In the decade to 2018, 52,396 sexual assaults were reported to the New South Wales Police Force. Charges were laid in 12,894 cases, and 7629 cases proceeded to court. Just 7 per cent of initial reports – 3827 cases – ultimately saw a guilty verdict. Given many incidents are never reported to police in the first place, this means that for every 100 sexual offences committed in this country, barely a handful of perpetrators will ever be sanctioned for their crime.
Why is our justice system failing sexual assault complainants? That is the question in Witness, the latest book from Walkley award-winning journalist Louise Milligan. Following her groundbreaking reporting on child sex abuse in the Catholic Church, for the ABC’s Four Corners and her book Cardinal: The Rise and Fall of George Pell, Milligan has switched focus. While heart-rending individual stories remain central to Witness, here the author litigates a broader structural case against the justice system.
Milligan’s critiques are numerous and persuasive: sexist gender stereotypes that linger in the system; law reform that has not worked; an abject lack of support for complainants who cannot be legally represented. Perhaps her most compelling argument concerns the way complainants are treated during trials by barristers defending the accused. Countless times in Witness a complainant tells Milligan that being cross-examined was as traumatising as being sexually assaulted in the first place. One describes it as “the second rape”. A Pell complainant exclaims: “I’m not the villain.”
But Witness is not about Pell. Milligan interviews dozens of complainants, barristers, academics, politicians, campaigners and law reformers. The result is an impressive, gut-wrenching interrogation of the justice system’s shortcomings. One psychologist tells Milligan that most of her patients, with the benefit of hindsight, say they would not have gone through the process to begin with. The psychologist adds: “Now that is a shocking indictment on our legal system.”
Many of the defence counsel in Witness say they are just doing their job, upholding the fundamental principle of “innocent until proven guilty”. The spectre of false complaints, which empirical evidence suggests are exceedingly rare, nevertheless looms large in their minds.
English jurist William Blackstone once mused: “It is better that 10 guilty persons escape than that one innocent suffer.” This maxim shaped Australian criminal law, and Milligan reminds us that it exacts an enormous human toll. “Perhaps it can’t ever be perfect,” she writes of our criminal justice system, “but it seems to me that it can be better.”
If it does get better, it will be thanks to the spotlight shone by Milligan and other journalists, and the tireless work of some of those she interviews in this book – Australians campaigning every day for justice.
Hachette, 384pp, $34.99
This article was first published in the print edition of The Saturday Paper on Nov 14, 2020 as "Louise Milligan, Witness".
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