Peter Faris’s recounting of his experience as a defence barrister in a rape trial some 30 years ago should not be read as being an accurate account of the way in which complainants are treated by defence lawyers today. The law today protects complainants in s-xual assault cases to a much greater degree than it did 30 years ago.
While each Australian jurisdiction differs to some extent, as a general rule it can be said that evidence of the complainant’s s-xual reputation, s-xual experience, other than in quite specific circumstances, is disallowed. This rule provides some protection for complainants.
Most Australian jurisdictions also provide rules for vulnerable witnesses, which might include rape victims. Such witnesses may be able to give evidence, for example, without having to face the defendant – such an event can be very traumatic for a complainant in a rape case.
There have also been reforms to take away the right of the accused him or herself to cross-examine a complainant in a rape case.
Of course, we must also remember that the right of the defendant’s legal representatives to cross-examine the complainant is a fundamental human right. And in rape cases, while it is rightly said that the experience of being cross-examined can be harrowing for a complainant, for a person to face an accusation of rape is also a truly awful experience in which he or she can expect to face jail if convicted.
So do defence barristers seek to humiliate and belittle complainants in rape cases? It might happen, but such cases are rare. As the late Michael Rush, one of Melbourne’s most experienced rape trial defence barristers, observed in 2003, aggressive cross-examination of victims in s-xual assault cases is generally counter-productive.
Finally, it is even arguable that the pendulum is swinging too far in favour of the complainants in rape cases in some jurisdictions. In Tasmania, for example, the onus of proof has been reversed in rape cases where consent is an issue. It is now up to the defence to prove that there was consent. This rule fundamentally undermines an essential principle of our system – that it is up to the State to prove its case.