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While the NSW government has announced a review of sexual consent laws, many believe the system that deals with sexual offences and their prosecution is in need of a complete overhaul. By Nina Funnell.

Sexual consent laws review not enough

Karen Willis, executive officer of Rape and Domestic Violence Services Australia.
Credit: SUPPLIED

Last year, Emily Cole served as a juror in the trial of a man accused of more than two dozen counts of sexual assault. According to the prosecution, the man was a serial sex offender, responsible for a crime spree that spanned decades. He was accused of creeping into the bedrooms of young girls at night. Of fostering vulnerable children, only to groom and assault them. Of taking young relatives driving, only to rape them time and again. After hearing six weeks of harrowing evidence, the trial resulted in a hung jury and the man walked free.

“I don’t think that the general public is educated well enough about sexual assault to make decisions on these sorts of cases,” she says. Cole was shocked by many of the things she heard in the jury room, the myths about what victims of sexual assault do and don’t do. “We are fighting a battle that cannot be won … People like that are never going to understand sexual assault and it’s impossible to convict a man with a jury that holds that mindset,” she says.

As New South Wales undergoes a review of its consent laws, Cole is one of many who believe the state should be looking instead to other reforms, such as abolishing juries in rape trials. The consent review – announced by NSW Attorney-General Mark Speakman in the wake of a Four Corners episode detailing the experience of Saxon Mullins, who says she was raped by Luke Lazarus in 2013 – has raised concern from peak bodies for focusing solely on consent law, rather than addressing the myriad issues sexual assault victims encounter when navigating the criminal justice system. Lazarus was acquitted of any crime.

Karen Willis, executive officer of Rape and Domestic Violence Services Australia (RDVSA), says the review was a “knee-jerk” reaction to media coverage. “We are concerned with the narrow purview,” she says. “Consent laws, while important, are only one piece of the puzzle.”

In a 44-page submission to the consent review provided to The Saturday Paper, RDVSA has recommended several sweeping reforms, including the elimination of juries in sexual assault trials in favour of an expert judge-only model and the introduction of specialist sexual assault courts in NSW. Additionally, RDVSA is calling for stronger laws that can better capture sexual assault in the context of domestic violence, such as where someone may submit to intercourse due to an ongoing climate of fear in the relationship.

RDVSA’s submission has received broad backing from the sexual assault and domestic violence sector and has been formally endorsed by Community Legal Centres NSW, Women’s Domestic Violence Court Advocacy Service NSW, Youth Action, End Rape On Campus Australia, Domestic Violence NSW, and People with Disability Australia.

“Rather than tinkering at the edges of an adversarial system, we need holistic reform,” says Professor Catharine Lumby, a feminist writer and researcher based at Macquarie University. “The statistics speak for themselves. Our system is completely broken, and we need to rethink it from top to bottom … [when] it comes to the area of sexual assault, it is very clear that our justice system fails us again and again.”

The statistics paint a stark picture. Data obtained by The Saturday Paper show more than half of all sexual offenders found guilty in NSW are being released without serving any prison sentence. Most are sent home with a suspended sentence, a community service order, a fine, or some other lesser punishment.

In the year to March 2017, 12,476 sexual offences – including both sexual and indecent assault – were officially reported to NSW police. That year, police initiated action against 2210 offenders in sexual offence matters. In court, convictions were recorded in 1186 sexual offence cases. However, less than half of those convictions – 565 – resulted in a penalty of imprisonment. Even in cases of aggravated sexual assault – a category that includes gang rape, rape of a child, rape of a severely disabled person, or rape involving weapons – just 51 per cent of offenders who were found guilty received a punishment involving prison time. Individuals found guilty of aggravated robbery are more likely to receive a punishment involving incarceration in NSW.

And these numbers fail to capture the fact that only one in 10 women who have been sexually assaulted report their experience to police.

Cole says the reality of getting a conviction for sexual assault in NSW highlights the problem of jury trials. “I don’t think we understand the psychology of victims and how their responses vary, and all the complexities involved in how victims behave [both during and following assault],” she says. “I think there is a real mentality in a jury room – and society in general – that women are the ones who need to remove themselves from harm. The focus isn’t on the perpetrator’s behaviour, it’s on the victim’s choices.”

Drawing on international research, RDVSA’s submission makes similar claims – that juries often lack the knowledge of trauma required to make sound judgements in sexual assault matters, and that jurors can be adversely affected by being exposed to highly traumatic content.

Jurors often bring problematic beliefs and assumptions about sexual assault to rape trials, RDVSA notes, and may only recognise rape if it conforms to the stranger-danger template. Others expect to see evidence of physical injuries following sexual assault, despite these not being the norm, and may not understand the “freeze response” as a legitimate and common reaction to fear. The complex reasons why a victim may delay reporting to police, such as trauma, shock, self-blame, shame and denial, are also not widely understood. Misapplications of the law are also difficult to detect because of the lack of transparency around jury rooms.

“There is this magical curtain that no one is allowed to glimpse behind, as far as the jury is concerned,” says Cole. “The general public should be able to know what happened in our judicial system. We should have full transparency.”

In 2017, New Zealand launched a pilot project of two specialised sexual assault courts in Auckland and Whangarei. According to the chief district court judge, Jan-Marie Doogue, they are already having an impact – halving the processing time of sexual assault cases in pilot courts from 18-24 months. Anecdotally, Judge Doogue added in an interview with Radio NZ, there has also been more respect shown to victims, who are often the target of defence lawyers in sexual assault trials.

“The problem is that when juries are present, defence lawyers are more likely to play to myths and beliefs and undermine or humiliate complainants to make them look messy and unreliable,” says Karen Willis. “In these cases, the defence will often win on the humiliation of the complainant rather than the facts of law.”

However, Willis adds that eliminating juries isn’t a fix-all. Specialist judges would need to be subjected to ongoing eligibility and training requirements in a judge-only model. “Generalist judges are no less susceptible to inaccurate social world knowledge about sexual violence than are jurors,” she says. “Generalist judges commonly replicate the same outdated attitudes and assumptions expressed through juror decision-making.”

NSW Labor has already endorsed a push to introduce expert-led specialist sexual assault courts but hasn’t gone so far as backing jury-free courts. The shadow minister for the prevention of domestic violence and sexual assault, Jenny Aitchison, says a specialist system would remove these cases from the overloaded local and district court system.

In NSW, sexual assault cases often take upwards of two years to proceed to trial. Willis says these delays can worsen the already poor prospects of conviction by weakening the credibility of the complainant’s testimony, or by causing them to withdraw their complaint due to protracted distress.

A sexual assault survivor, former judge’s associate and author of Eggshell Skull, Bri Lee agrees that long delays worsen the psychological impact on victims and can be counterproductive to their recovery. “There is a legal maxim that says that justice delayed is justice denied. The current wait times are absolutely unacceptable. Two years is normal, but it’s easy to take three or more years,” she says. “From personal experience, it forces you to constantly remember and relive the worst thing that ever happened to you.

“Every time your case is mentioned, every time you get a call, you get smacked in the side of the head. It’s cruel. It gives you this feeling you can’t escape.”

For Emily Cole’s part, she says judge-only trials could also help minimise the trauma experienced by jurors during sexual assault cases. “The transition coming out [of serving on a jury in a rape trial] stays with you forever. I’m one of thousands of jurors in the system and if I’m going through this [trauma], I’m sure others are, too,” she says.

Submissions have now closed for the NSW consent law review. The state’s Law Reform Commission has been instructed to consult best practice both in other states and countries before delivering its findings. The Saturday Paper contacted the office of Pru Goward, minister for the prevention of domestic violence and sexual assault, for comment but did not receive a reply.

This article was first published in the print edition of The Saturday Paper on Jul 14, 2018 as "Beyond consent". Subscribe here.

Nina Funnell
is a Walkley award-winning journalist and author. She is a director of End Rape on Campus Australia and a public advocate for survivors of sexual assault.