she says.

There have been some improvements to the juror system, particularly in Victoria, that aim to cut down the unconscious biases and the effects this has on sex crimes cases. For example, Victoria allows a psychiatrist to explain to the jury what is normal and not normal for a victim to be doing; for example, it is normal for a victim to resist an internal investigation by a medical officer and it does not mean they are being untruthful.

Another concern is in prejudicial publicity, which is a “huge issue for the criminal justice system going forward”, as the old ways no longer deal with the concerns.

Ms Horan points to disgraced Cardinal George Pell’s case, which saw an order come from the court to prevent local newspapers from publishing details. However, just one search and the world could read updates in international media sites.

“It’s a huge problem and not easily solved either,” says Ms Horan. “One of the saving graces of the juries – and it’s very hard to unlearn the things you’ve learnt – but juries are really diligent and want to do the right thing. So, if the court explains the rationale for why they shouldn’t look at these things online, the jurors will generally accept that.”

There have been many suggestions for how to improve the jury system, including just abolishing it altogether. Another option is limiting it to specific experts – but there looks to be several barriers preventing major change, according to Ms Lee.

“I think it is really telling that when it is suggested that juries should be limited, people that speak up against the law are the bar associations, who historically have always had the least progressive attitudes towards reforms to do with consent law,” she says.

Having been given the opportunity to respond to this critique, Ms Treston says that bar associations are uniquely placed to advise on sensible law reform that actually works in practice, because members are daily in court conducting cases for both parties.

“Inevitably, particular interest groups will not always share the bar’s view. But it would be a mistake to ignore the views of the association whose members have a thorough knowledge of how the law works, and understand the consequences of ill-conceived or hasty reform that is not founded on evidence,” Ms Treston says.

What’s the future of the justice system and its handling of sex crimes?
So, what happens now? According to Ms Lee, the last thing we should be advocating for is increased sentencing and penalties for offenders as the “knee-jerk” response will not go far in preventing future sexual offences or potential rehabilitation. She said she believes so much against it that she will never advocate for longer sentences.

Ms Lee says these calls have been borne out of the shouting from #MeToo, #TimesUp and an overall social media campaign. While shouting is necessary to promote legal challenges and is overwhelmingly encouraged, shouting for longer sentences can only be damaging. More justice for the victims should not mean less for the accused.

“All I’ve ever cared about [are] investigations and prosecutions and charges,” she adds. “It’s a very frustrating thing that the rare time you do get a conviction, and the rare time you do get press coverage of the matter, the knee-jerk response is ‘how come he was locked away for 10 years, he should be locked away for 25’,” she says.

“I don’t think that helps at all.”

Australian states should also be cautious about introducing an alternate court for any potential dispute resolutions. Some victims of sexual assault and rape have called for a specialised court that would achieve their wishes of receiving a formal apology from their attacker and have their assault recognised by the legal system.

For starters, Ms Lee says it’s a “really frustrating thing” that the justice system has been split between the states: “There is almost like a different kind of Russian roulette where depending on the state in which you’ve been assaulted, your options for getting what you define as justice can be really different [state-by-state].”

Ms Lee says courts should always respect survivors’ wishes for how their matter should be dealt with and to keep the process of inquiry and the process for justice under their control. And although onboard with an alternative dispute resolution court, Ms Lee says it should still ensure that there are formal records of an apology on the record.

“The huge part of the wonderful potential of alternative dispute resolution is a prospect that the person could learn and never perpetrate again, and obviously all anyone tries to achieve is prevention and that is something that would be a potential by-product of a more conciliatory process,” Ms Lee explains of the specialised courts.

“The reality is that there are people that have already offended multiple times or would give an apology to not risk going to jail and would continue to offend.”

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A grim reality: The justice system and sexual assault cases
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