February 2022

Essays

The first victim

By Gina Rushton
Image of woman on train platform

© Loren Elliott / Reuters

Does the legal system put people through unnecessary trauma?

The judge, who took up most of the screen, began slowly summarising the 16 charges of sexual touching. In one square a man wearing a face mask stood in the docks of a Sydney courtroom awaiting his sentence. The victims appeared as blank tiles, as did the journalists, lawyers and police.

The offender was a registered paramedic who had provided first-aid treatment across the Sydney railway network. His nine victims were female train passengers, aged 17 to 29, who each fell ill on a train or at a station, typically with nausea or dizziness. Some had fainted, others had vomited. The judge explained the crimes happened “under the guise of genuine medical treatment” in the first six months of 2019.

Is this part of his job? Is this allowed? Is this really happening? How do I make it stop? How do I get out of this safely?

The judge said the man, now aged 40, was “more brazen” with each victim.

“In effect he manipulated his advantage as a trusted health practitioner to exploit each victim’s disadvantage by reason of them being unwell and alone at the time of the offending,” he said.

The first of the victims watched the judge make brief mention of a 17th charge – hers – for which the jury did not convict. Unlike judges, juries don’t have to provide reasons. She would never know if they believed it had happened, or if the paramedic’s barrister had so successfully undermined her credibility as a witness that they thought she was lying or had consented. The hundreds of dollars she had been paid in compensation and hours of free counselling from victim services acknowledged harm in ways the legal process couldn’t, but she wasn’t immune to the words “not guilty”. She watched on screen as she was erased from the four-week trial at its denouement.

Many of the charges were for placing a stethoscope on the breasts of patients for no authentic medical reason, asking them to pull down their bras or on occasion doing so for them without permission. In some cases, the offender pressed the women to listen to their own hearts with the device. He asked his second victim, a teenager who had collapsed on a station platform, to pull her shirt up to around her armpits to expose her bra before he placed the stethoscope on her left breast, centimetres from her nipple multiple times, in circumstances amounting to sexual touching. He asked her if she had a boyfriend, showed her pictures of his car, put his hand on her waist and watched her get on a train to leave.

“At trial the defender’s counsel sought to use the state of illness of each victim and sometimes their medical and even their psychiatric history as a weapon to undermine the reliability of each witness,” the judge said.

As well as his trademark “heart examination”, the man complimented the appearance of his next victim and later copied her personal information from the patient treatment form in order to personally text-message her. This would become a pattern – he told the fourth victim to call him when she had made it safely to work, which she did from a landline for privacy, but he had copied her phone number and sent her “sexualised text messages” in the following few weeks. Without warning, he moved the bra of the fifth woman, who had fainted on a train, exposing her nipple in the treatment room.

The next victim, aged 18, had vomited on the train. After checking her heart rate underneath her bra, he requested she stand up while he sat before her, pressing the stethoscope on her mons pubis region. The judge described how the paramedic made her lower her leggings so he could “listen” to her pubic area. He explained endometriosis, asked if she was sexually active and “persisted to touch her after she questioned his actions”, the judge said.

Another victim, aged 19, was lightheaded and nauseous, and the paramedic noted on the patient treatment form that she had suffered “motion sickness”. He later used the form to find her phone number. While he placed the stethoscope on her breast, he told her “the fourth chamber [of the heart] is always the hardest to get to”, which the judge said was a “signature phrase used by the offender to legitimise the sexual touching of the breast”. Then, without asking, he pulled down her jeans so her pubic area was showing and looked up at her while he pressed around her pubic region, telling her he needed to monitor and repeat the examination two more times after 10-minute intervals. When she asked why he was doing this, he said he was checking for appendicitis and ovarian cancer. He asked her how much she weighed, if she had a boyfriend and if she was sexually active. He asked if she got headaches and put his hands on her temples and told her she had beautiful eyes. He told her she was “cute”, “smart”, “adorable” and “naughty”, and said something about spanking her before unbuttoning the top of his shirt and showing her his tattoo. He asked her if she liked guys with tattoos. “The victim said this made her feel disgusting,” the judge said. The man sent her text messages that night and called her the next day. The woman, half his age, was “really scared and paranoid” that he was going to come to her house, as he had her address. During the “treatment” she went to the bathroom and was so uncomfortable she “held the door shut with her hand”, the judge said. She was the only victim to provide an impact statement, which the judge summarised. She had difficulty sleeping and was scared to be outside of her neighbourhood. She was anxious on public transport, including near the stop where it happened. She had lost her trust in healthcare professionals and avoided interacting with them. It could “reasonably be anticipated” the other women now felt similarly suspicious, the judge said.

The next victim fainted aboard a train and vomited when she got off at the platform. The paramedic noticed her wedding ring, asked her if she was married and then told her he was a “real paramedic” not a “glorified first-aider”. He asked her if she was sexually active and if she had ever had anorexia or bulimia because she was quite thin. He asked her if she had suicidal thoughts. He examined her feet. He put the stethoscope on her breasts and stomach, and on the final examination put his hands in her underwear against the skin, which she assumed was “part of a genuine medical procedure”. He repeatedly offered to drive her home and, hours after she left, he rang her. She immediately told a friend.

An hour after he had put his hands inside the underwear of that woman, his final victim, aged 25, got off the train with painful menstrual cramps. He asked her to pull up her shirt for the unnecessary heart examination while putting his hand on her waist and telling her she was skinny. “During the examination, the offender without warning and permission undid the button and zipper on her jeans,” the judge said. He lowered her jeans and underwear below her crotch, exposing her genital area while he was seated and she stood. He touched her inner groin on either side, coming within millimetres of her labia. The judge said the victim was in shock. The offender took out his phone and showed her photos of tattoos on his back, legs and buttocks. He made a comment about spending the weekend near the address she had written on the patient treatment form. He wanted to check her heart rate over a 20-minute period, but she declined. When she left the treatment room, she rang her mother, boarded the train for one more stop and got off at Central Station, where she approached the first police officer she saw on the street. The judge explained the paramedic’s behaviour was only detected because this final victim had medical training and “terminated the conduct before it could advance to any worse degree”. She was able to discern what the other women might have felt but could not say definitively: that it was unnecessary and inappropriate. She was the only one to report the behaviour, a fact that is statistically unsurprising. 

“Each of the victims was feeling unwell, therefore vulnerable, and the offender exploited their vulnerability to sexually touch them in circumstances where they were unable to protect themselves and powerless to challenge his treatment,” the judge said, adding that the two women who did question the treatment were rebuffed with jargon and “bogus medical explanations for the touching of their bodies”.

The judge said it was likely the paramedic knew he would not be discovered or prosecuted for his “serial and predatory sexual offending”. 

Months earlier the paramedic had been offered a plea deal with a reduced sentence, but he rejected it, instead pleading not guilty to every charge. At the trial his lawyers deemed some of the allegations false and others true but consensual or medically appropriate. 

The maximum sentence for sexual touching is seven years. In October 2021, the paramedic was sentenced to three years and six months in jail and he will be eligible for parole after two years.

The first victim, the now forgotten charge on his list of offences, watched as the paramedic said goodbye to his parents before he was led away. She closed her laptop and then her eyes. She could not move for hours, consumed by her own guilt. If she had told someone other than her partner and her colleague, she might have spared all eight of these other women not just from his dishonest hands but from the brutality of a criminal trial. Later, sleep eventually, mercifully, found her and relieved the singular and inconsolable ache of being denied a version of justice she never wanted, sought or even believed in. 


It was never in dispute that a 27-year-old woman passed out on a crowded platform at Wynyard Station on November 2, 2018. Both the prosecution and defence counsel agreed the paramedic helped her into a wheelchair and took her into a treatment room, and that when she mentioned she also had a sore back and shoulders he examined and then began to massage them. His lawyers claimed this was consensual: he offered and she accepted. In her police statement she said the massage began as a genuine examination in which the question “does this hurt?” transitioned into the question “is this helping?”, and as she froze he named the muscles in her neck and back. Eventually there was no talking, just breathing.

Her version of events was that her limbs then failed her, just as they had when she crumpled to the filthy ground minutes earlier, and that she lay face down on the examination table unable to resist, terrified the touching would escalate. Is this part of his job? Is this allowed? Is this really happening? How do I make it stop? How do I get out of this safely? Her evidence was that she wasn’t sure how – whether he was gathering the material in his hands or hitching it with his hip – but her hem was rising millimetre by millimetre towards her buttocks. She testified that just before her buttocks were exposed she found her strength and pushed herself up, politely asking if she needed to stay for any extra treatment or if she could go home. 

According to her police statement:

At this point I felt scared of the paramedic. I wanted him to feel like everything was normal and that I wouldn’t tell anyone what had happened. At best, I thought he might make me feel like I was crazy and that he had been professional. At worst, I thought he would become aggressive towards me. I was scared because he had my address. I said, “Am I right to go soon?” He told me he needed to take my blood pressure again before I could go.

The paramedic’s barrister did not dispute the fact his client had taken her personal information for her treatment form and later used it to contact her. She received a text message from him the next day while driving to the beach with her boyfriend, who was later cross-examined about this moment. 

In his closing address, the Crown prosecutor read out her boyfriend’s testimony:

[She] got very, very upset at that point in the car. Very, very visibly upset, sobbing, like, distraught. Very, very upset. I would say the most upset that I have ever seen her in our time together. She didn’t go into great detail. She was just very distraught in the car. Didn’t say anything specific that I recall. She said she felt gross and disgusting and angry, angry at the person who had sent her a text message. I very clearly remember that she wanted to get in the water and wash this feeling off.

Nine months after the incident, while she was on holiday, a colleague, the only other person she had told, sent her a link to a news article. “Not very holiday content but this reminded me of your story,” the colleague wrote. The story was about a paramedic who had been arrested for sexually touching two female patients who fell ill on the Sydney railway network. She replied immediately.

WOMAN: Oh my god I wonder if it is him

WOMAN: Fuck he was bald and had the same build

WOMAN: Shit

COLLEAGUE: Sorry I regretted sending this to you after I did it because it is not really helpful

The detective in a photograph accompanying the story contacted her two weeks later, having tracked back through the paramedic’s patient records.

She explained over the phone what had happened. “I feel really ashamed of the fact that I froze at the time and didn’t say anything,” she wrote in a follow-up email, adding more detail in case it was “helpful” for the detective’s investigation.

In her email she reiterated: “I don’t want to make a formal statement or press charges or anything, but … I feel really guilty that I didn’t report him at the time, because if I had, he might not have inappropriately touched those women.”

The detective responded: “I understand that you do not want to provide a statement or have legal action taken, however the information you provide could be good evidence in regard to the whole case and corroborating things that happened to other victims.”

The long list of good reasons why she had not reported the incident a year earlier remained relevant. She was already regaining trust in her own body and in medical professionals. Her wish for privacy and closure was not compatible with a long, intrusive legal process that hinged on the believability of her disclosure. Beyond that, she had personal reservations about the criminal legal process. Her own notions of accountability were at odds with the aim of a criminal charge – a jail sentence – and she did not believe that a conviction would be a vindication of her story or that incarceration was rehabilitative. 

But in the end, none of that could contain or compete with a guilt so potent it bleached her own deeply held beliefs of meaning. Her doubts about the process became peripheral to the sense that she could have prevented his future behaviour had she resisted or reported him. In her mind she had failed to protect the two young women in the news story who had pressed charges, and if this was their version of justice, the least she could do was help them achieve it by also pressing charges. 

She understood her experience with the police had been unlike that of other people who had been sexually violated. She had not been dismissed by the detective; she had not been profiled or treated with suspicion. She had not been asked irrelevant or needlessly intrusive questions. In cooperating, she would be a white, middle-class woman seeking safety where she had been told to her whole life – from the state. 

The detective went through phone numbers she had blocked and cross-matched one to the paramedic’s phone. He took pictures of the red cotton dress she had kept stuffed in the back of her wardrobe. He took screenshots of a message to her boyfriend a week after the incident in which she said she was “really pissed off about the paramedic” and that she couldn’t bear to seek treatment for her back. “I can’t bring myself to let anyone touch me,” the message said. At that moment, her boyfriend became a witness. The detective also took screenshots of the message exchange with her colleague, who then also became a witness. 

She had often thought of what the paramedic had done as administering trauma instead of treatment, and now she found herself participating in what she could only describe as the “traumatic admin” preceding her day in court: giving a statement; pressing charges; providing her address so that the perpetrator couldn’t go within a certain distance of her home; moving the red dress from drawer to drawer, unable to throw it away in case it was needed in evidence again; having to tell her boss; learning how many women had also been touched by this man; hoping that with so much evidence he would plead guilty and there wouldn’t be a trial; understanding that her charge would be rolled up with the other less serious charges for his plea bargain; finding out on the day she was laid off from her job that the paramedic had pleaded not guilty and the case was indeed going to trial; enduring the repeated court rescheduling, two, three, four, five times; receiving a subpoena that warned she could be arrested if she did not show up in court; waiting one day at the courtroom as the paramedic walked past her, only to be sent home and called back the next day.

None of it could prepare her for the three hours in the witness box, which, in the end, left her as distressed as her experience in the train station treatment room. Once again, she blamed herself. Did she not consent to the examination of her body? Did she not consent to the defence barrister’s cross-examination of her actions? Two men in uniforms slowly, calmly and methodically exploiting her trust under the guise of doing their jobs. 


DEFENCE BARRISTER: But as a newsperson, an intelligent young lady, you know that there are avenues where you could’ve complained to Sydney Trains or whatever. You knew that, didn’t you?

WITNESS: Yeah, I would assume so— [the defence barrister interrupts her again]

I remember this too well because this “witness” was me. I was the first victim, this newsperson, this intelligent young lady, whose experience of the criminal legal system would prove as dissociating and destabilising as the instigating incident, the 17th charge for which there was no conviction. 

Of course I didn’t report the incident. As an “intelligent young lady” I knew the chances of investigation, prosecution or conviction were slim, and each carried their own risk of re-traumatisation. I had no interest in unearthing something I wanted buried. I would not have even reported an incident deemed more criminally serious than this one. Of the 2.2 million women over the age of 18 who have experienced sexual violence in Australia, just 13 per cent reported their most recent incident to the police, according to the most recent Australian Bureau of Statistics data. For those who do report it, the chance their case makes it to court is low: analysis by the ABC found that just 30 per cent of the 140,000 sexual assaults reported to Australian police in the 10 years to 2017 led to an arrest, summons, formal caution or legal action. Thousands were disbelieved and rejected by police and at least as many were withdrawn by the victim, while 34,000 were “cleared” or resolved without action. 

Years ago, a Crown prosecutor admitted to me that if his daughter was raped he wouldn’t encourage her to go to the police as the chances of investigation or successful prosecution were so slim.

As a newsperson, I have reported on the acquittal of two men and two boys accused of gang-raping a 15-year-old. “The police told us at the start of the trial that it was a legal system and not a justice system,” the victim told me after five years of investigation and prosecution. “But I just never would have gone through all of this if I’d known it was pointless.”

I have reported on a man found not guilty of raping his Tinder date, who had called the police and gone straight to hospital after the incident. The lawyers successfully argued the exchange was consensual. I have reported on the trial of the New South Wales premier’s brother, found not guilty of raping a woman who also attended hospital within hours of the sexual encounter. The lawyers successfully argued the exchange was consensual. 

I have interviewed Saxon Mullins, who endured two rape trials and two appeals, despite a court finding she had not consented to sex, and I reported that the accused was acquitted on the basis of a mistaken belief in consent. Mullins has written that the court expected her to flee, to resist – to “be a better rape victim”. 

In fact, as a newsperson, I can only remember reporting on two sexual assault cases where there was a conviction: in one the accused pleaded guilty; in the other the accused had admitted to rape and threatened it again in a text message.

My professional and personal awareness of sexual violence, and the avenues through which you can report it, are the reasons I never would.

In court, copies of a story I had written were handed out to the 12 jury members. I avoided the expressionless face of the prosecutor, and not once did I look at the paramedic. Instead, I looked at the hands of the clock and willed them to move faster. 

The defence barrister suggested it was my job to report on sexual assault; I explained that I reported on many things, including sexual assault. The jury rifled through the article, one of almost 130 news stories I had written that year, most of which were not about sexual violence. It was a five-paragraph breaking-news piece written following a NSW Police alert about a chiropractor charged with 11 counts of sexual touching. The defence barrister questioned me about the article for as long as it took to write it. He sought to use my knowledge about sexual violence, and my previous reporting of it, to undermine my credibility.

In his closing address the Crown prosecutor asked what the relevance of writing this article had in my own case. He said there seemed to be some expectation that I should “act differently” when it came to reporting a crime to police.

PROSECUTOR: When you noticed that breathing, how did that make you feel?

WITNESS: Like I just had to get out of there. I… I… yeah, I didn’t know what… what… yeah, what was going to happen.

PROSECUTOR: You mentioned before that there was a security door or something that you’d gone through to get in there?

WITNESS: Yeah, I… I just didn’t know exactly where I was. I knew that – I didn’t know how, I felt frozen in my body anyway – but I didn’t know if I could get up, like, I didn’t know where… how I would get out or, like, where exactly I was, or if I had phone reception, or anything.

PROSECUTOR: At some point, did you want the massage to stop?

WITNESS: At every point.

I assumed the paramedic was employed by NSW Health, but in fact emergency healthcare on the Sydney railway network has been privatised by the state government. He worked for a family-owned recruitment and safety consulting business contracted to provide paramedics at busy stations and minimise interruptions to the train service. When it won the Transport for NSW contract, the boss was “freaking out”, he told News Corp in 2015, as it had to quickly source and interview paramedics. The company reviews safety at workplaces and provides training for manager and supervisor due diligence, work health and safety, and bullying and harassment. 

In April 2019, the company did not yet know that four women had already been sexually touched by the paramedic, but it had received a complaint from a young female paramedic who claims she was sexually harassed by the same man. He was her direct manager. In a statement provided to the company, Sofia – not her real name – claimed he sexually harassed her both times she met him. On her first day, she said she asked him where to find black cargo pants for women. Sofia said he told her the black jeans she was wearing were fine and he liked the way she looked when she walked away from him. She said he told her it was dangerous for him to be working with her as she was cute and that the contracts didn’t state that colleagues couldn’t date. “I was so uncomfortable, but I’m very bad at speaking up in the moment when things are happening,” Sofia, now 30, says. In documents provided to the business were screenshots, matched to his phone number, that show he called her and sent her inappropriate messages. She had at one point taken her cat to the vet and he had joked about her “pussy needing attention”. She did not reply. Sofia told the company that when she mentioned she would nap between shifts, he offered to let her nap at his house and joked about watching her sleep.

Sofia cancelled shifts as she was anxious about interacting with him, even though she needed the $26 an hour. She says when she met with the business owners, one of them asked her whether she agreed to go on a date with the paramedic (she had not) and told her she needed to “speak up for herself more”. (The Monthly put these claims to both directors and received this response: “We have been advised that due to confidentiality that we are unable to comment.”) When Sofia followed up again, the owners emailed her to tell her the paramedic had been issued a warning for his behaviour, and if it continued he would be dismissed. In the email, the boss said the paramedic had been told not to contact her on social media or on her phone, and that he must provide her with a written apology. She never received an apology, and she left the job a month later.

“I just couldn’t believe that it went that far,” she says now. “I know sexual harassment often turns into something worse, but I can’t believe it took that long for anything to happen. I reported him in April and the last victim was in July.”

After she read the news article about the two station incidents, she called the train network to provide information in case it was helpful. She made a police statement, but she was never called on to give evidence, which would not have been as a victim – workplace sexual harassment is most often treated as a civil rather than a criminal matter. 

“It is really disgusting,” she says. “Most years we are voted the most trusted profession and to use that to your own advantage for something so horrendous… He has ruined the trust people have in medical professionals.”


I was told from my first call with the prosecutor that he did not represent me, he represented the community, and his role was to arrive at the truth by giving a jury all credible evidence relevant to the alleged crime. Anything I said on the call could be handed over to the paramedic’s lawyers. I was referred to as a “witness” from beginning to end, as though I had watched rather than felt those hands knead my rigid body. 

Every accused person is presumed innocent until proven guilty under the rule of natural justice, which means every survivor in court must submit themselves to the excruciating process of being constructed as a liar.

During cross-examination the defence barrister proposed that the paramedic told me he would give and receive massages with his martial arts friends, and with this information I had gladly accepted a massage because I was sore after attending an exercise class that morning.

WITNESS: Are you… Sorry, are you proposing that that’s what he said to me?

DEFENCE BARRISTER: I’m suggesting that’s what he said to you in the context of that conversation about your bootcamp and his martial arts sessions.

WITNESS: No.

DEFENCE BARRISTER: Are you quite sure?

WITNESS: I’m certain.

DEFENCE BARRISTER: Even though you were not quite with it that day?

WITNESS: Yes, even so.

The barrister suggested that minutes after passing out I had verbally consented to letting a stranger massage me and that I “smiled” throughout the experience and repeatedly said “that’s good, that’s good”. 

In his closing arguments, the Crown prosecutor would remind the jury of the look on my face when the barrister put this alternative version of events to me. 

When I left the train station treatment room, I was aware that what had happened was not a failure on my part, even if I was slow to define my freeze response as self-preservation. When I left the courtroom, I felt as though my integrity had been challenged and my behaviour had been presented as irrational. Unlike sexual violence and harassment, which most women experience in some small way, the experience of being treated as a liar when I was telling the truth was unfamiliar. This is not to normalise or minimise the offence, but to say, as I did to a therapist afterwards, that it felt as though someone had attacked what I knew to be true, and that when you are regaining your trust in others and in your body, the truth is all you have. The truth explains why you are wary of medical professionals, you can remind yourself; the truth is why your heart is beating a little faster at the train station, and that’s okay.

Despite the prevailing cultural narrative, the criminal justice system is not there to meet the needs of the complainant. In fact, as psychiatrist Judith Herman describes, the requirements of legal proceedings are often “diametrically opposed” to what victims and survivors need not just to recover but to secure justice. “Indeed,” Herman writes, “if one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law.”

Or, as lawyer Michael Bradley puts it: “This system rips off the scar and just keeps digging into the wound.”

Bradley has represented numerous victim-survivors, including Kate, the woman at the centre of the Christian Porter allegations, and more than a dozen victim-survivors involved in the Let Her Speak campaign, including 2021 Australian of the Year Grace Tame.

“The minute they make the report,” Bradley says, of victims, “everything turns on them and they carry the full burden of the whole process, from start to finish, because the presumption of innocence necessarily means her testimony is wrong. Not necessarily dishonestly wrong, but her experience is discounted and she has to keep proving it over and over again to the satisfaction of strangers: the police, the prosecution, the jury, the judge and the defence counsel.

“It is inevitable that most survivors going into that system will be disappointed at a minimum and most likely worse when they get to the other end of it.”

The criminal system generally requires the “perfect victim” because reasonable doubt is a “very small thing”, he adds.

“As matters stand, if you commit a rape, you have less than a 1 per cent chance of being convicted of that crime, so it is actually negligible and you’re pretty much assured you’ll get away with it. 

“If [the survivor’s] story is not accepted without any doubt then the case falls, and no survivor could not receive that as a rejection of their experience … If you had any notion of what you would be subjected to, and understood that there was a very little prospect of conviction and that rejection was waiting for you at the end, you’d have to be mad to do it.”

Bradley says that, anecdotally, the survivors he has dealt with are rarely seeking punishment of the perpetrator – “it isn’t at the top of the list and often isn’t on the list at all” – but are more interested in agency, power, autonomy and choice, all finite resources for the complainant in a criminal trial. 

“The system isn’t equipped to deliver anything that really lines up with what most survivors seem to really be seeking,” he says. “There is a mismatch and there is no conversation about that disconnection.”

Professor of criminology and criminal justice Kathleen Daly has narrowed down five elements of the interests of victims when it comes to justice: participation, voice, validation, vindication and “offender accountability-taking responsibility”.

I did not want to participate at all, but once I had pressed charges I was kept abreast of developments and told of my options. The only choice that was mine to make was whether or not to appear via videolink or in the courtroom in person. There is no sense of participation once you are inside that room. 

The legal banter and cheeky rapport I once would have found a charming reprieve from the dullness of reporting, a display for the audience at the back of the courtroom, felt isolating and inappropriate from the witness box. The defence barrister smirked and joked with the judge and his learned friend, the prosecutor, as I sat waiting. I was directed to read exhibits and was to speak only when directed to by one of these three men. With each question they used my response to sharpen and polish their competing narratives. Witnesses are not there to participate, they are there to be wielded. 

Daly says the notion of having a voice or “the ability to tell one’s story” is the most frequently mentioned justice interest of victims and yet it is almost impossible to facilitate in a criminal legal process. Sexual assault complainants very rarely have legal representation in court and are able to speak only to the questions they are asked and, even then, they may not be able to answer completely and honestly. Minutes before I took to the stand, a highlighter pen was dragged through the parts of my statement that I was forbidden from speaking about, lest they cast aspersions about the state of the mind of the paramedic.

DEFENCE BARRISTER: He didn’t sexually touch you, did he? The paramedic didn’t sexually touch you, did he? 

CROWN PROSECUTOR: I object, your Honour: that’s the ultimate issue in the trial, I think. It’s not for this witness to answer that question.

HIS HONOUR: Well, I’ll allow the question.

DEFENCE BARRISTER: The paramedic didn’t sexually touch you, did he?

VICTIM: Yes, he did.

DEFENCE BARRISTER: By massaging your shoulders—

VICTIM: It was—

DEFENCE BARRISTER: —he sexually touched you, did he?

VICTIM: Well, I’ve been told I’m not allowed to say why I think it was sexual, like—

The defence barrister interrupted to insinuate that the police officer somehow told the victim what to say on the stand. The judge intervened and cautioned the defence barrister.

The closest to a voice a survivor gets in court is a victim impact statement, which is granted only to those who receive a conviction. 

Validation, as Daly describes it, involves affirmation that the victim is believed and is not blamed for what happened. Even if this is present in a conviction, it is certainly not guaranteed at any step of the process, from the first interaction with police to the time in the witness box. 

Even where there is a guilty verdict, Daly’s definition of offender accountability-taking responsibility isn’t always achieved for the victim, as it requires that alleged perpetrators are not only called to account but also take responsibility for their behaviour. 

“There is no evidence before me of any remorse or contrition,” the judge said in sentencing the paramedic. “The offender has said ‘I one hundred per cent think I haven’t done anything legally wrong’, although he did acknowledge that having contact with victims in pursuit of dating and spending time with them socially was both unprofessional and inappropriate.”

He added: “[The paramedic] said that the charges have completely destroyed his life and negatively impacted his family, and ‘the victims will now go through life believing they are victims of something that didn’t happen, consequently developing a negative and poor opinion of men in general’.”

Daly writes that punishment is one component of vindicating a victim but it does not comprise accountability. I had no interest in retribution. My first priority was to heal slowly and privately, which was interrupted by the criminal legal process. By my definition, accountability involves an understanding of harm and an effort not to repeat it.


DEFENCE BARRISTER: He didn’t touch… he didn’t go anywhere near any of your private parts, did he?

WITNESS: He didn’t have to.

Defence lawyers are no longer allowed to ask about a complainant’s sexual history in a trial, but they don’t need tools as blunt as that to undermine a witness’s credibility. The implication is clear when you repeatedly ask someone why they didn’t resist or object: they should have, or perhaps what they’re alleging never happened. The implication is clear when you repeatedly ask someone why they didn’t report: they should have, or perhaps what they’re alleging never happened. The barrister didn’t ask me if I had fabricated my statement. He didn’t have to. 

He repeatedly asked me, if I wasn’t consenting to the massage, why didn’t I resist and protest, or refuse to lie down when the paramedic told me to. The Crown prosecutor interrupted and objected to the questions, and added that the barrister knew “full well” there was a “whole body of evidence on this”, presumably on the freeze response, though that was never said explicitly. 

The myths about what a person should do when someone is violating their body don’t just live in the minds of jury members, lawyers or judges – we internalise them. Every question he asked was one I had asked myself.

The month after the paramedic was sentenced, NSW criminal legislation was overhauled to include a requirement to establish affirmative consent in sexual offence proceedings.

“Affirmative consent switches some of the focus away from the victim and on to the perpetrator and what steps they took [to attain consent], and that’s not insignificant,” legal academic Dr Rachael Burgin says. 

Burgin, who is executive director of Rape and Sexual Assault Research and Advocacy, campaigned for the reform alongside survivor-advocate Saxon Mullins, whose horrifying case prompted a review of the laws in the first place.

“To run away and kick and scream was not how my brain had chosen to protect me on that night in 2013,” Mullins has written. “I did what many victims of assault do. I froze … According to the court, my frozen body was all the consent that was needed.”

Such changes in the law should have an impact on how a case unfolds in the courtroom, but Burgin says the law also shapes what happens in the earlier stages of a criminal process.

“Police know it matters if she didn’t resist and they make decisions about what they think will happen later, as do prosecutors,” Burgin says. “Cases are more likely to proceed to trial, or the offender is more likely to enter into a plea negotiation, where there was active resistance or evidence of force or injury.”

Under the reforms, there are five new jury directions that judges can give at a trial to address common misconceptions about consent, which is significant. Jurors are not immune to the prevailing myths about what makes a perfect victim. 

A November 2021 study conducted by Australia’s National Research Organisation for Women’s Safety sought to understand why, despite the fact that false allegations of sexual assault are rare and that almost 90 per cent of women who experience assault do not report it, as many as two in five Australians mistrust women’s reports of sexual violence. The study found women must meet unrealistic expectations for their reports to be believed, while the actions of men accused of sexual violence to confirm consent are rarely scrutinised. The default for women was “doubt and suspicion”, questioning whether the woman was explicit enough when she said no, whether she could show evidence of physical injury or whether she had an “ulterior” motive for reporting the assault, such as covering up consensual sex because she was ashamed. The study participants overestimated the prevalence of false allegations, and allegations were mistrusted if a woman’s story was inconsistent and if she hadn’t reported immediately to the police.

Under the law in New South Wales, consent can no longer be assumed; it must be communicated in some way, which might change the way in which trials deal with a victim who had a freeze response, potentially limiting the interrogation as to why they did not physically or verbally resist an assault. 

“Law reform finds its limits pretty quickly,” Burgin says. “It is not by any stretch of the imagination a silver bullet, and these reforms will not completely overhaul the criminal justice system’s response to sexual offences and they won’t prevent sexual violence.”

There is a palpable push to take gendered violence more seriously through the law. It propels the campaigns for reform and debates about bail, sentencing laws or criminalising coercive control. I understand the desire to see abuse broadly defined, to elicit greater recognition of the many and invisible harms it causes. I recognise the exhaustion with the minimisation, the justification, the lack of consequences for most people who perpetrate it. Perhaps to protect people and deter others it is paramount that the gravity of harm caused by sexual abuse is reflected in the severity of punishment. Maybe that is not only overdue but corrective: if we didn’t edit the law every so often, rape would still be a property crime. But there are legitimate concerns – many voiced by groups traditionally brutalised, over-criminalised and undermined by law enforcement – about the consequences of prioritising criminalisation in the struggle for safety. If we are multiplying and strengthening the limbs of the criminal justice system, should we not better appraise how they touch the lives involved? Do we want more survivors engaging with the system as it is now? Do we believe higher conviction rates and longer prison sentences are successfully addressing sexual violence or meaningfully rehabilitating offenders? The rate of criminal offending in Australia fell by 18 per cent in the decade to 2020 while the incarceration rate rose by 25 per cent. We pay around $330 per jailed person per day while community-based rehabilitation programs and survivor support services struggle for funding.

If the incident I was involved in had been more criminally serious, more personally terrifying, more violent, more debilitating, perhaps I would prioritise personal vengeance over peace. I am not immune to the fantasy of revenge – the first thing I said through my tears after cross-examination was that I hoped the barrister developed gout – but I can’t imagine that private feeling ever evolving into a logic whereby sexual violence is solved through carceral means.

“Sometimes people may need to be removed from our community for a short amount of time,” says community lawyer Thea Deakin-Greenwood, “but we should also be interested in what happens next and how we integrate those people, because ultimately that is a crime prevention issue.

“When people are socially isolated, banned from employment, banned from living in certain areas, banned from services, banned from getting a job because of their criminal record, that is doing further harm to that person, and it actually risks recidivism.”

Deakin-Greenwood works with survivors of violence to validate their experiences and support them in understanding their options, and is working with legal practitioners. Along with Wellington academic Jane Bolitho, she has founded Transforming Justice Australia, a survivor-led restorative justice initiative for sexual assault, modelled on practices that work alongside and within conventional justice, such as Project Restore New Zealand and Open Circle in Melbourne. 

“Restorative justice is really any process or opportunity where the victim and the offender, and anybody else – individuals or community members – who are impacted by the crime, actively participate in the resolution of harms arising from the crime, often with the help of a fair and impartial third party,” Deakin-Greenwood says. 

The vast majority of her clients over the past two decades have not expressed a strong desire for the person who caused them harm to go to prison, even for a short period of time.

“Most of the time they want the harm to stop, they want to be believed and they would like to know the person has got some help so they don’t reoffend. Our criminal legal system does not offer those assurances even on convicted matters.” The 1 per cent conviction rate does not justify the system’s treatment of survivors, “or give an opportunity for people who are responsible for sexual violence to fully engage, understand and potentially change their behaviours towards mainly women and children”.

Restorative justice can entail a face-to-face victim–offender conference, often after months, even years, of preparation before meetings with family and community members or letter exchanges between the people harmed and the people responsible for the harm. It is not proposed by advocates as a substitute for criminal justice and the two can run alongside each other, although this is new territory in Australia. There is a restorative youth justice conferencing scheme in New South Wales, but it does not include sexual violence. For adults, there are options for restorative justice once an offender has been convicted, but it is not a specialised practice for sexual assault. In November, the Victorian Law Reform Commission recommended that restorative justice should be an additional option when the person harmed doesn’t want to report or pursue criminal prosecution, where there were insufficient grounds to file charges or when the prosecution was dropped, as well as after a guilty plea and before or after sentencing. 

Some feminists have argued that restorative justice is a “re-privatisation” of sexual and domestic violence – that the fight for it to be understood and resolved through our most serious institutions falters if we risk pushing it back behind closed doors. There is a notion that because restorative justice can replace criminal penalties, including jail time, it does not hold perpetrators accountable. 

“Bearing witness to the pain you have caused is a very difficult thing to do,” Deakin-Greenwood says. “We underestimate how hard it is to sit and listen, to hear a disclosure and really fully understand the emotional, psychological, physical and spiritual impacts of somebody’s trauma. This can be part of a perpetrator’s accountability for some survivors, who want to tell their story and be acknowledged and heard … It can be transformative for people to fully comprehend the impact of their behaviour.”

In the criminal process an offender might hear these words from a survivor at the end of a criminal trial in their victim impact statement. I didn’t provide a statement because I didn’t get a conviction. In a restorative process, the impact of the harm is the starting point, not an addendum. 

What would I want to communicate if given the opportunity? I would tell him about how relieved I felt when he arrived on the train platform to help hoist me into the wheelchair and take me away from gawking rush-hour commuters. I would ask him to remember how readily I surrendered my body to the trustworthy person I thought he was, a person he could still be.

I would tell him about how, a few months after that day, a cyst burst on my ovary and I began internally bleeding out of my uterus and into my pelvic cavity, and pleaded with my boyfriend to call a cab to the hospital instead of an ambulance. I would describe the rising fear in my voice once it became clear the pain had bolted my body to the floor, begging my partner to get clothes, to make sure I was dressed and covered when I had to face a paramedic again. 

I would tell him that trust for me now involves self-discipline. It did when I went into emergency surgery that day. It did when I kept fainting and attended a cardiology lab a year later, strapped to a wooden bed, tilted until the blood drained to my feet, testing how soon I would pass out. I would tell him about the singular and sickening déjà vu of turning to the nurse, just as I had turned to the nearest woman on the train platform, to quietly announce that I thought I might pass out. The quick trust in the bonds to hold my weight and in the nurse to release me. I would describe the terror I felt each time I fainted or almost fainted until I had a diagnosis. I would tell him about the way the darkness slowly descends on you, and something seems to swoop past your ears to nest in the rafters of your skull, cooing loudly. Eventually all you can hear is the whirring of your own blood and beneath it the pulsing fear that once your limbs betray you, someone else might too.

I am sure an encounter with him would be confronting, but for whatever reason it seems more productively upsetting than having my credibility undermined for hours before an audience of strangers.

Even the head of the NSW sex crimes unit, Detective Superintendent Stacey Maloney, has suggested restorative justice processes would make space for acknowledgement of harm.

“At the end of the day, the vast majority [of sexual violence involves] poor behaviours that need to be modified so [that offenders] have an understanding [of what’s] not okay,” Moloney told The Sydney Morning Herald. “How do you get to that, if we can’t have an honest conversation?”

She called for a reduced stigma of sexual offending so that people can more easily admit guilt and apologise rather than drag their victims through a gruelling court process, as she weighed into the debate about the potential creation of a lesser offence of “negligent sexual assault”. Whether such a reform minimises sexual harm or would encourage guilty pleas to spare everyone a criminal trial is unclear, but Moloney said it is not about “watering down the seriousness” of the offences.

 “If we look at the data, we’re not getting anywhere: nothing’s being resolved, victims are still becoming victims, and offenders are still not understanding that the behaviour is not okay,” Moloney said. “That’s the reality of it.”

Former defence lawyer Nareeda Lewers manages Open Circle, a program within the RMIT Centre for Innovative Justice, in Melbourne, offering restorative measures for some crimes, including sexual offences. Its model prioritises the needs of the victim-survivor and accepts referrals from the criminal legal system and from people who have not reported the violence to police.

“We would never advocate for this replacing the criminal justice system,” Lewers says. “We see it as something useful to expand what is on offer for victim-survivors.”

Lewers says the legal system copes best with matters that meet the criteria for what most people think of as sexual violence: that committed by a stranger involving “levels of terror and physical violence” and a victim who fights back or otherwise actively resists. 

“[But] as sexual violence prevention-advocates stress, most sexual violence isn’t like that and it is about non-consensual behaviour by someone who the victim-survivor knows or is in a relationship with,” she says. 

“I don’t think the criminal justice system necessarily deals with those matters that well, and part of it is still that dichotomous thinking about a ‘criminal’ versus a ‘normal’ person. And so there is a decision about ‘Is this person guilty – if so they are a sex offender and therefore a monster – or are they a good bloke?’”

Lewers believes in the legal principles that give accused people the right to have the evidence against them challenged, but the process “isn’t very conducive” to accepting full responsibility. 

“It requires a degree of vulnerability, and when you have the weight of the criminal justice system bearing down upon you, threatening your liberty, that place of vulnerability is quite hard to access. 

“In Victoria, for adults who have used sexual violence there is nothing available in the community, no organisations or formal rehabilitation. There are programs in prisons, but they target what we would think of as that classic serial sex offender who engages in stranger rape.”

Renee Handsaker, a restorative justice convenor for Open Circle, says the initiative is not one-size-fits-all. “Perhaps [the victim-survivor] wants the person responsible to be accountable, to listen and acknowledge, and apologise for the impact of the sexual violence,” Handsaker says. “So we will work with the person responsible, seeing if we can get them to that place. And if not, we will come back to the victim-survivor and say, ‘This is where they are at, and this is what might be possible in this process, and if that is all that is on offer do you still want to go through with this?’

“It’s not rocket science, it just involves asking ‘What would a respectful and meaningful engagement – where you’re centring that victim-survivor as the expert in their own life – look like?’, and then designing it around that.”

The program uses “accountability specialists”, including some working in the men’s behaviour change sector, to help the facilitators to avoid colluding or unknowingly minimising or justifying violence. “As facilitators are part of a patriarchal and colonial society, we are not immune to myths and misconceptions,” Handsaker says.

“We are guided by the principle of ‘do no further harm’,” she says, and there is an ongoing assessment of the needs and obligations that have arisen from the harm. “It is voluntary and consent based.”


When you book in for a remedial massage from a trained professional you take off most of your clothes and allow a stranger to cause you excruciating pain. You consent – that is what helps to distinguish the procedure from a violent crime – because you hope it will be therapeutic, that amid the agony, knots in your muscles will be untangled.

We implore abuse survivors speak up. We conscript them in the war against sexual violence, asking them to subject their sorest spots to more pain. We use them to identify harm and then demand they take part in a process that might expose them to more harm. All the while we pretend this process is cathartic, that it is reparatory, that this is what they asked for, that there will be a release.

“It will feel good to see him handcuffed and taken away,” a loved one said to me before the sentencing day. It won’t, I thought. It didn’t. I watched his mother, eyes gleaming above her face mask, edging towards him as the guard asked him to empty his pockets before he was taken away to begin his sentence. She cried when she was finally allowed to hold him, and I heard her say the words “so strong”. She attended every day of his trial, a lunchbox at her feet. She held her own hands, folded neatly on her lap. I felt her glare. Two women waiting outside a room that had made them adversaries. Both anxious, both inconvenienced, both disturbed by the behaviour of one man. Two women who wanted this to be over.

In his closing address, the Crown prosecutor had reminded the jury about when I was interrogated about why I didn’t go to the police. 

“She said, ‘It was something I wanted to forget about.’ After three or four weeks of trial, where you have seen the trial process, you might understand that Ms Rushton did want to forget about it. You might understand that when the police said, ‘Look, do you want to give a statement?’, she said ‘Look, no. I don’t want to give a statement or lay charges.’ You might understand that.”

Gina Rushton

Gina Rushton is a Sydney-based journalist and author.

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