- by Anna Pha
- The Guardian
- Issue #2066
A report on sexual violence court cases in NSW has found that reforms to the justice system over the past 40 years have made improvements in reducing the trauma experienced by victims of sexual violence and enhancing just outcomes. These reforms include 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. However, “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,” Professor Julia Quilter, one of the report’s authors, says.
The report is based on a study of the transcripts from 75 sexual offence trials finalised in the District Court of NSW between 2014 and 2020. It includes trial by jury or by a judge alone. 96 per cent of trials involved female complainants and 71 per cent were aged 15-29 years. In 91 per cent of trials the accused was known to the complainant in some way prior to the alleged offence.
“We found that rape myths and stereotypes about how a genuine victim of sexual violence should behave featured prominently in the trials we examined,” Quilter says. “Trials displayed a continuing strong focus on the conduct of the complainant, and whether they had consented, with less attention paid to the accused’s ‘knowledge’ in relation to consent,” the report notes. “Complainants were regularly cross-examined about having made a ‘delayed’ or ‘incomplete’ complaint (84 per cent of trials), having failed to physically resist (53 per cent) or verbally communicate non-consent (53 per cent), or having incomplete or inconsistent recall of events (76 per cent).”
Questioning of complainants and closing submissions that accuse the complainant of lying are still common, and in 73 per cent of trials the complainant was accused of fabricating the sexual offence allegation for an ulterior purpose. Complainants who were intoxicated at the time of the alleged offence faced additional scrutiny, including suggestions of “drunken consent” and unreliability based on impaired recall. Defence counsel were allowed wide latitude to question the complainant on a range of topics, including prior “flirtatious” behaviour and aspects of the complainant’s past said to be relevant to credibility (e.g. substance use, mental illness, children in care).
The NSW state government introduced consent laws in 2022 and launched a “Make No Doubt” campaign, with particular focus on younger age groups. It remains to be seen how this works out in practice.
The report may be found on the NSW Department of Communities and Justice website (www.dcj.nsw.gov.au).