Why do so few sexual assaults result in convictions?
In November The Drum dedicated two episodes to the appallingly low rates of sexual assault convictions in Australia. Currently, 1 in 10 reported cases of sexual assault results in a conviction. Legal experts say lack of evidence and eyewitnesses means it's harder to prove than other crimes. Survivors say the system is stacked against them, with their cases hampered by constant court delays and prejudiced attitudes around what a "perfect" victim looks like. What's more, they say they're constantly re-traumatised by a "barbaric" system of cross-examination.
Many victims will never even make it to the police station and this is particularly true for Indigenous women, according to human rights lawyer and academic Dr Hannah McGlade. On The Drum she stated: “Aboriginal women may not report for multiple reasons, including fear of the perpetrator, fear of being in a small community and lack of faith in the police." She also noted that research indicates that often when Aboriginal victims come forward they are simply not believed and there is no response.
Not all reports will be referred to the DPP to proceed to court. Lack of "useful evidence" for a prosecution is a major factor. According to Mr Cowdery, director of the NSW Department of Public Prosecutions until 2011, “Police know they need to develop a strong case for it to go forward for prosecution. They might be looking for confirmatory evidence, for corroborative evidence, and unable to find it and they might decide that it's not worth referring it to the Director of Public Prosecutions."
Sexual assault cases often take months or even years to reach a verdict. Defence barrister John Desmond says barristers do not deliberately prolong the process but there can be delays: "Defence barristers may deliberately seek an adjournment so they are confident that the defence case has been thoroughly and properly prepared.”
Lawyer and sexual assault survivor, Bri Lee says "The longer the delay, the more likely the complainant is to drop off and barristers and defence teams know that. It's in their interests to delay things as much as possible." Furthermore, Lee argues, “The way we currently allow defence barristers to cross-examine complainants is barbaric and inhumane. There are no caps on how many hours cross-examination might go on for. To be called a liar, to have your credibility and character decimated ... it is so horrific as well as that being the moment you have to recount what was done to you."
Hannah McGlade says cross-examination is particularly damaging for indigenous women: "The Heroines of Fortitude study in NSW showed cross-examination was much longer for Aboriginal victims," she says. "The questions were focused on alcohol and criminal injury compensation, so more derogatory stereotyping of the victim, less likely to result in a guilty finding."
Mr Desmond defends the right to cross-examine and "confront" complainants: "It's not for the defence barrister to judge his client, the barrister's instructions are 'It did not happen'." However, he accepts that some barristers can go overboard, with cross-examinations commonly taking multiple hours or even days. He is of the view that two hours would be more than enough to cross-examine, unless there are exceptional circumstances.
Mr Cowdery says there are already restrictions on the kind of questioning that can be conducted. "Repetition, offensive or insulting questions, they're ruled out by the law. A judge needs to enforce it," he says.
Ms Lee agrees that judges can do more to keep cross-examination on track: "The judge has a lot of sway on how their courtroom is run. Some will not accept shouting and unnecessary levels of aggression," she says. "It can be an incredibly traumatic experience, depending on who the defendant in your matter happens to hire as a barrister and which judge you get."
Mr Cowdery says community attitudes towards sexual assault can influence how jurors determine their verdict: "If it's a jury trial, it can be influenced by some of the myths and stereotypes the jurors still have towards sexual assault victims." Mr Cowdery recommends a "process of community education about how this kind of offending actually occurs in real life and how people should view the consequences".
Reaching a verdict in sexual assault cases is difficult. "It must be proven beyond reasonable doubt and there is a presumption of innocence," says Mr Desmond. "The vast majority of these cases involve the incident happening in secret. There are no eyewitnesses, and usually there is not relevant DNA and an absence of injuries. So, it is one person's word against the accused's word — that's the difficulty complainants face." As a result, prosecutors will often negotiate a "plea deal" — where the defendant pleads guilty to a lesser offence — to bring things to a conclusion.