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Sitting in her book-lined corner office at Victoria’s Law Reform Commission, Jennifer Coate is charting the “considerable progress” she says she’s witnessed over her decades-long career working in the criminal justice system.
When she first started out as a lawyer, she says the notion of consent was “not discussed” and only victims of “stranger rapes” were taken seriously – but only if they hadn’t been out late or dressed provocatively.
In court, there were no restrictions on discussing a victim’s sexual history, while defendants were allowed to make “unsworn statements” from the dock – essentially whatever they liked, without being under oath or cross-examined.
“This was 1992 not 1892,” she says. “People think this crusty old system hasn’t been able to move and change, it’s not correct. It really has developed and changed considerably.
“And yet, we know without doubt, that the vast majority of girls and women who are sexually assaulted will not report to the police and do not want to go through our criminal justice system.”
The numbers tell the story – Australia’s criminal justice system is failing victim-survivors of sexual assault.
While one in five women over the age of 15 has been sexually assaulted in their lifetime, almost 90% will not report to police. Of the women who do make a report, only a quarter will see their perpetrator charged. And even fewer will see their perpetrator plead guilty or be convicted. From decade to decade, the numbers don’t shift.
According to Victoria’s Sentencing Advisory Council, there were 23,000 reports of rape to police between 2010 and 2019 but only 1,000 sentencings for rape offences. More recent data from New South Wales shows there were 9,138 sexual assaults reported to police in 2022 but only 1,016 convictions.
After the #MeToo movement revealed the staggering prevalence of sexual violence, after the March4Justice women’s marches that swept across Australia in 2021, the reality is that justice for victims remains elusive within the criminal justice system.
For the past year, the federal government’s Australian Law Reform Commission has been conducting a review into justice responses into sexual violence, and attorney general Mark Dreyfus will soon table his report, addressing both outcomes of cases and the treatment of victim-survivors.
Managing partner of law firm Marque Lawyers, Michael Bradley, has represented hundreds of sexual violence survivors and chairs the Rape and Sexual Assault Research and Advocacy Initiative. He says under Australia’s criminal justice system “rape is effectively decriminalised”.
“If you look at the probability someone’s going to report to police, the probability police will prosecute, the probability someone is going to be convicted and punished for that rape – it’s somewhere south of 1%. That is negligible,” he says.
“Your chances of actually facing consequences for committing rape are almost nonexistent and that is by design. And if we are all comfortable with that, then cool, let’s stick with what we’ve got. But I’m not.”
A two-year landmark inquiry by the VLRC into the criminal justice system’s response to sexual offences, released in 2021, found most women will not come forward with their experience of sexual assault because they do not want to go through a criminal trial or because they fear they will not be believed. (Research suggests that no more than 5% of all reported allegations are false).
For those who end up going through the process, the inquiry found most sought validation rather than retribution – they wanted to have their story believed and heard.
Instead, many come out more traumatised than they were when they went into it. As Dreyfus said in a statement: “All too often, seeking justice adds to the trauma experienced by victims and survivors.”
In many cases, this is because the very principles that uphold the criminal justice system inhibit the delivery of justice to sexual assault victims. As a result, many academics and advocates, including Bradley, are calling for a complete overhaul of the system .
‘A criminal justice system, not a victim justice system’
The structure and ideology of our criminal justice system comes from another time; back to William the Conqueror, the first Norman King of England.
In previous centuries offenders were made to compensate victims to avoid blood feuds and private prosecutions were commonplace, says Michael O’Connell, South Australia’s inaugural Commissioner for Victims’ Rights. But under William I, crime came to be considered a disruption to the “King’s Peace”. Rather than injuring the victim, crime produced a “debt to the state”, he says.
The concept continued to evolve until the 19th century when, O’Connell says, the “bureaucratisation of the criminal justice system was complete”, via the creation of a police force and public prosecutions.
Michael Bradley
The right to silence doesn’t work because it dips the scales entirely in the defendant’s favour
Since then, the justice system has largely remained unchanged.
“This is the criminal justice system that Australia inherited on colonisation. It remains a criminal justice system, not a victim justice system,” O’Connell says.
The former police officer says Australia’s adversarial system lives up to its name as it largely plays out like a “dispute” between two sides – the Crown, or prosecutor, and the defence. Victims are rendered “witnesses to a crime against the state and are almost entirely excluded from the criminal justice process, except when they are needed to testify”.
Dr Kerstin Braun, a senior lecturer in law at University of Southern Queensland, says the prosecutor does not represent the victim. Rather, they represent the Crown – the reigning king or queen – and serve the court and the public interest.
This can create a conflict between the victim and the prosecutor because their interests – and legal obligations – do not always align, she says.
For example, prosecutors are required to hand over all relevant materials to the defence – even if it is not in the victim’s best interest or is favourable to the defendant.
“This can really come as a shock to victims, who go into the criminal justice process with this common misconception, probably based on television shows, that the prosecutor is their lawyer,” Braun says.
“Prosecutors are not the victim’s legal representative, and while they will try to also represent their interests, they are not their representative in the way a defence lawyer is to a defendant.”
‘Of course, she goes on trial’
A cornerstone of the criminal justice system is that a jury must be convinced “beyond a reasonable doubt” that a crime has occurred. But in sexual assault cases, this can be a near impossible standard to reach.
The prosecution holds the “burden of proof”, meaning it is their job to prove a sexual assault occurred. In most jurisdictions, this requires proving two key points: that the victim did not consent, and that the perpetrator also did not reasonably believe they were consenting.
This can be difficult, given sexual assault is usually committed by offenders known to the victim and in the absence of witnesses or physical evidence.
It usually means a complainant will need to give evidence and be cross examined. They may also be required to hand over their phone, social media accounts and text messages, to be examined by both prosecutors and the defence. The defence can also request the victim’s counselling notes and other confidential records.
The accused has a right to a fair trial, a right to silence, and a presumption of innocence. They are not required to take the stand, and in the majority of cases, they don’t.
Bradley says the measures are in place to protect a defendant from wrongful conviction, based on a concept called Blackstone’s ratio, named after the English jurist William Blackstone who in the 1760s wrote: “It is better that 10 guilty persons escape than that one innocent suffer.” (This argument can be traced further back, to the 15th century when Sir John Fortescue, chief justice at the time of Henry IV, maintained that it was better that the guilty escape than the innocent be punished.)
But he says that in cases of sexual assault the right to silence “doesn’t work” because it “dips the scales entirely in the defendant’s favour”.
“What it means is that when you get to trial, the only evidence the court hears is that of the victim and so, of course, she goes on trial,” he says.
“That’s compounded by the fact that the prosecution has to prove not just the act, but the absence of consent, and the only way they can prove that is through her. For the defence, the quickest way to raise doubt is to raise doubts about consent.”
A Victorian defence lawyer, who asked for anonymity so they could speak freely, agreed.
“You kind of have to put the victim on trial. You’ve got to make the jury doubt them.”
Rape myths, re-traumatisation and reforms
Creating doubt in cases of sexual assault is not especially difficult because society’s attitudes and understanding of the crime have changed very little over time. Stereotypes about how victims of sexual violence are supposed to behave, as well as “rape myths”, continue to feature in courtrooms around Australia, shifting the blame from the perpetrator to the victim.
As part of the 2021 review, the VLRC commissioned Prof Julia Quilter from the University of Wollongong and Prof Luke McNamara from the University of New South Wales to analyse the transcripts of 25 rape trials in the County court of Victoria from 2013 to 2020.
Despite the introduction in 2017 of jury directions reforms in Victoria – which gave judges the power to instruct jurors that victims may not be able to recall all the details of an offence and describe it consistently every time – Quilter and McNamara found that in most trials, there was deliberate use of cross-examination questions to confuse or “shake” the complainant’s account.
Misconceptions also featured, including suggestions that a complainant was lying because they delayed in reporting the sexual assault. (The majority of victims who experience rape and sexual offences delay disclosing). All trials included evidence of the complainant or the accused being intoxicated at the time of the alleged rape. Lines of questioning also “inferred consent to later sexual activity” based on the complainants’ clothing, or “flirtatious” behaviour.
Another analysis of trial transcripts by Quilter and McNamara of New South Wales cases – the largest analysis of sexual offence trial transcripts in the state in almost three decades – found the majority of complainants were accused of lying and fabricating the event for an ulterior motive. (The study, incorporating 75 cases, was conducted between 2014 and 2020, before NSW introduced new jury directions on consent and trauma.)
More than half were cross-examined for having failed to verbally communicate non-consent or failing to physically resist, while more than three-quarters were cross-examined for having an incomplete or inconsistent recall of events. Research shows that victims are more likely to freeze and cooperate rather than fight off the offender, and trauma impacts a person’s recall.
Despite the 2017 reforms in Victoria , the 2021 VLRC review recommended introducing more juror directions and that they be given at the earliest opportunity and repeated at any time during the trial.
The recommendation was acted upon by the government in 2022, with a series of additional directions legislated, including that a person can be not consenting to a sexual act even if they are not threatened with physical violence or they do not protest or resist. A person can also not be consenting even if they had slept with the person in the past, went to their home or acted in a way that is “perceived to be flirtatious or sexual”.
New South Wales’ law reform commission also made almost the same recommendations in 2020, and new jury directions and consent laws came into effect in 2022.
However, Coate notes it will be difficult to assess the impact of the directions because it is prohibited in Australia to speak to jurors after they make their decision.
Experts such as Mary Iliadis, an associate professor of criminology at Deakin University, and co-convener of the Deakin Network Against Gendered Violence, argue that the use of rape myths and the interrogation of complainants lead to significant re-traumatisation of victims, which have long-lasting impacts.
“This is a problem when we consider that the integrity of the criminal justice system also rests on victims’ confidence that the reporting of crime will not cause further harm or worsen existing harm,” she says.
Iliadis says the safety of the community is also at risk if victims are unwilling to go through the legal process.
In light of these structural issues, experts have suggested reforms.
Law reform commissions in NSW and Victoria have called for the use of independent experts to address topics such as how memory works and why victims may display counterintuitive behaviours after a sexual assault, such as maintaining a relationship with the accused.
Some submissions to the ALRC are calling for a more radical rethink, such as the Queensland Sexual Assault Network, which has suggested the introduction of a “civil approach” to sexual assault cases, where an accused would be held to the “on the balance of probabilities” standard of proof and required to take the stand. In last year’s defamation action brought by Bruce Lehrmann over rape allegations broadcast by Network Ten it was found by Justice Michael Lee that on the balance of probabilities, Lehrmann raped Brittany Higgins. Lehrmann denies the allegation and is appealing that decision.
They also suggest that “bad character” evidence relating to a defendant, such as the fact that they are a heavy drinker or use illicit drugs, could be admitted to trial in some circumstances, as well as inconsistent statements they have made.
However, such changes have been met with scepticism by the Law Council of Australia, the body that represents all state and territory bar associations and law societies, which warns against “undermin[ing] key safeguards of the criminal justice system”.
“The presumption of innocence, the right to silence, the right to a trial by jury, the burden of proof resting on the prosecution, and the criminal standard of proof (beyond reasonable doubt) are all essential to the integrity of the criminal justice system,” its submission to the ALRC inquiry read.
This view was shared by criminal defence lawyers who spoke to Guardian Australia.
“We’re talking about an outcome that could lead to someone being put in jail, that is no small thing,” one says.
“The burden has to be on the state – the state has all the power, the money, the resources. They have to be able to prove it without any help from the defence. To shift the dial on that would be to completely alter the system.”
Another lawyer says the introduction of affirmative consent laws in NSW, Victoria and the ACT in the past few years, which emphasise that consent to sexual activity should be actively communicated and cannot be assumed based on silence, had “helped to even the scales”.
“That is a major, yet relatively new change. I don’t think we’re yet to see it fully play out,” they say.
Legal representation for victims
Bradley says despite reforms, such as the broadly welcomed introduction of affirmative consent laws, the adversarial criminal justice system remains “ill adapted” to handle the nuance involved in sexual assault cases.
“The criminal justice system applies a strict binary to some very complex situations. It says either you’re guilty – and you’re the worst person in the world and you need to be jailed. Or you’re not guilty – and she’s a liar and you’ve done nothing wrong, forget this ever happened,” Bradley says.
“It completely forecloses any possibility of the guy who’s been accused of committing a rape admitting he’s done anything wrong, because the consequences of admitting it are catastrophic.”
It has led him to see restorative justice as a possible approach for some sexual assault cases, because it would allow perpetrators to genuinely participate in a process that could provide the victim with some closure.
Restorative justice, which has widespread support from police, prosecutors, courts, victim advocates, criminal barristers and the VLRC, and is already in place in the Australian Capital Territory, brings together victims of crime and perpetrators in a facilitated environment, guided by trained professionals and with the support of counsellors.
Victims can explain the impact of the perpetrators’ offending, while the perpetrator is supported to take responsibility, apologise and make amends – in most cases without legal ramifications.
Braun and Illiadis, however, say the only way victims will be given equity and a genuine role in the system is via the introduction of their own legal representation.
Illiadis says the concept takes inspiration from the inquisitorial legal systems in countries such as Germany, where victims of serious violent crime are afforded the status of “secondary prosecutor”. They can engage lawyers to represent them, make submissions, cross-examine the accused and make a closing argument. In Denmark and Sweden, victims of sexual offences can engage a lawyer from as early as when they decide to report to police.
But there is resistance to the idea of victims’ lawyers within legal circles and at the VLRC.
Coate says while victims should be provided their own legal representation at particular points in the process, such as confidential communications applications, it would “create problems in the trial process rather than solutions”. The inquiry instead recommended they be provided with a “victim’s advocate” to support them through the process.
The inquiry also recommended lawyers receive special accreditation and training to appear in sexual offence cases, which would be accompanied by higher fees, in an effort to attract the best people to the work.
But Braun says such tinkering around the edges of the criminal justice system is not enough.
“We’ve been talking about this issue – how we can improve the situation for victims of sexual offences – for 50 years,” she says.
“You can play around with the current structures of the adversarial system – and we have – but it hasn’t really changed much.
“It’s time we try something else.”
