Prosecutors and defence lawyers regularly rely on stereotypes about how sexual violence victim-survivors should behave and “rape myths” during sexual offence trials in New South Wales, a study has found.
The study, which undertook the largest analysis of sexual offence trial transcripts in the state in 27 years, found many of the procedural reforms that started in the 1980s to improve the experience of sexual violence victim-survivors in the criminal justice system were working.
But Prof Julia Quilter, a University of Wollongong law expert and co-author of the report alongside Prof Luke McNamara at UNSW, said the problem was that successive reforms had not tackled what “complainants often find so distressing in these matters”.
“That includes the expectation for people to conform to [the idea of] a ‘true’ victim, that they will immediately make a complaint, that they will do their utmost to tell their story no matter the audience and in exactly the same fashion on each occasion,” Quilter said.
The study, commissioned by the NSW Department of Communities and Justice through the NSW Bureau of Crime Statistics and Research, analysed 75 sexual offence trial transcripts that were finalised in the District Court of NSW between 2014 and 2020.
The analysis showed many trials still focus on the conduct of the victim-survivor, particularly whether or not the victim-survivor had consented, rather than emphasising the accused’s knowledge of consent.
It found in almost three-quarters of the trials reviewed, complainants were accused of lying and fabricating the event for an ulterior motive.
More than half of the complainants were cross-examined for having failed to verbally communicate non-consent, or physically resist, while more than three-quarters were cross-examined for having an incomplete or inconsistent recall of events.
The report found complainants who were intoxicated at the time of the alleged offence were suggested to be unreliable or having given “drunken consent”.
Meanwhile the defence in some trials were allowed to ask questions deemed relevant to the complainant’s credibility, including asking about prior flirtatious behaviour and other aspects of their past, such as if they had children in their care or whether they had experienced mental ill-health and substance abuse.
Quilter said there had been many reforms that were working as intended, including complainants having the opportunity to give evidence remotely, use of pre-recorded evidence in retrials, access to a support person and closed court arrangements during trials.
“We also found that most of the time judges and lawyers adopted respectful modes of communication towards victims, and were sensitive to the need for breaks when the complainant was distressed or tired, which was positive to see,” Quilter said.
But she said the report showed there was still much work to be done to improve the experience of sexual violence victim-survivors in the criminal justice system.
“There is scope to do more to improve the experience for complainants, so that stereotypes and narratives that are out of step with contemporary values no longer feature in sexual offence trials,” Quilter said.
The authors called for prosecutors and defence to modify their approach, including reducing the reliance on “rape myths” and focusing on consent as a voluntary agreement.
It also recommended the admissibility of evidence about the complainant’s character and actions to be more restrictive, and for ground rule hearings to be introduced for all sexual offence trials.
• In Australia, the crisis support service Lifeline is 13 11 14. If you or someone you know is affected 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
