March 3, 2021

Law and order

Strong convictions

By Russell Marks
Strong convictions
Are the criminal courts always the best places for victims to seek justice?

What does justice look like? Few victims, or survivors, of sexual assault have ever seen it. Former Victorian attorney-general Rob Hulls’ Centre for Innovative Justice estimates that as few as one in every 100 women who are assaulted ever experience the kind of justice associated with the conviction of their perpetrator in a criminal court. The implications of that statistic are astounding. Even allowing for multiple victims of a single perpetrator, there are a hell of a lot of rapists who’ve never been held to account.

Where to, then, for the “99 per cent”? For Chanel Contos, a former student at Sydney’s elite Kambala School, it was an online petition, begun when she realised that she and a friend had both been assaulted by the same boy, a student at an all-boys’ school. Initially she asked her Instagram followers whether they’d also been assaulted by boys’ school students; the extraordinary response led her to create the petition asking for education about consent to be provided to students much earlier than it currently is. The petition has so far attracted more than 3000 testimonials, and belated promises from principals and executives of same-sex schools – a bloated and highly protected cabal that returns no obvious benefits to its public subsidisers – to change their cultures. For Brittany Higgins, the former ministerial press secretary, it was a high-profile interview with The Project’s Lisa Wilkinson, which has prompted at least three more women to allege they were assaulted by the same former staffer. And for another woman, who said she was raped in 1988 by a teenager who is now a cabinet minister in the federal government, there was no justice at all.

As the news media is consumed by questions about who knew what, and when, and just how many perpetrators are in Parliament House, it’s worth asking: why is it that sexual assault rarely results in conviction? The law is clear: sex or sexual contact without consent is assault, and anyone who does so commits a crime for which the penalty can be life imprisonment. Its maximum penalty puts rape on the same level as murder and manslaughter. On paper, at least, the system takes the crime very seriously.

It’s getting to conviction that’s the problem. The grief, shame and trauma often experienced by victims of all crimes tend to be intensified among survivors of sexual crimes, and are further exacerbated by medical and cross-examination. And then there’s the law, which begins with the presumption of innocence, sets a very high bar to displace it, saddles prosecutors with the burden of proof and relegates the victim to the status of mere witness. The focus is on the perpetrator, who gets a lawyer and a right to silence, except when it’s on the victim (and her honesty, her integrity, her sexuality). And if the whole thing comes down to he-said, she-said a year or two after an imperfectly recalled traumatic episode, which it often does, is it any wonder that convictions are rare?

Law is reformable, and reformers are presently tinkering with its consent provisions. In Queensland, whose laws have been in recent focus following an investigation and report by the state’s Law Reform Commission, consent must be freely and voluntarily given by each person to sexual acts performed by another person. That’s consistent with laws in other Australian states and territories. And like everywhere else, Queensland law has long allowed defendants charged with rape to claim they had an “honest and reasonable”, albeit mistaken, belief that their victim was consenting to a sexual act. Reformers have long campaigned for changes to make this defence less available to men who are charged with rape. In a paper published last year, Bond University law professor Jonathan Crowe and writer and lawyer Bri Lee argued that the wording of Queensland’s “honest and reasonable mistake of fact” provision has resulted in juries occasionally acquitting defendants in circumstances that, in Victoria for instance, would likely have resulted in convictions. That’s because Victorian law was changed in 2016 to provide some explicit guidance as to what is to be considered “reasonable” when assessing a defendant’s belief that another person was consenting: Victorian law now suggests that a defendant should be able to show any steps he took to find out whether the other person was in fact consenting. Crowe and Lee want Queensland’s law to be even more explicit. An accused person’s mistaken belief about whether his sexual partner was consenting would not be “honest or reasonable”, in Crowe and Lee’s proposed reform, if he hadn’t taken “positive and reasonable steps” to find out.

Crowe and Lee say the law needs to be explicit about what counts as a “reasonable” belief, because many defendants, jurors and even judges continue to believe in a number of invalid myths about rape: that women sometimes bear responsibility for being raped if they flirt, dress “provocatively” or drink, for instance, or consent to a series of preliminary steps before the assault. For an analogy, think of the “gay panic” defence – a partial defence to a murder charge that reduces the crime to manslaughter on the basis that a male defendant says he was threatened by a “homosexual advance” from his victim – which has been removed in all states. But many don’t agree that the law needs changing. Existing law already covers these situations, and it’s hard to see the kind of reform advocated by Crowe and Lee making much difference to conviction rates. Despite reforms to court procedure – such as allowing vulnerable witnesses to give evidence via CCTV, allowing juries to accept uncorroborated accounts given by complainants, and restricting cross-examination of them – the criminal court remains, for most women who are raped by men they know, a forum of he-said, she-said with a high burden of proof. The Queensland Law Reform Commission essentially concurred, and made very limited recommendations that would essentially codify the present common law position. Those recommendations are presently before Queensland’s parliament in the form of a bill, which should pass early this year.

Crowe, Lee, the Women’s Legal Service Queensland and survivor advocates are appalled. Many victims’ rights campaigners are frustrated by the law’s insistent focus on the perpetrator’s state of mind, as opposed to the factual question of whether the victim was consenting or not. Why does the perpetrator’s mindset matter at all? The simplest answer to that is because it’s the perpetrator who is on trial, and who, if he’s found guilty, will face very significant consequences. Liberal democracy will only allow a court to punish an offender if it’s very certain he committed the offence.

For a long time, the men who caused rape to be criminalised in courts and statutes imagined the archetypical violent stranger in a dark alley, and an ideal, virtuous victim. Jill Meagher’s violent rape by Adrian Bayley, a complete stranger to her, while she was walking home in Brunswick in 2012 – a rape which culminated in her murder – was this kind of crime.

But most rapes are not like Bayley’s. Feminist movements have successfully forced Western societies to confront the reality that most sexual assaults occur between people who know each other. Perhaps the most dramatic influence on global thinking was produced by Robin Warshaw’s 1988 book I Never Called it Rape, which reported on what she called a “hidden epidemic” of “acquaintance rape” on American college campuses, and was based on a nationwide study for Ms. magazine, then under Anne Summers’ editorship. Warshaw’s book, and the movements it grew out of, succeeded in naming what had previously been described as “honest mistakes” or “seduction” or “miscommunications” as what they really are: sexual assaults without consent. Rape.

In part, this also helped to explain the fact that survivors are often just as traumatised after being raped by friends or colleagues or bosses or partners or family members, and often even more so, as they are after being raped by strangers. But the criminal law has always been a poor fit for victims’ experiences of crime and the trauma they suffer, because the criminal law is necessarily focused on the conduct and culpability of the defendant. And unlike stranger rape, for which there may be objective evidence (CCTV footage, DNA samples, fingerprints), acquaintance rape cases inevitably turn on whether or not there was consent and, in particular, whether the alleged perpetrator knew the victim wasn’t consenting. Rape crisis centres were established by feminist collectives in the 1970s in direct response to their recognition that survivors were poorly served by courts. The victims’ rights movement has caused criminal courts to give greater weight to a crime’s impact on its victim when sentencing an offender. But such impact is merely one of a range of factors the court takes into account – to that movement’s perennial exasperation.

Of course, that’s when a rape even results in a sentence, which remains an extremely rare event. For that reason, some thinkers since the 1970s have wondered whether the criminal court is always the most appropriate forum for rape allegations to be aired. This remains a highly contentious prospect, but for half a century now, groups of researchers, counsellors, lawyers and activists have been experimenting with various forms of “restorative justice”. The criminal law is focused on proving the offence (beyond reasonable doubt) and punishing the offender. As against this, restorative justice aims – in the words of Howard Zehr, one of its principal architects – to involve everyone with a stake in a specific crime and to “identify and address harms, needs and obligations, in order to heal and put things [as] right as possible”.

Rape victims seek justice in many ways, only one of which is the conviction and sentencing of their perpetrator. But that’s really the only kind of justice on offer in Australia. Restorative justice advocates say it isn’t enough for many survivors, as many as 99 per cent of whom never even achieve it anyway. With its focus on survivors’ needs (to recover and heal, to have their experience acknowledged – including by the perpetrator – and validated), restorative justice offers what criminal justice doesn’t, and can’t.

One way of encouraging perpetrators to acknowledge their crimes and participate in restorative justice processes that offer tangible benefits for survivors is to take lengthy prison terms off the table. Two programs – in Perth and Sydney – experimented with this approach for intrafamilial child sex offenders until about a decade ago. Those programs reported significant results: much reduced recidivism among offenders, and much greater recovery among their victims. Both programs were defunded by incoming Coalition governments committed to remaining as tough as they could be on serious crime. In common with most countries that have experimented with restorative justice, Australia no longer allows sexual or violent offences to be dealt with other than by the criminal justice system. Its approach to sexual offences is conviction – or nothing.

Whom does this status quo serve? Rape has been a primary concern for many in feminist movements at least since the publication of Susan Brownmiller’s 1975 blockbuster Against Our Will: Men, Women and Rape with its blistering line: “rape is nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear.” But feminism’s successes – which include a substantial and ongoing cultural shift in understanding consent – have not translated into accountability for perpetrators of acquaintance rape, or justice for its survivors.

A conviction-or-nothing approach means that all allegations eventually become police investigations and prosecutions – or they don’t. Inquiries into allegations by Brittany Higgins and the other women will either find enough to refer to prosecutors, or they won’t. And if there isn’t enough to potentially establish proof beyond reasonable doubt, what then? Vindication for the accused men, as there was for George Pell?

One under-explored possibility for rape survivors is that they bring civil lawsuits against their perpetrators and claim damages. Tight legislated limitation periods create barriers, but the lower standard of proof can and has worked to produce findings against men who can’t be convicted. In 2007, Geoff Clark was found on the balance of probabilities – after criminal charges were dismissed – to have led two pack rapes in 1971. He was ordered to pay compensation to his victim.

It’s difficult to imagine a less adequate performance than the one Scott Morrison has given thus far in response to parliament’s #MeToo moment. Now that NSW Police has closed its investigation into the allegations against the cabinet minister, Morrison and those advising him are apparently unable to think past conviction-or-nothing. But there’s really nothing stopping the prime minister from launching a non-police inquiry, adopting a civil standard on basic principles of restorative justice. Such an inquiry couldn’t recommend prosecution, but it may be able to conclude that the accused cabinet minister is either “probably” innocent or “probably” guilty. A latter finding would then lead to his dismissal and disgrace, though not to a conviction. Australia hasn’t taken this kind of approach to allegations of very serious crimes like murder and rape. But perhaps it’s time we acknowledge the limitations of the criminal courts for many cases of acquaintance rape, and try something different.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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