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March 4 Justice Rally Held For Action On Gendered Violence In Canberra, March 15
March 4 Justice rally: recent events have made clear that rape culture is still a dangerous daily reality for women all across Australia.
Photograph: Jamila Toderas/Getty Images
March 4 Justice rally: recent events have made clear that rape culture is still a dangerous daily reality for women all across Australia.
Photograph: Jamila Toderas/Getty Images

Barriers to justice: 'We are still governed by the idea that women lie about sexual assault'

This article is more than 3 years old

So few victim-survivors report to police, even fewer make it to court. What are the obstacles and where is reform required?

Sexual assault occurs at every level of Australian society, from homes, schools, to workplaces and even, allegedly, the houses of parliament. Recent events have made it explicitly clear that rape culture is still a dangerous daily reality for women all across the country.

And yet justice remains elusive for the vast majority of victim-survivors. Measurements are complex but the statistics are uniformly low – of the estimated 200,000 sexual assaults that occur in Australia each year, only 11-13% report to police, about 5% make it to trial, and about 2% result in a conviction.

With tens of thousands of people attending March4Justice protests around Australia advocating for change, what does “justice” mean when it comes to gendered violence, and how could it be reformed?

Going to the police is the gateway

The wheels of justice start with the police and the approach varies from state to state. NSW Police, for example, is currently reviewing its sexual violence framework to ensure it meets modern community expectations. It’s designed to promote access to justice.

Head of the child abuse and sex crimes squad, detective superintendent Stacey Maloney, is encouraging more victim-survivors to speak out.

Brittany Higgins following her speech at the Canberra Womens March 4 Justice on 15 March, 2021. Photograph: Jamila Toderas/Getty Images

“We must acknowledge the courage it takes victims of sexual violence to come forward and tell their stories,” she says. “[We] are not only committed to seeking out justice for victims, but also ensuring they are appropriately supported and have access to services to address the inevitable trauma.”

It’s a delicate space to navigate and it’s clear that police haven’t yet found answers. The NSW police commissioner, Mick Fuller, sparked widespread backlash this week when he proposed a sex consent app similar to the check-in system used for Covid contact tracing. Defending the idea at a media conference, he said it was designed to “keep matters out of the justice system” and not be used as evidence in sexual assault trials. However, many have questioned whether such an idea would combat sexual assault or simply make it even harder for women to be heard.

Data from the Australian Institute of Health and Welfare indicates that only one in six victim-survivors seeks help from police. When it comes to making meaningful changes, Hayley Foster, CEO of Women’s Safety NSW, says it’s important that people feel confident in the system.

“Change has to be comprehensive,” she says. “We need to place [them] in the centre and talk about what their experiences are and what needs to change, and obviously we need to speak to the people supporting them. The first thing we need to unpack is why so many women are not wanting to report. We need to raise awareness right across the media, through media and schools, and we need to make it really clear that we’re changing the narrative so that victim-survivors don’t take on shame.”

There are many reasons why victim-survivors are not reporting crimes, she says, and self-blame is chief among them. In the vast majority of cases, victim-survivors know their attackers, and the dynamics of these relationships are complex. Fear of not being believed, fear of the social repercussions, and fear of facing the perpetrator are just a few. They may feel that the disadvantages outweigh the advantages.

Sexual assault laws are deceptively complex. It falls under state law, so there are subtle differences all around Australia, but generally speaking there are three essential elements that need to be met. First, that a person touches another in a sexual way. Second, that the other person does not consent. And third, that they know the other person does not consent. Most states define the age of consent in sexual encounters as being 16, except in South Australia and Tasmania, where it occurs at 17.

In practice, however, it’s not always as clear as a simple one-two-three, especially when it comes to consent. It means free and voluntary agreement to sexual activity. But what if the parties are drunk? What if they are young? What if consent is withdrawn? What if one party freezes?

The law has done its best to answer these questions, too, following the 2017 case of R v Lazarus. In this matter, Luke Lazarus was accused of raping Saxon Mullins in the alleyway behind his father’s Sydney nightclub. The incident was quick but complicated. Lazarus told Mullins what he wanted and she froze. She did not give verbal consent, but she did comply with his requests, which he saw as a green light. He was sentenced to jail, but later acquitted, because he believed she was actively participating.

The New South Wales court of criminal appeal held that trial judges should add another element to this mix: what steps did the alleged attacker take to ascertain that consent was given? It’s a question that has been widely supported, because it makes perpetrators explain themselves to a jury of their peers.

This case sparked a review of consent laws, which resulted in a 250-page report that is currently before state parliament. However, it didn’t recommend a “yes means yes/no means no” definition. Nor did it enshrine the idea that consent should be “enthusiastic”, which some argue was a missed opportunity.

Andrew Dyer, a lecturer at the University of Sydney Law School and director at the Sydney Institute of Criminology, is one of many people who made submissions to the Law Reform Commission.

Saxon Mullins on Four Corners on 7 May 2018.
Saxon Mullins on Four Corners on 7 May 2018. Photograph: ABC TV

“My view when it comes to sexual assault law reform is that yes, there are certain things that can be reformed, but the biggest issue is not necessarily a problem with the law,” he says.

“I see it as more of a cultural problem than a legal one. There are limits to what the law can realistically achieve. We need better education, more public awareness, and better directions to juries in these trials.”

Australia’s approach is progressive

Australia is one of the world’s most progressive jurisdictions on this topic – on par with countries such as England, Wales, New Zealand and Canada. The United States has a federal definition of rape that does include consent, but each state has its own criminal code, which means the application of justice can vary widely across the country.

It’s different again in Europe, where a recent analysis of sexual assault laws from Amnesty International found only 12 out of 31 countries had consent-based definitions of rape. This includes the UK, Ireland, Sweden, Denmark, Iceland, Germany, Belgium, Luxembourg, Malta, Greece, Croatia and Cyprus.

Sweden has taken consent laws to the next level. Its government enacted reforms in 2018 to include consent, but it differs from the approach taken in Australia because there it lists no exceptions. That removes defences like the “reasonable steps” rule we have here from the table.

Since the law came into effect, convictions for sexual assault have risen by 75%, from 190 in 2017 to 333 in 2019. Portugal, Spain and Denmark have since enacted similar models, with reforms also on the cards in Finland.

In Australia, however, Tasmania is commonly regarded as the gold standard. It codifies the “reasonable steps” principle in its criminal code, which makes it the strictest in the country. This law puts consent front and centre in sexual encounters and puts the onus on both participants to ensure the other is actively consenting.

“Consent is difficult enough to legislate, but when you throw in all these provisions and the way they’re interpreted by the court, it’s unbelievably technical,” says Dyer. “It’s understandable that people don’t know all of the distinctions. It’s important to take into account what the accused said or did to ascertain whether consent was granted and that their belief was reasonable. But I’d leave it at that.”

The more you try to legislate, and cater for all of the possible variables in these types of matters, he explains, the more complex the law becomes. Simplicity is important in ensuring justice remains accessible.

Sparing victims more trauma

That’s not to say that procedural improvements can’t be made. Many victim-survivors now dial into courtrooms remotely, so they don’t have to face their attacker during the trial. Courts are also increasingly relying on pre-recorded video evidence, usually from the victim-survivor’s initial interview with police, to spare them the trauma of having to recount the incident over and over. It’s not perfect – especially if new evidence comes to light – but these are widely regarded as positive developments.

There are also significant changes when it comes to the way law is applied. When it comes to discussing a victim-survivor’s character, for example, NSW courts take a very strict approach regarding the types of evidence that can be presented. It forbids any discussion of the complainant’s sexual history, with only a few limited exceptions. The others, including the Northern Territory and the Australian Capital Territory, may allow it where it’s of substantial relevance to the case and may promote justice.

“The days are gone when you could say to a judge or a jury that the complainant was promiscuous and therefore deserved it,” says Andrew Tiedt, principal at The Criminal Law Specialists in Sydney. “The complainant’s sexual experience is, generally speaking, inadmissible. It’s not only unlawful, but it’s not going to work in a modern court.”

Best practice in applying justice

Dr Julia Quilter, an expert on criminal law and justice at the University of Wollongong, has studied sexual assault for two decades. She says Australia has made considerable progress, including a huge amount of law reform. The problem is that courtroom practices aren’t necessarily reflecting the learnings.

“I think the biggest problem still, and this has been pretty consistent across the years, is that we are still governed by the idea that women lie about sexual assault,” she says. “We have all this evidence, but it doesn’t translate into the way trials are run. There is still the assumption that rape is an easy allegation to make and a difficult one to disprove. I don’t know how many more inquiries we need.”

This is a common myth. The National Community Attitudes towards Violence Against Women survey, conducted in 2017, indicated that 11% of people believe that women were “probably lying” about sexual assault. Research suggests as little as 2-5% of sexual assault reports are false. On top of that, it suggests that this view is culturally ingrained – the adversarial system of justice, as it currently operates, is entangled in the idea that false accusations are common.

Quilter suggests that better directions to juries, use of expert evidence to validate the experiences of victim-survivors, and the creation of specialist sexual assault courts could improve the process. It would create practical changes that put learnings from previous studies and reviews into practice.

Protecting Australia’s victim-survivors

Police data shows that 97% of sexual assault offenders are male and, importantly, the biggest group falls into the 15-19 age bracket. Sydney woman Chanel Contos recently launched a petition that tackled the issue of rape culture in schools. The stories that emerged support the view that better education and awareness will be key components in improving outcomes in the years to come.

A petition started by former Sydney schoolgirl Chanel Contos sparked calls for an overhaul of sexual consent education in schools. Photograph: Supplied

Culturally, Australia has a long way to go. Liz Snell, law reform and policy coordinator at Women’s Legal Service NSW, says recent events have shone a spotlight on the need for better practices in this area.

“While legislative reform is important, to make a difference and to ensure cultural change it must be accompanied by a comprehensive, evidence-based community education campaign about the drivers of gender-based violence,” she says.

“Specialisation is also key to cultural change – specialist sexual and domestic violence judges, prosecutors, support services, police and interpreters. Those who have experienced sexual violence must be able to access the support they need when they need it.”

Kirrily Schwarz is a lawyer and freelance writer

  • In Australia, the crisis support service Lifeline is 13 11 14. If you or someone you know is impacted by sexual assault, family or domestic violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au. In an emergency, call 000. International helplines can be found via www.befrienders.org.

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