Sexual assault victims and a flawed justice system
The questions were being asked by a defence barrister. On the stand was a 21-year-old woman, a student. The trial was of Mitchell Peggie, who was later found guilty of her rape. It concluded last month.
Were you “moaning and gasping” with pleasure, the barrister asked. Wearing “sexy lingerie”? We have the photos – don’t they imply you intended to have sex? Are you lying about the rape because he “treated you like rubbish” after? How are you a real rape victim if you went for a walk with him, drank with him and followed him from the scene afterwards? Why didn’t you cry out for help? Why don’t you remember every detail perfectly – is it because you’re lying?
Publicly and forcefully accusing victims of lying about being raped, and telling them they were somehow responsible for provoking it, sounds shocking in the context of a guilty verdict. But these are standard tactics used to defend accused rapists.
Of all violent crimes, rape has the lowest rates of reporting, investigation, charges, trial and conviction. A 2011 report by the Australian Institute of Family Studies found that nine in every 10 sexual assault victims do not receive any legal redress. Even on the rare occasions where the legal system upholds the victim’s claim, it is still common for them to report that the trial process was almost more traumatic than the rape itself.
The reasons for this go beyond the obvious difficulty of publicly reliving a traumatic experience. Securing a conviction for rape requires evidence proving beyond a reasonable doubt that sex occurred, and that it was not consensual. Proving lack of consent is the most important element of rape trials, and it is the one that causes the most difficulty for victims.
The rule of natural justice says that every accused should be presumed innocent until proven guilty. The difficulty with this when it comes to rape is that there are usually only two witnesses – the victim and the defendant – so if the defendant is presumed to be innocent, the victim must therefore be presumed to be lying.
Andrew Tiedt, a practising lawyer from New South Wales, recognises the problematic nature of this dichotomy. “It’s never particularly edifying, but in the vast majority of cases, it is about discrediting the complainant. If the defendant says it didn’t happen, really what it comes down to is whether the jury believes the complainant. It’s not always about an all-out assault on the victim, but it’s up to the defence to test the evidence and show why the complainant shouldn’t be believed.”
This explains why trials are traumatic for victims, particularly women, who comprise the majority of victims. Disproving a rape victim as a credible witness usually involves more than casting doubt on her story, often it becomes about casting doubt on her character.
Many studies across Australia, Canada, Britain and the United States have shown that despite variations in laws, definitions and rules of evidence, the most common and effective means of discrediting victims in rape trials is to challenge their characters against widely held rape myths.
The study “Meanings of ‘Sex’ and ‘Consent’: The Persistence of Rape Myths in Victorian Rape Law” looked at the common rape myths used in court. Led by Dr Anastasia Powell, a senior research fellow at RMIT, it found rape myths played a significant part in defending accused rapists. Specifically, these myths play into societal ideals of female sexuality, where women are either, as Anne Summers described in her book of the same name, damned whores or God’s police. “Good” women don’t get raped, “bad” women can’t be raped.
As Powell’s paper says, “women are understood to commonly offer ‘token resistance’ to sex that they secretly desire, in order to protect their sexual reputation. It is also expected that men might need to seduce or persuade women into sex, and as such, may misinterpret women’s resistance to sex as part of the seduction script.”
Because under-reporting is such an issue in sexual violence, it is difficult to establish robust data, but most rapes are not committed by strangers in dark alleys. A 2001 report by the Australian Institute of Criminology estimated that less than 17 per cent of all rapes are committed by someone not known to the victim, and only 8 per cent of all rapes occurred on the street.
Barbara Krahé contributed a chapter – “Societal Responses to Sexual Violence Against Women: Rape Myths and the ‘Real Rape’ Stereotype” – to the book Women and Children as Victims and Offenders: Background, Prevention, Reintegration. In her discussion of the criteria that must be met to prove that “real rape” occurred, she says prevalent rape myths are the greatest obstacle faced by prosecutors.
“These include a perpetrator who is a stranger to the victim,” she writes, “an assault that happens out of the blue in a remote outdoor location, and a victim who puts up active resistance to fight off the assailant.”
Many studies have shown how prevalent these mythical criteria are in Western society. A 2014 survey conducted by Scotland’s Violence Against Women Network found that 40 per cent of respondents believed a rape victim should bear some responsibility for her own rape if she dressed “provocatively”, and 24 per cent agreed that “women often lie about being raped”. Similar results have been found in surveys in Australia, Canada, Britain and the US.
The other side of the rape myth is the stereotypical idea of a “real” rapist – that they are psychologically disturbed older men, who somehow look like monsters. Nice, white college students, successful athletes and intelligent, attractive, articulate young men –such as Brock Turner, a talented swimmer attending Stanford University before he was found guilty in March of three counts of sexual assault – don’t fit the preconceived notion of dangerous attackers lurking in the shadows, which is why defence lawyers so often concentrate on their client’s good character and community ties.
Rape shield laws, implemented across most Western democracies over the past 20 years, are supposed to protect victims from some of the damage inflicted by defence lawyers at trial. Theoretically, they are meant to prevent the victim’s previous sexual history or reputation being as evidence of their character or truthfulness. In practice, they’ve had very limited success.
A study published in the British Journal of Criminology in February this year compared defence tactics in rape trials from the 1950s with similar cases in the late 1990s in Australia and New Zealand. Despite many attempts at law reform in the intervening 40 years, the study found “there was little difference in the breakdown of strategies and tactics across time periods”.
These findings are supported by Anastasia Powell’s study of rape trials in Victoria after significant law reform. While there were small improvements in jury instructions on consent, she says that “discourses of victim blaming, sexualised ideals of femininity and stereotypical perceptions of what constitutes real rape, and a real rape victim, remain a persistent feature of Victorian rape trials, even after the recent reforms. It should also be mentioned that the Victorian reforms have not, thus far, delivered a substantial reduction in rape case attrition or conviction rates.”
The real difficulty here is the fact that, as Harvard’s Judith Herman observed, the “needs of victims are often diametrically opposed to the requirements of legal proceedings”. Natural justice requires a presumption of innocence and a robust testing of evidence. Victims, as Herman says, need to re-establish power and control over their lives, tell their stories, be believed, and have the ability to reduce the trauma to which they’re exposed. It is not possible to encompass both these needs in the criminal justice system.
So what is the alternative?
It’s easy to sympathise with rape victims who refuse to engage with criminal proceedings, but that choice leaves rapists free to continue their assaults.
The rape for which Mitchell Peggie was convicted last month occurred less than a week after he had been acquitted of sexually assaulting a 17-year-old girl under remarkably similar circumstances. The courage and strength shown by the victim, who was able to secure a conviction, ensures Peggie will not be a danger to anyone else for up to seven years, but it is grossly unfair to place the burden of preventing further assaults upon already traumatised victims.
One possibility is the restorative justice model, which concentrates more on the need for healing and reconciliation than punishment. It can, however, be a fraught issue. The possibility for further victimisation or trauma is high, and there’s little evidence that it acts as a preventive either, for individual perpetrators or for the wider community.
Given the evidence that rape myths and their acceptance in society is the main source of trauma for victims and defence for perpetrators, perhaps the only solution is a long-term one. The slow, painfully difficult public education on consent, female sexuality and male responsibility, and debunking the rape myths that do so much harm to victims, is perhaps the best method of not only reducing trauma at trial, but reducing the prevalence of rape.
This article was first published in the print edition of The Saturday Paper on Sep 17, 2016 as "Shame, and blame". Subscribe here.