Experts argue that specialist courts would improve the conviction rate in sexual assault matters and lessen the trauma suffered by victims when giving evidence. Clare Buttner reports
THE FATHER of a young gang rape victim recently warned other victims to spare themselves the trauma of going to court, and instead take justice into their own hands.
“Do not go to court. Sort it out outside of the court, if you get my drift,” he told a newspaper.
“Once you get to court, you will not get justice. It is a justice system in name only.”
His comments have drawn attention to the issue of whether specialist courts are needed to trial sexual assault matters. Advocates of specialisation say it would minimise the trauma experienced by victims during the court process and improve the conviction rate, which is around 35 per cent compared with 70 per cent for all other criminal matters.
In this instance, the victim, Miss C, was 18 when she was raped 25 times by a group of 14 men led by Bilal Skaf back in August 2000. Five harrowing years beginning in 2002 were then spent giving evidence against her attackers, during which Miss C was routinely subjected to humiliating and intimidating defence counsel tactics. During the trial of one of the accused, defence counsel alleged she had been “moaning in pleasure” rather than screaming out for help. Then prosecutor Mary Cuneen was barred from the same man’s retrial in March this year due to perceived bias — a decision that drew public criticism and saw the victim withdraw from the case saying she couldn’t take it anymore. The new prosecutor had just one week to prepare, and the alleged perpetrator was acquitted last month. It was a charge for which the judge at his first trial said the evidence was “overwhelming.”
“When I initially reported (these crimes) I did it under the mistaken belief that when such things happened, people that did bad things were put into jail,” Miss C said after withdrawing from the case.
Outcomes such as this are all too frequent according to Annie Cossins, senior lecturer in the Faculty of Law at the University of New South Wales. Cossins says there is a tendency of to quash convictions on appeal in rape cases in NSW.
“Retrials are just a real problem. In the Court of Criminal Appeal there’s a very high rate of success on appeal in sexual assault matters in NSW. It’s very easy to successfully appeal that there’s been a miscarriage of justice. That’s the problem. The Court of Appeal does have a tendency to allow appeals and quash convictions so if there is a retrial, complainants have to face it all again,” she said.
This trend is alarming given the difficulty in getting someone accused of sexual assault to court in the first place.
The Australian Bureau of Statistics estimates that only 20 per cent of women who are sexually assaulted report the crime. In 2005 there were 9,500 reports of sexual assault made to NSW police but there are less than 450 convictions annually.
A very low conviction rate for sexual assault offences is not unique to Australia, however, some countries have adopted specialist court systems after recognising the inadequacy of the usual criminal trial method.
South Africa and Canada have specialist courts for domestic violence and sexual assault cases, while a network of specialist rape prosecutors in England and Wales has been established.
Cossins, who has studied specialisation in detail, says the benefits are numerous.
“If you have specialised judges that are trained in the area and trained to understand the impact of styles and types of cross-examination, trained to intervene in inappropriate modes of cross-examination, and if you have specialist prosecutors then you get at least two groups who know the evidence law because the way it applies in these trials can be quite different compared to other criminal trials.
“Then, if you also introduce things likes legal representation for the complainant or at least have an intermediary in court to put counsel questions to the complainant, you’ve got a way of improving the experience of the complainant, changing the culture within the court room and hopefully producing different outcomes because there’s very good data showing the conviction rate is very low,” Cossins said.
Karen Willis, manager at the NSW Rape Crisis Centre agrees, saying specialisation results in better outcomes.
“It’s not about building new courts; it’s not about bricks and mortar. It’s about culture within the court. It’s about those courts having a priority to do everything they possibly can to decrease the re-traumatisation of the victim. Sexual assault will never be easy on the victim but there should also be training for judges so they understand the laws in relation to sexual assault. There needs to be a lawyer for the complainant. At the moment she is on her own, generally. There’s a defence lawyer, the crown has a lawyer and the public prosecutor has a lawyer but nobody has the job of looking after her rights and ensuring due process and informing her of what’s going on and so on,” Willis said.
Ensuring cross-examination is not unduly traumatic for the victim is a persuasive argument for specialisation as far as women’s groups are concerned.
“Miss C’s matter is one of the more horrendous ones of late and in her evidence she was saying she was crying and screaming and trying to push them away. And the defence lawyer said to her ‘no no no, you were moaning with pleasure weren’t you?’ The reason [the defence lawyer] would have presented that would be to completely disorient her and make her highly distressed so that he can then ask her more questions when she is in a highly distressed state. The defence lawyer is looking to exploit her decreased capacity to respond. It’s a filthy thing to do to someone. But it is very common,” Willis said.
“The stories are turned around to make out the women enjoyed it, loved it, wanted to be there and now they are just nasty little lying women trying to get back at men. Research in American and in Europe has shown that of all the reports to police in sexual assault matters, only 3 per cent were vexatious reports. Who would put themselves through all of that just to get back at somebody?”
The NSW Government has made some attempts to improve the court process in sexual assault matters, but has stopped short of creating a specialist system.
Amongst the improvements are legislative reforms that mean victims are not required to give evidence again if there is a retrial — although they won’t be spared from further cross-examination.
Amendments have also seen limits imposed on the use of jury warnings — in particular the Longman warning which is no longer necessarily required where there has been a substantial delay between the time of the offence and complaint.
The District Court has also introduced mandatory timetables for sexual assault matters, meaning trials are listed within four months of the date of committal, and no later than six months from committal.
Furthermore, a new provision makes it mandatory for a trial judge to intervene in instances where cross-examination might be oppressive or humiliating. However Cossins said judges are reluctant to intervene because that in-itself may lead to an appeal.
“Judges are very, very reluctant to intervene in cross-examination and with good reason. Some judges have said to me ‘Will I get training in this? How will I know if it’s oppressive or humiliating? If I interrupt cross-examination that’s often a ground for appeal’. So they’ve got some good reasons for being reluctant to use it,” Cossins said.
In 2004, the then NSW attorney-general Bob Debus established the Criminal Justice Sexual Offence Taskforce to examine issues surrounding sexual assault in the community and the prosecution of such matters with the criminal justice system.
The taskforce made 70 recommendations on ways to improve the responsiveness of the criminal justice system to victims of sexual assault. Amongst them was the recommendation that sexual assault matters be subject to a call-over and specialised case management hearings; and courts — equipped with the appropriate technology — be set aside and available for hearing sexual assault matters.
However, despite commissioning the report into sexual assaults, Willis says the state government has essentially done “bugger all” to meaningfully change the system and Cossins agrees.
“Bob Debus wasn’t interested in the idea of specialisation and we knew that at the start and even when the report was handed down we knew we would get nothing from it,” Cossins said.
Both Cossins and Willis were scheduled to meet with the new NSW Attorney-General John Hatzistergos this week where they were planning to raise the issue of specialisation again. But Hatzistergos told Lawyers Weekly his government is not looking at a separate system to deal with sexual assault cases.
“It’s been suggested specialist courts be set up that are devoted entirely to dealing with sexual assault matters and no others. But because sexual assault has no postcode, we are making every District Court a specialist,” Hatzistergos said.
“Specialist courts would mean victims in regional and rural areas would have to travel long distances often for long periods, separating them from friends and family.
“In contrast by equipping all District Courts with the knowledge and resources to deal with sexual assault matters, victims are able to go to any of the 32 locations where the court sits around the state,” he said.