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​More reforms needed in sexual violence trials

Sexual violence trials need increased reform to improve the process for victims, a new study has revealed.

user iconLauren Croft 10 August 2023 The Bar
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While previous reforms have made improvements to the experience of victims in sexual offence trials, it’s been 40 years since legislative changes were first made – and a new study has shown that various aspects of how trials are conducted still result in a negative experience for victims of sexual violence.

Experience of Complainants of Adult Sexual Offences in the District Court of NSW: A Trial Transcript Analysis is the largest study of its kind since the landmark 1996 NSW Heroines of Fortitude Report.

The study, commissioned by the NSW Department of Communities and Justice, through the NSW Bureau of Crime Statistics and Research, was undertaken by Professor Julia Quilter from the School of Law at the University of Wollongong (UOW) and Professor Luke McNamara from UNSW. The pair analysed more than 30,000 pages of transcripts of 75 sexual offence trials finalised in the District Court of NSW between 2014 and 2020.

 
 

As part of the study, the trials were analysed and reviewed, in terms of reviewing the operation of legislative and privacy protections, examination-in-chief and cross-examination approaches, prosecution responses, judicial interventions, rules of evidence and jury directions.

“It was a huge undertaking, but one that was significant, and highlights important issues in the law reform landscape. We found that there have been some improvements to complainants’ experience in sexual offence trials since procedural reforms started in the 1980s,” Professor Quilter said.

“Closed court arrangements, the opportunity for complainants to give evidence via CCTV from a remote location, access to a support person and use of pre-recorded evidence in retrials were all reforms working as intended.

“We also found that most of the time, judges and lawyers adopted respectful modes of communication towards victims and were sensitive to the need for breaks when the complainant was distressed or tired, which was positive to see.”

Despite these improvements, the study showed that many sexual offence trials continue to feature practices that lead to negative experiences and outcomes for complainants and victims.

The study identifies a number of areas for attention, including how the Crown case is presented (with more emphasis on communicative and affirmative consent), the rules and practices governing the relevance of evidence and the admissibility of credibility evidence (and associated cross-examination questioning), wider use of pre-trial “ground rules hearings” and better use of jury directions.

Professor Quilter added that trials still displayed a continuing focus on the conduct of the victim and whether they had consented, with less attention paid to the accused’s knowledge in relation to consent.

“We found that rape myths and stereotypes about how a genuine victim of sexual violence should behave featured prominently in the trials we examined,” she said.

In 84 per cent of the trials in the study, complainants were cross-examined about having made a delayed or incomplete complaint, 76 per cent were questioned about having incomplete or inconsistent recall of events, and 53 per cent were regularly cross-examined on having failed to physically resist, as well as failing to verbally communicate non-consent.

Questioning and closing submissions that accused the complainant of lying were common – and in 73 per cent of trials, the complainant was accused of fabricating the sexual offence allegation for an ulterior purpose.

The researchers also found that complainants who were intoxicated at the time of the alleged offences faced additional scrutiny, including suggestions of “drunken consent” and unreliability.

As part of the trial, defence counsel were given space to question victims on a range of topics, including prior flirtatious behaviour and aspects of their past said to be “relevant to credibility”. This included topics such as substance use, mental illness or having children in care.

Despite this, Professor Quilter said the problem is not that judges and lawyers are ignoring or misapplying special rules for sexual offence trials, but that the reform process that began more than 40 years still has a way to go.

“Reforms to date have been important, but there are aspects of what makes sexual offence trials so traumatic for many complainants that have not yet been addressed,” she said.

“There is scope to do more to improve the experience for complainants so that stereotypes and narratives that are out of step with contemporary values no longer feature in sexual offence trials.”

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