Previous reforms have produced improvements, but victims of sexual violence are still having negative experiences in court.
The study found that trials focused on the conduct of the victim with less attention paid to the accused’s knowledge in relation to consent. Photo: Getty Images
Improving the experience of victims in sexual offence trials has been a focus of legislative reform for more than 40 years. A study undertaken by academics at University of Wollongong (UOW) and UNSW Sydney has found that while some improvements have been achieved, various aspects of how trials are conducted still produce negative experiences for victims of sexual violence.
Experience of Complainants of Adult Sexual Offences in the District Court of NSW: A Trial Transcript Analysis, is the largest study of its kind since the landmark 1996 NSW Heroines of Fortitude Report.
The study, commissioned by the NSW Department of Communities and Justice, through the NSW Bureau of Crime Statistics and Research, was undertaken by Professor Julia Quilter from the UOW School of Law and Professor Luke McNamara from the UNSW Centre for Crime, Law and Justice. They analysed the transcripts of 75 sexual offence trials finalised in the District Court of NSW between 2014 and 2020 (more than 30,000 pages of transcript).
Prof. Quilter said they reviewed the operation of legislative and privacy protections, examination-in-chief and cross-examination approaches, prosecution responses, judicial interventions, rules of evidence and jury directions.
“It was a huge undertaking, but one that was significant, and highlights important issues in the law reform landscape,” Prof. Quilter said.
“We found that there have been some improvements to complainants’ experience in sexual offence trials since procedural reforms started in the 1980s.
“Closed court arrangements, the opportunity for complainants to give evidence via CCTV from a remote location, access to a support person and use of pre-recorded evidence in retrials were all reforms working as intended.
“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.”
Negative experiences for victims
Despite these improvements, the study revealed many sexual offence trials featured practices that led to negative experiences and outcomes for complainants.
Prof. Quilter said trials displayed a continuing focus on the conduct of the victim, and whether they had consented, with less attention paid to the accused’s knowledge in relation to consent.
“We found that rape myths and stereotypes about how a genuine victim of sexual violence should behave featured prominently in the trials we examined,” Prof. Quilter said.
Other significant findings in the study include complainants being regularly cross-examined about:
- having made a delayed or incomplete complaint (84 per cent of trials in the study)
- having failed to physically resist (53 per cent of trials)
- having failed to verbally communicate non-consent (53 per cent of trials)
- having incomplete or inconsistent recall of events (76 per cent of trials)
Questioning and closing submissions that accused the complainant of lying were common and in 73 per cent of trials the complainant was accused of fabricating the sexual offence allegation for an ulterior purpose.
The researchers also found that complainants who were intoxicated at the time of the alleged offences faced additional scrutiny, including suggestions of drunken consent and unreliability.
Defence counsel were afforded wide latitude to question complainants on a range of topics, including prior flirtatious behaviour and aspects of their past said to be relevant to credibility. This included topics such as substance use, mental illness or having children in care.
Reforms need to go further
Prof. McNamara said the problem is not that judges and lawyers are ignoring or misapplying special rules for sexual offence trials, but that the reform process that began more than 40 years still has a way to go.
“Reforms to date have been important, but there are aspects of what makes sexual offence trials so traumatic for many complainants that have not yet been addressed,” he said.
“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.”
The study identifies a number of areas for attention including how the Crown case is presented (with more emphasis on communicative and affirmative consent), the rules and practices governing the relevance of evidence and the admissibility of credibility evidence (and associated cross-examination questioning), wider use of pre-trial ground rules hearings and better use of jury directions.
The Executive Director of the Bureau of Crime Statistics and Research, Jackie Fitzgerald, welcomed this important research.
“This study lays bare the confronting reality of how caustic the trial process can be for those seeking justice in response to sexual violence,” Ms Fitzgerald said.
UOW Deputy Vice-Chancellor and Vice-President (Research and Sustainable Futures) Professor David Currow congratulated Prof. Quilter and her colleagues for shining a light on the difficult experience of complainants in sexual offence trials.
“Prof. Quilter’s research offers valuable insights into this important issue. I hope it serves to guide policy-makers, legal professionals and advocacy groups to work together to make much-needed and long-lasting changes,” Prof. Currow said.