Historical claims should not be ‘barrier to justice’, legal experts warn

By Naomi Neilson|08 March 2021
Christian Porter

Legal academics and experts have warned that while there are some unfortunate obstacles to bringing a historical case to justice – especially if there is a problem with reporting or investigating – there are always “avenues that can be explored”.

TW: Please be aware this article contains content around sexual assault and rape

In the wake of federal Attorney-General Christian Porter’s announcement that he is the cabinet minister accused of a historical rape, the legal profession’s calls for an independent inquiry have been met with claims that it would be impossible. However, legal experts and academics argue that it is never too late to investigate.

Swinburne University’s Rachael Burgin, Bond University’s Jonathan Crowe and University of Sydney’s Bri Lee have cautioned victims from seeing the news of ministerial and parliamentary sexual assaults as evidence that an attack that happened some time ago would be impossible to achieve justice for. 

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“The decision to report a ‘historical’ rape or sexual assault can be challenging and every case is different. Victims may feel the prospects of attaining justice are limited in the years or decades after the event,” they wrote in an analysis in The Conversation. “However, police can still investigate and bring charges no matter how much time has passed.”

The academics said that while it is not uncommon for survivors of sexual violence to delay reporting to the police, friends or family, it should not be a deterrent for them when it comes to making the decision later in life. A person can theoretically be “charged or convicted years or decades after the alleged acts” have taken place. 

It is, however, important to note that the longer the wait, the more challenging the system can be for victims. In the analysis, the experts wrote that while some evidence can be “lost” to time and impossible to review in a current court trial – including CCTV footage or medical tests – there are some avenues still available. 

Some survivors are wary of being cross-examined at trial, especially when there has been a delay between the alleged crime and the complaint. It is common for barristers to spend hours “going over and over small inconsistencies” in their mission to discredit the victims’ credibility and reliability of a historical assault. 

“In recent years, the laws in different jurisdictions have seen some improvements to how historical sexual offences are prosecuted. For example, if the complainant told a friend or a relative of abuse around the time it occurred many years ago – [and there is proof of that conversation taking place] – that friend or relative can be called as a witness to recount the report,” the three experts wrote. 

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While it is exceptionally rare to prosecute an assault where the witness has died – and especially without complainant’s testimony – this is “often still technically” a way for a prosecution to proceed “because it is the state, not the individual, bringing it”. 

Help is available. Call Lifeline on 13 11 14 or Respect on 1800RESPECT.

Historical claims should not be ‘barrier to justice’, legal experts warn
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