By Perry Duffin
Sexual assault trials across NSW are permeated by outdated myths and stereotypes about how “genuine victims” should act, dress, and fight off their attackers, exposing complainants to caustic and distressing court hearings, research has found.
The report found NSW’s courtrooms are “disconnected” from the state’s four-decade attempt to reform justice for sexual violence survivors.
NSW sexual assault trials are dogged by persistent myths.Credit: Sandy Scheltema
The Bureau of Crime Statistics and Research will on Thursday release a peer-reviewed report into the experience of complainants in the NSW District Court completed by the University of Wollongong and University of NSW.
“This study lays bare the confronting reality of how caustic the trial process can be for those seeking justice in response to sexual violence,” BOCSAR executive director Jackie Fitzgerald said.
Transcripts from 75 trials, between 2014 and 2019, show complainants often battle myths and stereotypes about how they should have acted if they were victims of a “real rape”.
“Many of the myths and stereotypes that research suggests are still operative in trials relate to how closely the rape approximates ... a ‘real rape’, where the act is perpetrated by a stranger; is committed in a public place; results in injuries or involves a weapon,” the study says.
“This is in spite of the fact that most rapes do not occur under these circumstances.”
In overwhelming numbers, the report found, 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.
Another myth, the report notes, is that a “true victim” would try to physically fight off their attacker. Consent laws do not require a person to physically fight off unwanted sexual contact.
In one trial a woman explained she was trying to memorise her alleged attacker’s licence plate but the Crown prosecutor focused on whether she had resisted the alleged attacker, the report found.
Prosecutors routinely challenged the myths, the study found, for example by asking complainants to explain why they did not fight. But such questions, the report says, do not challenge the basis of the myths and could reinforce them.
Defence lawyers, acting for the accused men in the trials, were generally courteous but also routinely accused complainants of lying or failing to act like genuine victims, the report found.
“In some cases, defence counsel were sarcastic, combative, belittling and judgmental towards the complainant, and asked questions that were repetitive,” the report says.
Cross-examination, where defence lawyers question complainants, is widely known as the most traumatic and combative part of a trial, particularly for sexual assault complainants.
The report found some barristers opened their questioning with deliberately confronting questions to “rattle” complainants – others used “ambush” style tactics.
“It is likely that the unpredictability of what complainants may encounter continues to be a significant contributor to complainant anxiety and distress when confronting the ordeal of giving evidence in court,” the report’s authors said.
“[It] never occurred to you before ringing Lifeline that maybe you should be ringing the police, that hadn’t occurred to you before then, had it?” a barrister asked a woman in one trial.
The study found “flirtatious” behaviour on pub CCTV, substance addiction, mental illness, criminal conviction and having children in care all frequently came up in cross-examination.
In one case, the report found, a woman was cross-examined on wearing a “négligée without underwear”, which she denied. In another, a woman was questioned because her dress would expose her left thigh when she crossed her legs.
Trials have changed through waves of reforms beginning in 1980: video links, recorded evidence and support people have been introduced in NSW to lessen the trauma.
The report was tasked with assessing if changes in NSW laws had flowed through to trials and the experience of complainants. Many were working.
“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,” report author professor Julia Quilter from Wollongong University said.
Author of the report, University of Wollongong professor Julia Quilter.
But other trial features, which are known to negatively impact complainants, continue “largely untouched” by the reforms, the report found.
In one “extreme case” a judge told the jury the fact a complainant’s evidence was pre-recorded could be considered a weakness in the prosecution case.
The researchers, Quilter and UNSW Professor Luke McNamara, concluded the reforms were working, but had only made “modest” incursions into what made trials so traumatic.
“Rape myths continue to influence the conduct of trials and complainants are subjected to intense scrutiny,” Quilter told the Herald.
“This report shows that targeted reforms for sexual offence trials are working as intended but further reform is required.”
The report recommended changes to how Crown cases are presented, with more emphasis on communicative and affirmative consent, the rules and practices around what evidence is admitted challenging a complainant’s credibility, pre-trial hearings to sort ground rules, and better use of jury directions.
Statistics show only an estimated 16 per cent of Australians who experienced sexual violence in 2021-22 contacted police within 12 months, and more than one-third of recent rape trials ended with a guilty verdict.
Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800RESPECT (1800 737 732).
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