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The trials of sex assault victims

News

Cite as: (2003) 77(4) LIJ, p.18

The Victorian Law Reform Commission is set to release its report into the responsiveness of the criminal justice system to the needs of sexual assault victims. This represents the latest attempt to make the legal system less painful for victims.

“I know if it were my daughter, even though I’d want the perpetrator dealt with, I wouldn’t put her through [the legal system]. If I’d been raped, I don’t think I’d put myself through it.”

This damning assessment appeared in a 1997 Department of Justice report titled Rape Law Reform Evaluation Project: The Crimes (Rape) Act 1991, which examined the impact of major reforms to sex offence laws introduced in 1991. But they were not uttered by a counsellor or victims’ group.

They were said by a female magistrate.

This view is strong evidence that the criminal justice system is still struggling to make the legal experience of most sexual assault victims anything less than painful and traumatic.

Community concern about this problem has led to a Victorian Law Reform Commission (VLRC) inquiry, which was due to release its interim report in late March or early April to state Attorney-General Rob Hulls.

The VLRC inquiry is reviewing provisions relating to sexual offences to determine whether legislative, procedural or administrative changes are needed to ensure the criminal justice system is responsive to the needs of victims.

VLRC chair Professor Marcia Neave would not reveal to the LIJ specific recommendations before the report was tabled. She said, however, that the recommendations would cover support processes for complainants, changes to police procedures, modifications to the evidentiary rules, and “a few tweaks around the edges of the substantive offences”.

So why is an inquiry on Victoria’s sex offence laws and procedures necessary? Because women – who make up 83 per cent of sex assault victims – remain fearful of the legal system.

Joanna Fletcher, senior lawyer at the Women’s Legal Service (WLS), said many women were “baffled” by the legal system.

“So many women don’t understand such things as what do they do when they go to court, do they have to bow to the judge, what do they call the judge, and all those things that make them frightened of the process.”

This fear of the legal system often turns into terror when a court case gets underway and women have to face procedures such as cross-examination, where they are forced to publicly relive the violence to which they were subjected.

The 1997 Department of Justice report quoted a female defence barrister’s view of cross-examination. The barrister said: “The complainant must find it extraordinary. ‘This man is asking me was it one finger or two, was it to the first joint or to the second joint. I’m down a laneway at three o’clock in the morning having my clothes ripped off by some lunatic with his hand thrust down my pants and I’m supposed to tell him whether it was the first or second joint.’ The complainant must wonder where they are, what planet they’re on.”

These experiences, in turn, have led to a crisis in confidence in the legal system by groups who advocate and provide support to victims.

Centres Against Sexual Assault (CASA) house manager Marg D’Arcy said their counsellors tried to be as honest as possible when explaining the legal system to victims. “It’s a very difficult balance. There would often be a lot of temptation to say, ‘For heaven’s sake, don’t do it because it’s so hard’.”

The latest VLRC inquiry is hoping to pinpoint how this situation has remained entrenched despite more than 25 years of reforms to sex offence laws and procedures in Victoria. Major reforms over that time have included the widening of the definition of the offence of rape and sexual penetration, abolishing the need for corroborative evidence and allowing victims to give evidence either at a remote facility, via videotape or behind a screen.

According to experienced defence lawyer Rob Stary, many of the reforms that were supposed to help victims have backfired. For example, more sex assault victims are having to give evidence at committals and trials because of an apparent downturn in defendants pleading guilty at an early stage.

However, accurate statistics on conviction rates are practically non-existent. The last reliable set of statistics appeared in the 1997 Department of Justice report, which found only 34.8 per cent of defendants accused of a sex offence were either found or pleaded guilty to a rape offence.

Mr Stary said, in his experience, reforms such as the increase of maximum jail terms in rape cases and the introduction of serious sexual offender provisions – which allow for the accumulation of sentences – have led to a large drop in pleas. This has forced more victims into the witness box.

“So in the ordinary course of events where we would advise a client to... enter a plea of guilty and cooperate with authorities at the earliest opportunity, that doesn’t apply to sex assault cases.

“We say to people, ‘Simply exercise your rights, make no comment, don’t consent to any line-up or to any other procedures the police might have because at one time or another the complainant might get shaky’.

“If the police have to prove their case there is nothing more traumatic than a witness having to relive the event and some witnesses would be reluctant to do that.”

While these comments have the potential to confirm the victims’ worst views of lawyers, they are also the views of someone who is well aware that there are problems with the system.

Mr Stary admitted that, as a father of five girls, he did not like undertaking sex offence cases. The clients, he said, were often unrepentant and inclined to deflect criticism. They were reluctant to do sex offender programs and were the biggest source of complaints against their own lawyers. But he reconciled this by saying that it was the role of the lawyer to represent their client without fear or favour.

“You need to maximise the outcomes for them. That doesn’t mean to say that if a person says they are guilty of a wrongdoing that you plead not guilty.

“What we say to people is that we don’t want an account of what happened yet. That’s up to the prosecutor to prove their case. Don’t tell us what happened until we get that material and then we’ll examine it,” Mr Stary said. “So we have a very clinical approach to it.”

Head of the Office of Public Prosecutions (OPP) Sexual Offences Section Gary Ching agreed that reforms had led his office to prosecute cases that just over a decade ago “would never have seen the light of day in a courtroom”.

It also means that more cases come down to the word of the victim against the word of the accused. “Many of our cases can end up being a one-on-one situation where you may not have evidence supporting either the complainant or the accused,” he said. “In some cases the credibility of a complainant may become an important issue in the case. That may put pressure on a complainant when giving evidence.”

But victim advocates believe it is extremely hard for witnesses to be at their best because the legal system is not sensitive to the needs of the victim.

First, there is the intimidating nature of the courtroom. The judge sits up high on the Bench. Robed counsel sit at the Bar table with their backs to the victim. At the back of the room sits the defendant. To the side is the jury of their peers. And in the middle of it all sits the victim.

According to an August 2002 CASA report titled Sexual Assault and the Criminal Justice System, the design of the courtroom has a negative impact on the victim. One CASA counsellor said in the report: “It reinforces the lack of protection that [victims] are faced with, especially because they have to testify facing the offender.”

There are options available to victims when giving evidence. They may choose to give evidence in the witness box, have a screen put up between themselves in the witness box and the defendant, or by video or via closed-circuit television from a remote facility. However, the alternative to giving evidence in the witness box requires an application by the prosecutor.

A Director of Public Prosecutions study conducted for the 1997 Department of Justice report found that in the 126 cases it sampled, there were 41 applications made for alternative arrangements for giving evidence at committals. All but one were granted. The report found that 47.5 per cent of the applications asked for the use of closed-circuit television.

Magistrate Lisa Hannan, who is supervising magistrate of the Court’s criminal jurisdiction, said if an application for alternative arrangements was not made she would inquire why.

“I would ask the prosecutor whether the use of the remote witness facility had been considered because I would want to make sure that the alleged victim was aware that an application can be made.”

However, Mr Stary said he had seen a drop in alternative arrangement applications in trials because of a growing realisation by defence counsel and prosecutors that removing the witness lessens the emotional impact on the jury of their evidence.

“We never object when they say they want to give evidence by video link,” he said.

Professor Neave agreed that prosecutors felt they had a better chance of getting a conviction by having the complainant appear in court to give evidence, although she was quick to point out that her inquiry had failed to find concrete evidence of this.

Once the decision is made as to how evidence will be given, the victim must go through the excruciating process of reliving the crime.

As part of the 1997 Department of Justice report, the OPP examined more than 100 sex offence cases it had recently tried. Its study found that, on average, a victim spent 68 minutes giving evidence-in-chief, compared to 42 minutes for the accused. Victims spent an average of two hours and 22 minutes under cross-examination, while the accused was quizzed for 90 minutes.

The report found that the longest time spent by a victim being cross-examined was 13 hours and 42 minutes. For the accused it was three-and-a-half hours.

Such sometimes-torturous cross-examination takes its toll on all participants.

Former County Court Judge David Jones said the heavy emotional factor at play in sex offence trials made them difficult to conduct.

“I don’t think there’d be any judge who would say that they enjoyed conducting sexual offence trials. They are pretty emotionally charged and it’s a difficult exercise for everyone, to be honest.”

Judge Jones recalled one case involving three sisters who had been sexually abused by the one man. He had to sever the presentment and then hear each case one after the other.

“I was pretty wrung out by the time I finished the three. It’s the emotional aspect, but it’s also the fact that you’ve got to be so on guard that something doesn’t go wrong.”

Professor Neave said she had sympathy with victims over the sensitive nature of the evidence they were being asked to produce in a public forum.

“I went to a judicial education seminar where the person who was running it asked us all – a group of academics and judges – to turn to the person sitting next to you and describe to them your last sexual experience.

“That’s what you are asked to do when you go into court. You’re being asked about extraordinarily intimate details.”

As well as having to relive the experience of the attack, the complainant is sometimes faced with the type of questioning defence counsel pursues for no apparent evidential gain. For example, Professor Neave recalled seeing a lengthy cross-examination of a victim on why she wore a certain type of underwear.

“That’s part of the adversarial process and I’m not sure you can stop that. However, I think you can get judges to think a little bit more about whether they should intervene to prevent questioning which humiliates and degrades witnesses and serves no useful purpose.”

Judge Jones and magistrate Lisa Hannan believed the judiciary and magistracy had become more interventionist.

Judge Jones said recently added provisions regarding cross-examination on prior sexual history (defence counsel must apply to do so) means the trial judge must be aware of attempts to harass the witness or to draw out inadmissible evidence.

Ms Hannan said it was imperative that the complainant was not bullied when giving evidence. She said that generally counsel were good at fairly questioning victims of sexual assault and therefore she has rarely had to intervene.

Mr Stary believed the criticisms of defence barristers bullying victims “have aged”.

“The old approach of just terrorising the complainants is gone. You have to be subtle in the way that you do it. If you are simply there to savage the person... that tends to rebound on you. And judges and magistrates are much more interventionist to protect the rights of the complainants. There’s been a huge cultural change in that regard.”

Professor Neave agreed defence counsel have become more subtle with their questioning. For example, to get around the question of applying to question the witness directly about her prior sexual history, defence counsel will instead ask if the witness has ever had an abortion.

Another method, according to Professor Neave, is for defence barristers to suggest to the victim that they had been sexually abused previously, thus suggesting that the victim was hysterical and regularly made abuse allegations.

Marg D’Arcy of CASA said victims needed to have all steps along the legal process explained and demystified.

At present, the responsibility in explaining the legal system falls largely on the OPP.

Mr Ching said legislative reforms in 1991 had increased the instances of pre-hearing conferences between the solicitor, the victim, a social worker from the Witness Assistance Service (WAS) and, in some cases, the prosecutor.

At these meetings the complainant is given the opportunity to discuss the nature of the proceedings and “hopefully dispel any fears or concerns they may have”.

The solicitor will also write to the complainant informing them of the Witness Assistance Scheme, which is a government-funded service designed to help witnesses through the court process, and of the availability of written material.

Mr Ching pointed out that the need to help victims was enshrined in legislation. Section 24 of the Public Prosecutions Act 1994 says the Director of the OPP must have regard to “the need to ensure that the prosecutorial system gives appropriate consideration to the concerns of the victim of crime”.

WAS manager Annie Davie said the service worked closely with the OPP in trying to make witnesses feel as comfortable and knowledgeable about the legal process as possible.

“We inform witnesses, particularly victims, of what’s happening. We liaise with the solicitors because very often they are in court so witnesses cannot get in touch with them.

“We endeavour to explain the legal system, mainly because many people’s beliefs tend to be based on what they see on television.”

However, Ms Davie admitted it was difficult for the WAS to fulfil every witness’ needs with only three social workers dealing with all witnesses of all crimes across Victoria. This means victims and witnesses of certain crimes, such as murder, manslaughter, culpable driving and sex offences, get priority. It also means that in-court support is kept at a minimum and instead left to Court Network.

This lack of resources and follow-through on cases was uncovered in a state government report released last year.

The Department of Justice report released in February 2002 titled Review of Services to Victims of Crime found that while there was a range of services available to victims of crime in Victoria, service delivery was “fragmented and poorly coordinated”.

“This overall lack of coordination has resulted in inconsistent service standards; a lack of standard referral protocols between service providers; varying approaches to the accreditation of service providers, especially in relation to counselling services; a lack of coordinated research into the most effective responses to meeting the needs of the victims; and a general lack of evaluation of the effectiveness of the current range of services and of accountability for ensuring the best outcomes for clients.”

The report’s main recommendation was for the establishment of the Victorian Victims Support Agency, which would ensure integration, coordination and quality assurance of current government services into a new service delivery framework.

In October 2002, state Women’s Affairs Minister Mary Delahunty promised the report’s recommendations would be implemented, although no timeframe has been set.

Such a reform would, in theory, offer victims more emotional support and information. But victims’ advocates believe more needs to be done to protect the interests of complainants.

CASA has asked the VLRC inquiry to consider a plan to provide an advocate to represent the victim at the Bar table similar to the children’s advocate in the Family Court.

“What at least that acknowledges is that she is the evidence,” Ms D’Arcy said.

“At the moment there is no acknowledgment. She is treated like any other witness in any other trial.

“In a sexual assault case her body and her mind is the evidence and so having some legal advocate who can support her in that process and intervene when necessary, would I think, go a long way to improving the process.”

The WLS has made a submission to the VLRC asking for complainants to receive funded legal support beginning in the investigation stage of the matter. This could be done either through Victoria Legal Aid or under the Victims of Crime Assistance Act.

Professor Neave said the inquiry was looking at calling for the need of a formalised system of education for lawyers on how to deal with complainants. She said the VLRC was already working with other bodies to provide that. “I think prosecutors need some help in terms of understanding sometimes the impact on complainants of what is done for strategic reasons. The complainants feel like it’s their case. It’s their word against his.”

Mr Ching said solicitors in the Sexual Offences Section were already mindful of the stress the system placed on victims. He said the Section was made up of solicitors who wanted to work in that area.

“I guess over the years we have built up a fair amount of expertise in our knowledge of the law, the way the system works and the way to handle victims of sexual assault.

“None of us have ever received formal training as such specifically in that area. It is really very much our experience which equips us for the job.”

There are moves afoot to formalise judicial education in regards to sex assault cases.

Magistrate Lisa Hannan is representing the Magistrates’ Court on a cross-jurisdictional project looking to format such a program. She said the Court also runs internal judicial education on a range of matters, including sex offences.

“I think the expectation that you appoint someone and don’t educate them afterwards is ridiculous.

“Things change.”

Victims of sexual assault hope that with the imminent release of the VLRC report things will change for them for the better.

Jason Silverii

“I am not a burden. I am a vital part of the process.”

The National Gallery of Victoria at Federation Square recently staged an exhibit by Australian artist Patricia Piccinini titled Sandman. Among the installations at the exhibit was a film of a young girl struggling underwater.

For Julie, sexually assaulted three times by the age of 15, the film held special meaning. It encapsulated what it has been like to be a victim of sexual assault and her attempts to get the legal profession to listen to her.

“By that I mean the girl was underwater, suspended, wide-eyed, hair streaming, ethereal, then struggling against the undertow, trying to emerge,” Julie (not her real name) said.

“Then that feeling of gasping for air, floating, seemingly going nowhere, being submerged again by the relentless waves, the rhythms of life; looking out over the water, trying to determine some sense of direction and at times showing moments of strength as she took a few purposeful strokes towards the shore.”

Julie was sexually assaulted three times – once at 10 years of age and twice within two days in a series of sexual assaults involving 12 men when she was aged 15. No one has been charged over the offences, but police are still investigating.

The brutality of the crimes led her to later develop several post-traumatic stress disorders.

Julie said that it was not until 1992 that she recalled a cohesive picture of the crimes. She then called the Centres Against Sexual Assault (CASA) for advice on how to make a police statement. CASA also advised her to apply for crimes compensation.

This led to more than a decade of what she describes as appalling conduct by more than a dozen lawyers with whom she came into contact.

Her anger with one firm led to a complaint to the Legal Profession Tribunal.

Apart from botched elementary tasks – calls not returned, deadlines missed – Julie said most of the lawyers she came into contact with failed to offer two essential attributes that sex assault clients need: an element of control of the process and empathy.

“I’m an adult and able to make my own decisions. My sense of having a lawyer was having someone who would treat me as an equal and operate as a guide or facilitator working with me as an interdependent team towards a desired outcome.

“Instead, I was straitjacketed into a victim role, which was extremely damaging because it revictimised me and consequently retraumatised me.”

One of the main problems Julie encountered was the inability of lawyers to listen with empathy.

On one occasion, during a phone conversation with a lawyer, the lawyer hung up when Julie began to cry. There were also numerous examples of being unable to get in contact with a lawyer. She was talked down to, with lawyers sitting above her on the arms of chairs or using large desks as barriers to separate themselves from her.

There was also “atrocious” misuse of language. She received adversarial like letters from her own lawyers that contained impersonal phrases such as “We have previously advised you” rather than the more human, friendlier tone “Here is the information you wanted”.

“You are giving this information to [the lawyer] to do something about it in a public forum and it’s about respecting that. I don’t want sympathy. Sympathy disempowers me. Give me empathy and recognise what my needs are.”

She said many sex assault victims suffered from post-traumatic stress disorder with symptoms involving short-term memory difficulties. Yet lawyers did not recognise or cater for this.

For example, she said, lawyers could provide written directions to their office, court diagrams and visual flow charts of the process with anticipated timelines or voice-recorded letters that clients could listen to over the phone and re-hear if necessary. It was vital that lawyers did not overload their clients with dense legal information, especially verbal information that would be hard to retain with short-term memory difficulties.

It is these small measures that can make the process less stressful and provide victims with a sense of control and empowerment.

“It sounds so simple, but for someone with a sex assault background control is a huge issue.

“It’s not [for me] to be controlling, but, particularly in light of the high level of disempowerment involved in the crimes, there is a very strong need for me to have an element of control. Put up and shut up is not helpful. Lawyers need to be aware of the signals they give out and ask themselves if as consumers they would find the way they operate acceptable.

“I am not a burden. I am a vital part of the process.”

Jason Silverii

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