Sexual offence trials have improved, but there is more to be done: new research

More than 40 years ago, law-makers began listening to sexual violence victim-survivors, advocates and activists when they explained that the traditional criminal law and criminal trial were not serving them well.

In NSW, the Crimes (Sexual Assault) Amendment Act 1981 (NSW)^[1] was the first of many statutes introduced to address the gendered biases of the law. This included the unacceptable treatment of victim-survivors when giving evidence that was characteristic of rape trials.

In 2023, on paper, the laws governing offence definitions, evidence rules and trial procedure are very different from those that operated in the 1970s. But how different are things in practice?

We were recently commissioned by the New South Wales government to conduct a study of transcripts from sexual offence trials in the District Court of NSW, as part of a larger review ^[2] of “the experiences of complainants of sexual offences in the NSW criminal justice system”.

In its 2020 report Consent in Relation to Sexual Offences^[3], the NSW Law Reform Commission emphasised the importance of follow-up research that evaluates whether the intended benefits of legislative reforms are actually being achieved.

This was a rare and important opportunity – a study of this scale based on access to trial transcripts had not been completed since the landmark Heroines of Fortitude report^[4] by the then NSW Department for Women in 1996.

In sharing our main findings here, we want to acknowledge the complainants in the sexual offence trials examined in this report. Although we never met them, their stories were at the heart of this study and their voices were present in (anonymised) quotes from transcripts that feature in the full report^[5] that was recently published by the NSW Bureau of Crime Statistics and Research.

Read more: I'm a sexual assault counsellor. Here's why it's so hard for survivors to come forward, and what happens when they do^[6]

The study

We examined more than 30,000 pages of transcripts from 75 sexual offence trials finalised in the District Court of NSW between 2014 and 2020. Our primary aim was to assess the adequacy of existing arrangements for meeting the legitimate needs and expectations of complainants.

Our findings can roughly be divided into two categories: aspects of trials that have changed for the better, and those that have not (yet) been reformed.

Improvements

We found that procedural reforms designed to improve complainant experience in sexual offence trials were generally operating as intended. This included arrangements such as allowing complainants to give evidence via CCTV from a remote location. Not all complainants want to give evidence in this way (some choose to appear in person in the courtroom), but it is an important measure to reduce the distress of being a witness and ensure witnesses don’t have to be in the same room as the person whom they have accused of sexual violence.

We also saw that complainants regularly had access to a support person, and, with a few exceptions, judges ensured the court was closed to members of the public when the complainant was giving evidence.

In addition, most of the time, judges and lawyers adopted respectful modes of communication with the complainant, and were sensitive to the need for breaks when the complainant was distressed or tired.

“Rape shield” laws^[7] contained in the Criminal Procedure Act 1986 (NSW) – which are designed to prohibit questions about sexual “reputation” and regulate questions about sexual experience – were generally operating as intended.

Against the backdrop of criticism that these rules are too restrictive, we note that some form of sexual experience questioning was permitted in 50% of trials in this study.

Read more: Four in ten Australians think women lie about being victims of sexual assault^[8]

Trial features that persist

Rape myths and stereotypes were still very prominent in the sexual offence trials we examined. Many of the trials in this study were conducted in a way that was framed by a set of unwritten (and problematic) rules about what a “real rape” looks like and how a “genuine” victim of sexual violence would behave.

Importantly, this wasn’t just a result of how defence lawyers cross-examined the complainant – the prosecution case was also often built on the foundation of one or more “real rape” attributes.

For example, the Crown case often emphasised that the complainant physically resisted the attack, or that the complainant reported the matter immediately –-despite the fact that these are no longer required to sustain an allegation.

The defence often played the other side of the “real rape” coin, highlighting the absence of features traditionally associated with a “genuine” allegation.

Questioning and closing submissions that accused the complainant of lying were common. In 73% of trials, the complainant was accused of fabricating the sexual offence allegation for an ulterior purpose (for example, in one case, to extract compensation to be used for cosmetic surgery).

Defence counsel were permitted to ask questions across a broad range of topics. These included distressing matters such as the complainant’s history of mental illness, substance use, criminal convictions or having had children removed from their care. Questions about prior “flirtatious” behaviour were common, as were questions that suggested the complainant had failed to behave after the event in the ways that a “true” victim would.

Further reforms

Much has changed in terms of how complainants are questioned in sexual offence trials, but there is more still to do.

Our report for the NSW Bureau of Crime Statistics and Research identified a number of further reforms that warrant consideration. These include:

1. A modified approach to framing the Crown case, with a greater focus on consent as “free and voluntary agreement”, reduced reliance on “real rape” attributes, and more space for the complainant’s voice.

2. A more robust and restrictive approach to the admissibility of evidence about the complainant and their actions, including what counts as “relevant”.

3. The introduction of pre-trial “ground rules” hearings for all sexual offence trials. These should include advance determinations not only on how questions are asked, but also what topics are covered.

These measures could contribute to the long overdue removal from sexual offence trials of rape myths and stereotypes and unfair scrutiny of complainants.

References

1. ^{^} Crimes (Sexual Assault) Amendment Act 1981 (NSW) (classic.austlii.edu.au)
2. ^{^} larger review (dcj.nsw.gov.au)
3. ^{^} Consent in Relation to Sexual Offences (www.lawreform.justice.nsw.gov.au)
4. ^{^} Heroines of Fortitude report (www.vgls.vic.gov.au)
5. ^{^} full report (www.bocsar.nsw.gov.au)
6. ^{^} I'm a sexual assault counsellor. Here's why it's so hard for survivors to come forward, and what happens when they do (theconversation.com)
7. ^{^} “Rape shield” laws (legislation.nsw.gov.au)
8. ^{^} Four in ten Australians think women lie about being victims of sexual assault (theconversation.com)