November 18, 2021

Law and order

The legal system is failing survivors of sexual violence, so why is it being maintained?

By Michael Bradley

Image © Piotr Adamowicz / Alamy Stock Photo

Faced with the choice between a gruelling court process or nothing, victim-survivors are often coming away more bruised from the experience than they were beforehand

I run a commercial law firm in Sydney, a place with a corporate client base and a human heart. My own practice, primarily in media and regulatory law, led me by a circuitous route to where I am now, lending time and support to survivors of sexual assault. I’ve worked in various guises with dozens of survivors. Their experiences are always unique but depressingly familiar. I have discerned some powerful consistencies in one critical aspect: the legal system’s response to what they have suffered.

We know the legal system is failing rape survivors, and that the very people it is supposedly attempting to serve are not clamouring to come under its wing but are in fact mostly avoiding it altogether, or, if they have engaged with it, are coming away more bruised from the experience than they were before they went in. But, if we know this, then why is the system being maintained? The answer to that question lies in the answer to another question, one which as a society we have not seriously asked.

When I was sitting with Mia, a survivor, after she had explained how she had been made to feel at the end of a months-long investigative process by the NSW Police Force – in her words, “like I was wasting people’s time and making it up” – I asked her this question: “When you made the decision to go to the police and report what had happened to you, what were you seeking?”

Mia replied: “I didn’t necessarily want him to be punished. I wanted to be heard. I wanted to be believed. I wanted for him to be held to account in some way, so that it became real for him too.” She continued: “I felt I was keeping his secret. Just him being questioned would suffice. I’d be handing the shame and trauma back to him. Handing this shit back to him, so that it was no longer mine. I wanted my agency back, and I didn’t want to suffer in silence anymore.”

There is no need for anyone, and it’s certainly no right of mine, to editorialise on her words.


Mia’s reflection will not surprise anyone who has spent time on the field of sexual violence. Grace Tame, in her speech accepting her appointment as 2021 Australian of the Year, said in relation to her own experience of grooming and serial rape by a schoolteacher when she was 15 years old: “Yes, discussion of child sexual abuse is uncomfortable. But nothing is more uncomfortable than the abuse itself. So let us redirect this discomfort to where it belongs: at the feet of perpetrators of these crimes.”

Detective Superintendent Maloney (the then-head of the NSW Police sexual assault unit) put it this way: “I think most victims want to hear: ‘I’m really sorry, I shouldn’t have made you feel that way’ or ‘I shouldn’t have done that’.”

When I first started working with survivors, I was surprised by how relatively disinterested, or even uninterested, they seemed to be regarding what we tend to assume would be their primary concern: vindication of their trauma by the public conviction and punishment of their perpetrator. For most survivors, I observed that actually this was presenting as a low-order priority; in some cases it was not on their list at all. Typically, I explore with them their options, which are three (assuming they don’t wish to remain silent): a criminal complaint, civil action or going public with their story. Each pathway is precarious, laden with legal risk and personal cost. What I began to notice was that, almost universally, what survivors were most interested in exploring and understanding wasn’t punishment, it wasn’t money and it was never fame or public attention. It was something I’m not sure we’ve quite identified yet, but if there was a word for it, it would live somewhere between “agency”, “power”, “autonomy” and “choice”.

I think this thing connects profoundly to the experience of being raped, something I simply don’t and can’t understand. I recognise it rationally as the loss of something taken without permission. The key, therefore, to what survivors typically seek when they come to the front door of the legal system, is the restoration of that taken thing. Perhaps it’s best described as the restoration of self.

Blue Knot Foundation, the leading national body supporting survivors of childhood trauma, provides guidance for how to talk about trauma with survivors. The principles it articulates as the foundation for every interaction are safety, trustworthiness, choice, collaboration and empowerment. Again, there is nothing here that we don’t already know. We have the capacity, evidence and tools to understand what survivors seek and need when they are confronting the trauma of their experience, whether it is recent or happened long ago. We also know in comprehensive detail what the legal system currently offers to them by way of a response. And it is as obvious as anything has ever been that these two things do not match.

Victim-survivors are usually faced with the choice between an often-gruelling court process or nothing. The status quo doesn’t offer victims what they generally most want to hear: an apology. Detective Superintendent Maloney knows it well:

No one is ever really going to say: “I’m sorry about that, I did it.” They’re always going to fight it. People admitting guilt to something is difficult. There is a huge stigma attaching to someone who’s been convicted of a sexual violence offence. [The] community is quite happy to have more victims than offenders.

It’s true, and we all know it: every woman knows a rape victim, and almost no man knows a rapist. This is insanity.

 

This is an edited extract from System Failure: The Silencing of Rape Survivors by Michael Bradley, published as part of Monash University Publishing’s “In the National Interest” series.

Michael Bradley

Michael Bradley is a lawyer, writer and managing partner at Sydney firm Marque Lawyers.

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