Jun 12, 2018

How Australian courts are stacked against victims of sexual assault

More people are speaking out against alleged abusers, but the legal system is still mired in entrenched biases that could ultimately deny them justice.

Bri Lee — Freelance writer

Bri Lee

Freelance writer

sexual assault courts

Much has been written about jury trials since the #MeToo wave came crashing through society. The movement that began with questioning men’s behaviour towards women has now rolled swiftly through to a questioning of the systems and establishments that either implicitly facilitate or expressly encourage sex offending. I’m interested in turning this critical lens in on the legal process itself.

In Australian courts the judges decide matters of “law” and juries are tasked with determining questions of “fact”. It’s a critical distinction, albeit with blurry edges. A judge may exercise his or her discretion to temper an aggressive cross-examination, and has some room for movement in how to answer a question from the jury about the definition of “consent”. A judge will decide whether evidence of prior sexual history -- either the complainant’s or the defendant’s -- is admissible. Critically though, it is the jury who decide if the actual elements of a criminal offence have been made out. In a trial for sexual assault between adults (as distinct from child sex offences, where consent is rarely a live issue), this means that in a “he said, she said” scenario, the final decision on who to believe is up to 12 random members of society.

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10 thoughts on “How Australian courts are stacked against victims of sexual assault

  1. Marcus Hicks

    It’s not just the jury system that has failed us, it is the entire adversarial justice system. The adversarial approach may work for some kinds of cases, but for cases of a sexual nature I feel a more European style of courtroom would work much better.

  2. zut alors

    Nor are juries a representative cross-section of our society. The majority of people I know who have been called up for jury duty manage to dodge it – especially if an employer is prepared to say they are doing essential work & cannot be spared.

  3. kyle Hargraves

    An interesting account of the “wheels of Justice”. A moderate amount is likely to be assumed by the general public but it is nice to have some confirmation – so to write.

    “A not-so legitimate use is when … ”
    What was not mentioned is that the British-based/USA justice system is “Adversarial” in contrast to the European (neo-quasi Roman /Napoleonic Code) “Inquisitorial” system. In the case of the latter the Judges undertake most of the examination of the facts and not the prosecutors. In some cases the statements need not be given under oath. Better? ..mm ..!

    If I recall I think it was an episode of Mortimer’s Rumpole of the Bailey where the Judge complained of the inconsistent evidence of the witnesses “Am I not to hear the truth Sir Joshua”? “No, my Lord, merely the evidence” – was the reply.

    “A large consideration is of course, how they think the matter will run at trial”.
    Which is an entirely rational reaction.

    “So what is the answer to all this unfairness?”
    In the case of an Adversarial system there can be no such thing as “unfairness”. Over time, in regard to the statistical Law of Large Numbers, it “comes out in the wash” as the saying is. It is the “whole” that is of significance; with undue attention to the individual case we chase our tails trying to perfect the imperfectable. What is possibly unfair, is that the plaintiff / appellant gets to sum-up last and not the defendant /

    “to have someone judged by their peers”
    Which is just the issue – is it not?

    >We could prevent juror vetoes
    And, in this day an age, have the jury selected entirely randomly via (e.g. Excel’s or other spread sheet) Random Number Generator! The criteria for Judge-only trails needs to be made clear or a universal option.

    “We could agree on a progressive definition of consent”
    Perhaps you mean the Leglistature could agree on a “progressive” definition of concent and Judge-law (common law) could modify it over time

    “Other countries do it better. ”
    Just how do we KNOW that other countries “do it better”? Where is the statistical evidence? Where are the controls (the variations to ascertain just what, in fact, is being measured or evaluated) on the statistical evidence?

    > In Austria two jurors must be the same gender as the complainant.
    Well – a stagger in the direction of a “peer” – I suppose but what about age or education or lifestyle or religious orientation or the same label tee shirt or any other damned thing that could be associated with identity politics? Then, what about, as conveyed, outright random-number selection – which “ought” to “equalise” over time in terms of the above-referenced law.

    As conveyed : an interesting article but there is one very serious omission : databases! The Law Society became rather flusted at the prospect of a national database that would recored ALL cases and provide advice as to “easy” or “hard’ Judges or Magistrates and competent or average or incompetent Council. The proposal was mooted as databases (DBaseIII or “that thing” for Micro$works) came to be within the budge of the average household. The initial plan was that the data dould be downloaded and run in a given S.O.o.H. database. It remains an initiative that could make an appearance. Perhaps the wealthy-gentleman’s pastime of litigation has now been extended to all and sundry – such being ‘the problem’. Adopt the advice of Dickens and have nothing to do with the Law. As an aside, I have evaded every attempt to have this civil undertaking inflicted upon me (and, of course, have succeeded)!

  4. [email protected]

    These problems are compounded in Victoria where the Judges are appointed by the executive of Parliament. In every other Australian state they are appointed by the Bar Council!!!

  5. Desmond Graham

    So a brief stint as a public servant, judges associate, translates into greater expertise to conclude that the courts are stacked against the victims of sexual assault. Hardly a CV which would qualify for any job as an expert on a topic. The observations are interesting-it is common knowledge that young people are quicker to convict- so it is common knowledge younger people do not deliberate. Older people think more then. Never knew this was a defect. But never mind, put more young on for a quicker and more conviction results, that of course would not be unfair. In most cases whatever the defects of the jury system they arrive at the proper interpretation of the facts.

    Of course the highest point of attrition of any criminal complaint to the police is at the police stage . That is their job to assess available evidence and does it fit the criteria of criminal behaviour. Or is the complaint unsustainable as a criminal activity.

    The main content of the article seems to be to prevent unfairness just move the unfairness to another column in the social ledger. Of course another avenue is to invite someone with expertise to comment.

  6. Brett D. Wright

    Another piece of pseudo-journalism from the Crikey Creche. The author argues for more young people on juries because it seems the young are quicker to convict and, let’s face it, what the criminal justice system needs is fewer jurors who “take pause before locking someone away.”

    1. Andrea

      Yes, she does her cause no favour with this terrible argument.

    2. Allioop

      I think her argument is that the young people will cancel out the old people, and we’ll have a fair decision somewhere in the middles. Seems fair to me.

      1. kyle Hargraves

        (1) What do you intend but the remark “cancel-out”?
        (2) How, definitively, does ‘longer deliberation’ by “old people” result in less equitable decisions?
        (3) Just how is the acknowledged inexperience of young people conducive to justice via (apparently) quick(er) decisions?
        (4) The clear implication of your “solution” is to mandate the age of a jury from (circa) 30 to circa 48. If such is the case why don’t we confine the electoral suffrage to age 30-50 or some definitive range? That, apparently, and I quote, would “seem fair” to you (but irrational to others).

  7. albacore

    Why bother with trials at all? Obviously if a women complains about a man it is true and must be upheld without evidence. When men do bad things it is because they are evil. When women do bad things it is a cry for help. I was taught that at school. So let’s just avoid all the expense and hassle and send men straight to jail. Problem solved.

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