Australia needs trauma-informed legal change for sexual assault court hearings, a Newcastle has panel said.
Discussion between four experts from the University of Sydney, Victim Support VOCAL Hunter, the University of NSW (UNSW) and Hunter Street Chambers revealed the current adversarial system, particularly the role of juries, can re-traumatise survivors and cause incorrect witness accounts.
The panel, hosted by Newcastle Institute, said "rape myths", or ingrained and incorrect beliefs about sexual assault, remain at the forefront of jury decisions. It is unknown how many perpetrators walk free as a result.
"The types of behaviours that defense council rely on to undermine a complainants credibility are actually many of the systems of trauma that come as a result of being sexually assaulted," leading UNSW researcher Honorary Professor Annie Cossins said.
Australia, the United Kingdom and the United States are among the only countries where an adversarial system remains. In the United States, dedicated sexual assault programs have been developed.
Kerrie Thompson, chief executive of victim support unit VOCAL Hunter said issues with the current legal system begin when survivors report to the police. Some people who access the system do not contact police at all.
"There is no process police have to follow. It depends how busy they are and how their resources are at the time," Ms Thompson said. Some stations will take a report at the front desk while others may take months to contact survivors.
VOCAL have support specialists at Waratah, Belmont and Raymond Terrace police stations one day a week but said more work from police and court officials was needed to understand the complexities of sexual assault-related trauma and evidence-based trials.
"Many reports do not make it through the criminal justice process due to lack of evidence," Ms Thompson said. "Lack of evidence doesn't mean it didn't happen. It just means police can not get the evidence to meet the criminal charge."
Professor Cossins said even if evidence is obtained, juries generally want DNA or signs of injury to satisfy a guilty verdict. This kind of evidence does not work in a case where consent, rather than action, needs to be proven.
University of Sydney's Professor Catharine Lumby said the legal system needed better understanding of active consent to combat this. She believes the hearing of evidence may be impacted further by judges who do not understand nuances of sexual assault.
"We live in a gendered society and it is still [upper middle class] people who get the podium," she said. "There is a sense of entitlement and privilege. We are sill in the business of deconstructing rape myth acceptance."
Barrister Simon Harben SC has acted for both defense and prosecution in sexual assault cases. He is largely supportive of an adversarial system but said cases are often passed between prosecutors and can fall flat in front of a jury if not prepared well.
"There is no excuse," he said. "It doesn't mean the first person who picks up the case shouldn't do it properly. That should just be a given."
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Both jurors and those in the witness box may struggle to understand court proceedings which impact the outcome of cases, the panel found.
"Cross-examination questions - leading questions with complex syntax and vocabulary - significantly affect [survivors] accuracy about actual events," Professor Cossins said. [People] have been shown to change truthful evidence into inaccurate evidence when cross examined."
There were positives revealed in the discussion, including work between VOCAL and Newcastle police, who Ms Thompson said deeply care about the issue.
But panelists agreed funding across the board - including for prosecution, Legal Aid and victim support services, added to mounting issues in the current judicial system.
- If you or someone you know is impacted by family, domestic or sexual violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.
- If you are concerned about your behaviour or use of violence, you can contact the Men's Referral Service on 1300 766 491.
