Myths and stereotypes alive and well in NSW sexual assault trials

Sexual assault trials in NSW remain traumatic experiences for many victims, with some judges still allowing barristers to ask the same hurtful stereotypical questions, their behaviours hardly touched by years of reform and societal change.

That is one of the disturbing implications of a Bureau of Crime and Statistics report into the experience of complainants in the NSW District Court, showing they often battle myths and stereotypes about how they should have acted if they were victims of a “real rape”.

Prepared by University of Wollongong and University of NSW researchers who looked at transcripts from 75 trials over a five-year period, they found NSW courts remain places where rape is regularly portrayed as being perpetrated by a stranger, committed in a public places and results in injuries or involves a weapon. In fact, the report found that in overwhelming numbers men assault acquaintances or partners rather than strangers, assaults almost always happen at home rather than in public and complainants contact police within hours rather than years.

Yet, “reality” in court is that 84 per cent of women under cross-examination were asked why they delayed making a complaint, 53 per cent why they failed to resist attack, 55 per cent why they failed to say no and 73 per cent were accused of lying for ulterior purposes. “This study lays bare the confronting reality of how caustic the trial process can be for those seeking justice,” BOCSAR executive director Jackie Fitzgerald said.

The report found NSW’s courtrooms remain “disconnected” from the state’s decades-long attempt to reform justice for sexual violence survivors. When the NSW Crimes (Sexual Assault) Amendment Act was passed in 1981 it was widely hailed as a model of progressive legislation. But many felt a male dominated legal profession and judiciary still failed to treat women equally under the law. Their fears were confirmed in 1993 when a judge gave a five-year $5000 good behaviour bond to 75-year-old Ronald Trafford Allpass, who was found guilty of molesting a nine-year-old schoolgirl. The NSW Court of Criminal Appeal subsequently implied at the very least Judge John O’Reilly should have imposed periodic detention but did not overturn his judgment.

The BOCSAR report assessed if changes in NSW laws over the years since had really flowed through to trials and the experience of complainants. It found many reforms were working, including closed court arrangements, access to a support person and pre-recorded evidence. But the report’s author, University of Wollongong professor Julia Quilter, said trial aspects known to negatively impact complainants, continued “largely untouched” by reforms.“Rape myths continue to influence the conduct of trials and complainants are subjected to intense scrutiny,” she said. “This report shows that targeted reforms for sexual offence trials are working as intended but further reform is required.”

Thanks in part to the #MeToo movement, the true scale of what women and girls face in our society has belatedly emerged. That said, sexual assault and harassment accusations inside the parliament of Australia have turned equality before the law into a circus. What woman would not think twice about reporting an assault in any jurisdiction when the nation’s political, legal and media institutions often threw convention and due process out the window during the Brittany Higgins-Bruce Lehrmann legal fiasco? (The charge against Lehrmann, who maintains his innocence, was dropped after a mistrial.)

With only one in three cases resulting in guilty verdicts, the BOCSAR report may help explain why so few sexual assault victims are prepared to have their day in court. The report’s much-needed recommendations include changes to how Crown cases are presented and the admission of evidence challenging a complainant’s credibility, pre-trial hearings to sort ground rules and better use of jury directions. Such changes are long overdue.

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