25 August 2023

Sexual assault court could fix conviction rates in flawed system, but due process is bedrock

| Genevieve Jacobs
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Law Courts of the ACT

Could a sexual assault court fix the problems victims experience in the ACT’s court system? Photo: Michelle Kroll.

If the past year of allegations, counter allegations, smears and conflict in the Lehrmann matter has taught us anything, it’s that there are no easy legal solutions in many cases of sexual assault.

This is not news: sexual assault by a perpetrator known to the victim is both more common and harder to prove than violent assault by a stranger, which remains rare.

That’s not to dispute the reality of assault allegations: distressingly large numbers of women (81 per cent according to some studies) and many men report they have experienced some form of sexual harassment, assault or coercion during their lives.

These crimes can have devastating consequences for mental and physical health, emotional wellbeing and future relationships. Only about 13 per cent are ever reported to police, and it’s surmised this is often due to anxiety about re-living the trauma in court, without any guarantee of justice.

Those are well grounded fears: in the ACT there were more than 500 reports of sexual offences to police in the 2021-22 reporting period, with very few getting to court. Those that do have a seven per cent conviction rate.

Our courts must hold two things in tension: allegations of serious crime should be taken seriously and dealt with effectively, but the presumption of innocence is the bedrock of our legal system.

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So how do we ever satisfactorily resolve cases (like the Lehrmann matter) where there is no contemporaneous reporting, no corroborating evidence and no witnesses?

Brittany Higgins’ experience over the past year will do absolutely nothing to reassure victims that it is safe to come forward and report their allegations. She appears to have been destroyed by her experience.

Bruce Lehrmann, like everyone else, was entitled to the presumption of innocence but the case’s fatal flaw was always the rush on all sides to publicise and politicise the allegations ahead of due process.

Our legal system requires guilty findings in criminal matters to be beyond reasonable doubt. It’s unsafe to convict people – or acquit them – on instinct or emotion.

But that same system is also predicated on laws made when there was little recognition of assault within relationships and rape was mostly categorised as a violent attack by a stranger. We now (mostly) understand that sexual assault can happen anywhere and victims don’t conform to a pre-determined set of behaviours after the fact.

It begs the question of whether our courts are the right places to try these crimes, in an adversarial system where both accused and victim are picked to pieces and the consequences are epic.

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MLA Dr Marisa Paterson has suggested a sexual assault court, similar to the specialised drug and alcohol court and the family court. Matters would be heard by judges and legal practitioners specially trained in the dynamics of sexual violence, coupled with an understanding of appropriately questioning ‘vulnerable witnesses’, and an expedited court hearings list to ensure cases don’t drag on for years.

It’s a recommendation that dates from the Listen. Take Action to Prevent, Believe and Heal report from 2021 and more recently in the Sofronoff Report from the Board of Inquiry into the ACT’s criminal justice agencies (with its own flaws and dramas).

There is merit in changing our approach. Fairer, faster justice in matters of deep personal consequence is a good aim, as is less trauma and more care for everyone concerned.

Police and lawyers must act with impartiality and concern for personal dignity. They must make it safe to report crimes and safe to pursue matters through the courts.

But above all, beyond anything, let’s respect due process, fair trials and the presumption of innocence. And if a crime is alleged, go to the police first, not the media.

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Ah, the progressive ACT Law Court System – you commit a heinous crime, out the revolving door you go, ready for the next appearance

If anything the Brittany trial showed that giving false evidence and following general trial procedures the guy is seen as guilty no matter what.
“He’s guilty because he didn’t take the stand.”
When its standard for the accused not to give further evidence at trial.

There was systematic oppression of the defence in such cases and the alleged victim gets unlimited support.

Family court exists as neither side as the two parties are against each other and neither has to prove the wrong doing of the other.

“specially trained in the dynamics” is just code name for bias. To explain away the facts of inconsistent evidence they are blamed on abuse trauma rather than unreliability of the evidence.

Why is the government not looking at what other trials the DDP was involved in that has caused a miscarriage of due process? Instead you are asking for more corruption to get a higher rate of convictions.

I don’t think I’m being unduly cynical when I suggest that the feminist drive to have “sexual assault courts”, which Genevieve Jacobs so naively supports, is motivated by a determination to have special tribunals where a reverse onus of proof will apply, and an accused male will be treated as “guilty until proven innocent”, or “guilty even if proven innocent”. (Think of how the jury in Cardinal Pell’s trial was presented with irrefutable evidence that the Cardinal could not possibly have done as alleged without violating the physical laws of space and time, yet it decided that he should nonetheless be deemed guilty.) It can be anticipated that in the envisaged sexual assault courts, types of exculpatory evidence which in all other kinds of criminal cases are recognised as relevant to the question of guilt or innocence will be banned from being presented to juries. (Indeed, suspicions have been voiced, for instance in The Australian this week by a legally highly qualified columnist, that this might actually have happened in the Lehrmann trial.) Undoubtedly juries in the sexual assault courts will routinely be told that contradictions, inconsistencies and impossibilities in a genuine assault victim’s testimony can be the result of trauma, and that they might therefore reasonably regard such features of accusers’ testimonies in the cases before them as enhancing rather than diminishing the accusers’ credibility. (In the Pell case, the High Court scathingly rebuked the Victorian Appeals Court for suggesting precisely that when considering anomalies in the testimony of Pell’s accuser.)

I am not, of course, suggesting that Ms Jacobs, incontestably a talented journalist, has nefarious motives for wanting sexual-assault courts. She does, after all, acknowledge that “the presumption of innocence is the bedrock of our legal system”, and call for respect for “due process, fair trials and the presumption of innocence”. However, we all know that “the road to hell is paved with good intentions”; and when established court-systems become perverted, or designedly perverted new courts are instituted, it is not journalists, or judges, or unreliable accusers, who are at risk of hellish injustice, but persons falsely accused.

@Colin Jory
I find it interesting that you open your comment with “I don’t think I’m being unduly cynical …” and then proceed to “pen” a very cynical comment laden with unsubstantiated inferences regarding the treatment of potential defendants and the perversion of the court system. You cite two very badly handled cases, both of which may have had different outcomes had the Sexual Assault Court proposed by Dr Paterson existed.

I cannot see an issue with constituting a special court where cases of this nature “… would be heard by judges and legal practitioners specially trained in the dynamics of sexual violence, coupled with an understanding of appropriately questioning ‘vulnerable witnesses’, and an expedited court hearings list to ensure cases don’t drag on for years”.

One would expect (hope?) that those who specialise will be less likely to be swayed to dismiss exculpatory evidence purely on the basis of a “cleverly framed argument” from counsel designed to obfuscate rather than illuminate.

It certainly couldn’t be worse than what happened from both sides in the Lehrmann case.

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