High-profile cases such as the Bruce Lehrmann trial highlights how problematic sexual assault trials in the 21st century are.

Our criminal justice system is world-class when it comes to dealing with traditional serious criminal charges such as murder. Murder trials usually offer the jury plenty of evidence upon which to base their decision; the weapon, physical injuries, eyewitnesses, a history of disagreement between the accused and the complainant.

Bruce Lehrmann (centre) leaving court in Canberra on Tuesday.Credit:Alex Ellinghausen

In contrast, there is usually no weapon, no physical injuries, no eyewitnesses and in most cases a prior relationship between the accused and the complainant. Sexual assault trials often boil down to “one person’s word against the other”. When the test is whether a criminal charge has been proven “beyond reasonable doubt”, it is understandable how jurors struggle with their task.

Added to the juries’ difficult task, is the wrongful influence of sexual assault myths and misconceptions in the community. Myths reflect views about how the world works, and what typical behaviour is. These views are false and are contradicted by research. For example, there is a perception that if a complainant delays in reporting a rape they have an ulterior motive for bringing the complaint.

However, delay is common. The Royal Commission into Child Sexual Abuse research found that it took on average 22 years for survivors of child abuse to come forward. Research also tells us that complainants seldom lie and yet it is not uncommon to question their reliability as they “might be trying to hide something”. Complainants being drunk or flirtatious are wrongly perceived as reasons not to accept the complainant’s evidence.

Judge-only trials do not solve the problems facing jurors in sexual assault trials. A NSW judge, in the 2017 trial of the alleged rape of Saxon Mullins by Luke Lazarus, fell prey to sexual assault myths. The judge relied upon erroneous but common sexual assault myths that genuine complainants of sexual assault will say “stop” or “no” and will attempt to escape or fight back. The fact is that many complainants will freeze or be too scared to say no or fight back.

Judge-only trials do not solve the problems facing jurors in sexual assault trials.

Justice only works if complainants feel that they can come forward. Currently, complainants are not comfortable in reporting to police sexual assaults. Rather than face a process that systematically traumatises them again, complainants are choosing to go online or directly to the media to obtain some sense of justice.

In one sense, the criminal justice system now faces new competition from online justice in their quest to reform sexual assault trials. Online sharing offers complainants social recognition, validation and access to an online community of support. Reform is needed to ensure that complainants feel that they get recognition, validation and support from their justice system. Australian courts have acknowledged this problem.

As I argued in my article #LetHerSpeak in the most recent Monash University Law Review , traditional law reform is underpinned by a system that is influenced by centuries of patriarchal notions of justice. Sexual assault is a predominantly gendered crime and policies such as being “tough on crime” aimed at improving access to justice for sexual assault complainants have been ineffective. Persistently low reporting, prosecution, conviction and incarceration rates highlight that applying traditional law reform to sexual assault has not reaped the benefits that the law reformers were hoping to achieve.

Low reporting, conviction and incarceration rates highlight that changes made to reforming the handling of sexual assault cases have been ineffective.Credit:iStock

The Victorian Law Reform Commission acknowledged that there is a need for wider cultural change where “complainant-centred thinking and practice” is part of the framework. The Victorian Director of Public Prosecutions rightly observed that there has been “considerable cultural change in the way the legal profession interacts with complainants”.

For example, to ameliorate the trauma of being in the public courtroom, complainants can now give their evidence remotely with a support dog at their feet. The new affirmative consent laws are a game changer. The extensive attempts at law reform in jurisdictions such as Victoria shows that governments, courts and law reformers are eager to fix the complainant access to justice problem.

Involving complainant advocates in law reform initiatives, offers a novel approach to a vexed issue that has not responded to traditional reform. This new approach to law reform promotes a conversation and collaboration between historically silent sexual assault complainants and legal institutions.

In doing so, the legal system is acknowledging that complainants play a vital role in securing community safety and justice. The more the legal system treats complainants as genuine participants in the criminal justice system (rather than as mere witnesses for the prosecution), the more likely the complainants will be willing to engage in a system that has historically forced complainants “to stay hidden in the shadows”, to quote Grace Tame.

Jacqueline Horan is an associate professor at Monash University’s Faculty of Law and a member of the Victorian Bar

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