Greg Barns is right to mention changes to rape laws in Australia, (“Rape victims are no longer as vulnerable as Peter Faris thinks“) but wrong to conclude the pendulum has swung too far in favour of complainants.
New legislation in Victoria, for example, gives stricter guidance to judges on the warnings they can give juries when a victim delayed reporting the rape to police, recognising there are good reasons why some victims don’t or can’t report straight away (fear, shame, etc).
Previously in these cases judges would warn juries that it was “unsafe or dangerous” to convict on only the victim’s word. This example, among many, is why some legal commentators say rape laws are based on an historical assumption that women are inherently untrustworthy as witnesses and, therefore, lie about rape.
But are such assumptions really history? Rape trials in Australian courts today still often hinge on whether the victim “consented” to the act (lack of consent makes penetration unlawful). This means she might be cross-examined on what she was wearing at the time, whether she’d been drinking, just exactly how far it went in, and so on – questions which aim to question her credibility, and whether she’s the “type” who might have actually agreed.
The scrutiny of the court is more on “the complainant” herself, rather than on the person who has actually been accused. Research has found that “complainants” in rape cases are typically cross-examined for much longer than witnesses in other cases involving acts of violence. Some victims report the experience of going to court as tantamount to abuse – characterised by profound harm and disempowerment – all over again.
If we were seeing a substantial pendulum shift towards the victim in rape cases, we might find more victims approaching the justice system for justice.
Unfortunately this isn’t the case. Recently released ABS statistics found only a 5% increase over the past ten years in victims of sexual assault who reported the act to the police. In particular, rapes of indigenous women, women with a disability and the mentally ill rarely reach the courtroom, let alone a conviction.
Sure, some things have changed – but the scales of justice still look pretty uneven to me.
For more information, head to the Australian Centre for the Study of Sexual Assault website.