It is well known that women in particular and small boys are liable to be untruthful and invent stories.
– Justice Sutcliffe, Old Bailey, 8 April 1976
Comedian Louis CK has a piece of standup where he says, for women, the greatest risk to their health and safety is men. He likens going home with a man as potentially dangerous as going home with a wild bear: ‘I hope this one’s nice,’ he says wryly, as he mimes hopping into a cab.
It remains a wearing truth that women are expected to exercise constant vigilance against the potential threat some men pose. It is almost laughable how ridiculous the vigilance required is. Almost.
The other truth this riff portrays is that when women are abused or assaulted, it is considered a reflection of our actions: the onus is nearly always placed on women. While this blame is a harrowing burden, among the far-reaching ramifications of this attitude are the way victims/survivors of sexual violence experience court process and procedure.
Of course caution must be exercised when it comes to conviction and reparations, but within the Australian legal system there is no justice for victims of sexual violence. The recent quashing of a woman’s case against serial rapist Adrian Bayley provides an example of how insignificant womens’ voices around sexual violence are.
Bayley raped and killed Jill Meagher in 2012. By the time he took her life, he already had a past cluttered with convictions and violence against women. Earlier this year The Age reported Judge Ian Gray called Bayley a man with a ‘long and disturbing history of violent and sexual offences’, noting that Bayley has previous convictions for rape which date back to 1990. By 2001, Bayley had been charged with 16 counts of rape and sentenced to 11 years in prison with an eight-year non-parole period.
In February 2010, prior to being released, Corrections Victoria had assessed Bayley twice finding him to have a ‘high’ risk of sexual reoffending. Their concerns proved horrifically justified: Bayley was on bail when he murdered Jill Meagher.
Another person, who the media identified as a sex worker, came forward and identified Bayley as the man who had raped her when she in 2000. She had recognised Bayley after his image was plastered over social media.
‘I always thought I’d find him one day and that’s him 100 per cent,’ she told the jury. ‘As soon as I seen his face it brought it all back. I still have nightmares. You never forget the face of someone who gave you so much terror. You remember that forever.’
The Court of Appeal disagreed, recently overturning Bayley’s conviction for that rape because the ‘identification evidence risked unfair prejudice’.
The sting of these official words and their meaning is dumbfounding, forcing one to revert to childlike repetitions of why? Why? Does the woman who accused Bayley have a reputation for lying? Did she fancy having her memories and experience of sexual assault picked apart and scrutinised just for kicks? And what about Bayley, who had a history of rape and violence, who had already been convicted of these crimes multiple times?
Sexual assault has some of the highest rates of acquittal compared to other offences; more than 70 per cent of incidents are not reported and only an estimated one in 10 reported assaults result in a guilty finding.
It is little wonder that multiple researchers and academics have dubbed the court process ‘the second rape’ or ‘secondary victimisation’.
In 2007, The Australian Institute of Criminology released the paper Juror attitudes and biases in sexual assault cases. Researchers had analysed different factors that ‘worked against the complainant’, such as:
- the complainant flirted and danced with the defendant
- the complainant composed herself and pretended nothing had happened
- she continued to work with the defendant for two weeks after the incident, etc
The paper’s concluding statements suggest that jurors are not capable of making objective judgments about consent based on facts presented in court. Instead, the paper found, ‘jurors actively interpret what they see and hear, based on their own knowledge, experiences, attitudes, biases and expectations’. The researchers noted that judges’ attitudes and biases towards victims also played a significant part on influencing jurors’ feelings and actions within the courtroom.
Back in 1993, Personal Safety Coordinator at La Trobe University Donna Stuart published the paper No Real Harm Done: Sexual Assault and the Criminal Justice System, where she explored how the court system renders victims of sexual violence powerless.
The paper opens with a quote from Kate Gilmore of the Real Rape Law Coalition:
Unlike the victim, everyone, including the accused, is entitled to remain present throughout the hearing … unlike the victim, the accused along with the rest of the crowd is entitled to hear the forensic medical evidence, the description of genitalia, the markings on nipples, the colour and size of bruises on buttocks, the presence or absence of semen on legs or in the mouth, the finding of the internal gynaecological examination … unlike the victim, they can hear about the presence or the absence of loosened pubic hair, of flakes of skin under fingernails, of sexually transmitted diseases … unlike the victim, they are entitled to hear the doctor’s impression of the victim’s state of mind …
The paper reveals that 38 per cent of surveyed victims whose case went to court would not report an assault or go to court again, if given the choice. They would also advise other victims not to go through the legal process.
The reasons for this included the way victims are often made to feel criminalised, the graphic and explicit detail they must relate about their sexual assault, and the trial itself which Stuart describes as ‘a gruelling test of the victim/survivor’s credibility, where the honesty and integrity of the parties are pitted in a legal struggle weighted overwhelmingly in favour of the accused’.
Because the victim is ‘a witness for the prosecution’, she will have to testify and submit to cross-examination. The accused, on the other hand, will have the right to remain silent, so will most likely not testify in court, give unsworn evidence, or take the witness standard to undergo cross-examination.
The woman who accused murderer and serial rapist Adrian Bayley was willing to go through this process. Because she is a sex worker, many people’s perceptions and attitudes about her, including that of legal practitioners, will have been already formed. Because of Bayley’s notoriety, her story (granted, with name suppression) appeared across the media and social media for all of Australia to judge.
Consider what that means.
Jane Green from Vixen Collective, Victoria’s peer-only sex worker organization, released a statement in response saying that because sex work was simply regulated in Victoria (rather than decriminalised), some sentencing judges appeared to view rape against sex workers as a lesser offence.
Consider what that means.
Green added that the Bayley court decision had come just months after a Melbourne real estate agent was cleared of raping and imprisoning a sex worker in a vacant house.
Consider what that means.
Every individual should be protected from sexual abuse, whether she ‘composed herself and pretended nothing had happened’ or ‘continued to work with the defendant for two weeks after the incident’ or ‘flirted and danced with the defendant’, or if she was drunk, sober, out late, on a date or if she was a sex worker.
‘The ethics of defence’, Catriona MacLennan (Overland 219)
‘Get your hands off my sister’, Stephanie Convery (Overland 222)