By Lara McKirdy
Pepper Grinder is a Peppercorn series providing news and reporting relevant to ANU law students via Peppercorn’s Facebook Page and biannual Magazine.
CW: Sexual assault, violence, trauma.
On 6 March 2023, I attended In conversation: improving the treatment of sexual assault survivors in the ACT which, after two years of attending ANU College of Law (CoL) events, was held in a room of maskless attendees. This was one of the first events by the CoL that saw a return to normal since the start of the COVID-19 pandemic. There was a sense of normalcy in being present in a room of real, tangible people and not some cold, online meeting room of black screens. The female-majority audience conveyed a high level of reverence in the presence of such accomplished and impactful female lawyers. However, the lack male attendees emphasised the one-sided issue at the heart of the discussion. This will be an important year - 2023 marks the promise for significant change regarding the incidence of sexual assault which Australia has been needing to confront for decades.
The ANU Visiting Judges Program is an initiative at the ANU College of Law that provides students with ‘the opportunity to engage and interact with judges and their perspectives on working in the law’. Students read a lot about judges and rarely interact with them, so being able to ‘identify more clearly what judges do, their journeys through the profession, and the life lessons that they have brought to the practice of law and judging’ is a great opportunity for ‘empowering and inspiring’ ANU law students.
As part of the ANU Visiting Judges Program, the Hon Helen Murrell SC and former ACT Senior Prosecutor Katrina Marson took part in a discussion concerning the treatment of sexual assault survivors in the judicial system in the ACT. This discourse was especially relevant in light of a recent high-profile case, which have set the tone for 2023 as the year to reckon with the institutional and systemic failures of our justice system.
The Honourable Helen Murrell SC, the former Chief Justice of the Supreme Court of the ACT, was the first woman to be appointed Chief Justice after an illustrious career overseeing numerous courts and tribunals. Notable among these is her former role as Deputy Chairperson of the New South Wales Medical Tribunal and also first Senior Judge of the Drug Court of New South Wales. During her time as a District Judge in New South Wales, her Honour personally witnessed the low rates of sexual assault convictions, contributed to by harsh cross-examination and the consistent ‘failure’ of complainants to provide evidence that could be trusted ‘beyond reasonable doubt’.
Katrina Marson is a criminal lawyer and advocate for comprehensive sex education and for law reform surrounding sexual violence and assault. Formerly employed in the ACT DPP specialty family violence and sexual offences units, Katrina has seen first-hand the inaccessibility of the justice system for victims of sexual assault and sexual violence due to re-traumatisation. In 2018, Katrina found new purpose in her appointment as Director of the team implementing the criminal justice recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in the ACT. Memorable among the sea of recommendations was the use of investigative interviews as evidence in chief, and also improving police responses to reports of historical child sexual abuse.
Moderating the discussion was Professor Lorana Bartels, who is a Professor of Criminology in the Centre for Social Research and Methods at ANU and an Adjunct Professor at the University of Canberra and University of Tasmania.
The discussion stepped the audience through the pre-trial to trial process. The pre-trial process sees complainants who are new to the prosecutorial process attempt to navigate a labyrinth of a system. Saying such an experience is difficult would be an understatement. Furthermore, 1 out of 10 sexual assaults are reported, and approximately 10% of those reported result in convictions.
While the engagement of prosecutors in familiarising the complainant with the legal system is adequate, policy should be enacted to ensure all prosecutors have adequate contact with complainants not only pre-trial but also post-trial to better understand the complainant’s court experience and to establish measures to better that experience. The practice of prosecutors should also enhance focus on managing complainant expectations considering the extremely low rates of prosecution. This could be executed in a way that prepares complainants for a long process that may cause re-traumatisation by communicating the broad purpose of the justice system. That is, to rehabilitate those guilty of criminal offences justly and in proportion to the offence committed.
Coming to the trial process, there was an emphasis on using the recorded interview of the complainant as evidence-in-chief. The idea behind this recommendation is that it replaces the complainant from having to again recall the events of their traumatic experience thereby avoiding re-traumatisation in that instance. As you may recall, this idea was a standout recommendation of the most recent Royal Commission into Institutional Responses to Child Sexual Abuse in the ACT. While special measures are already in place during the trial process to prevent re-traumatisation, such as the giving of evidence by the complainant from a separate room, it was argued that more radical improvements are necessary, notably moving the complainant’s cross-examination to earlier in the trial process. However, it remains to be seen exactly how the fundamental succession of trial proceedings can be altered.
It was agreed that the cross-examination of the complainant was the most common issue in trials where the jury could not be satisfied on the evidence ‘beyond reasonable doubt’. It was said here that the nature of the defence counsel’s questioning has long been to blame. While the culture of cross-examination has since imposed responsibility on defence barristers to ask responsible and applicable questions to not humiliate the witness, it was noted that barristers often do not fulfil this responsibility and rely on the judge to intervene in the line of questioning to prevent further distress to the witness.
While this discussion did not explore the effectiveness of sexual assault laws in determining fault, it is especially relevant in light of the implementation of affirmative consent laws in New South Wales on 1 June 2022, as well as the passing of affirmative consent laws in the ACT in November 2022 which are yet to come into effect. Of course, I have to pay homage to my home state of Queensland, which passed legislation criminalising “stealthing” in November 2022 - although this has yet to come into effect. This multi-state adoption of affirmative consent models instigated the Senate to refer an inquiry into the current proposed sexual consent laws in Australia to the Legal and Constitutional Affairs References Committee with findings due 30 June 2023. Stay tuned for Issue 2 coming next semester.
The STOP Campaign, a Canberra-based organisation working toward tertiary communities free of sexual violence, supports the ACT consent law reforms as a positive step toward preventing sexual violence by improving the reporting rates of sexual assaults and also conviction rates. The main objective of these reforms are better outcomes for survivors in our justice system. However, given that a key part of the Senate inquiry is investigating the operation of consent laws in different jurisdictions where they apply, concern has been expressed by some legal experts that the consent laws will not impact conviction rates. Like Katrina Marson, the same experts emphasise that reforming societal attitudes in respect of misconceptions about consent and sexual assault through comprehensive sex education may be more likely to have a greater impact on mitigating sexual assault and sexual violence in combination with affirmative consent laws.
2023 is not only a return to normal, but an opportunity for change. The systemic issues in our justice system that affect victims and survivors of sexual assault and sexual violence are pervasive and at long last must be addressed. Too many lives have been ruined, and too many voices have been drowned out by archaic trial processes and a legal system that has false notions of vulnerability and trauma tied to truth and fact. Something has to be done. 2023 is the year to confront the justice system.
Footnotes  Jehanne Teo, “In Conversation: Improving the Treatment of Sexual Assault Survivors,” ANU College of Law (The Australian National University, March 3, 2023), https://law.anu.edu.au/event/conversation/conversation-improving-treatment-sexual-assault-survivors. ANU College of Law, “Anu College of Law Visiting Judges Program,” ANU College of Law (The Australian National University, January 1, 1970), https://law.anu.edu.au/visiting-judges-program..  Ibid.  Christopher Knaus, “Bruce Lehrmann Retrial: Act Government Seeking to Urgently Reform Video Evidence Loophole,” The Guardian (Guardian News and Media, November 17, 2022), https://www.theguardian.com/australia-news/2022/nov/17/bruce-lehrmann-retrial-act-government-seeking-to-urgently-reform-video-evidence-loophole.  Rachel Riga, “Stealthing to Attract Maximum of Life in Prison under New Laws to Be Introduced next Year,” ABC News (ABC News, November 23, 2022), https://www.abc.net.au/news/2022-11-23/qld-rape-sexual-assault-stealthing-now-illegal-under-new-laws/101629352.  Dominic Giannini, “Sexual Consent Laws Go under Spotlight,” The Canberra Times (The Canberra Times, November 29, 2022), https://www.canberratimes.com.au/story/8000925/sexual-consent-laws-go-under-spotlight/.
ANU College of Law. “Anu College of Law Visiting Judges Program.” ANU College of Law. The Australian National University, January 1, 2023. https://law.anu.edu.au/visiting-judges-program.
Giannini, D. (2022) Sexual consent laws go under spotlight, The Canberra Times. The Canberra Times. Available at: https://www.canberratimes.com.au/story/8000925/sexual-consent-laws-go-under-spotlight/.
Knaus, Christopher. “Bruce Lehrmann Retrial: Act Government Seeking to Urgently Reform Video Evidence Loophole.” The Guardian. Guardian News and Media, November 17, 2022. https://www.theguardian.com/australia-news/2022/nov/17/bruce-lehrmann-retrial-act-government-seeking-to-urgently-reform-video-evidence-loophole.
Radford, A. and Roy, T. (2022) The act has just passed laws changing its definition of consent, ABC News. ABC News. Available at: https://www.abc.net.au/news/2022-05-05/act-passes-affirmative-consent-laws-territory-in-line-with-nsw/101040154.
Riga, R. (2022) Stealthing to attract maximum of life in prison under new laws to be introduced next year, ABC News. ABC News. Available at: https://www.abc.net.au/news/2022-11-23/qld-rape-sexual-assault-stealthing-now-illegal-under-new-laws/101629352.
Senate Standing Committee on Legal and Constitutional Affairs, P.of A. (2023) Discussion Paper, Home – Parliament of Australia. Available at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/sexualcontentlaws/Discussion_paper.
Teo, Jehanne. “In Conversation: Improving the Treatment of Sexual Assault Survivors.” ANU College of Law. The Australian National University, March 3, 2023. https://law.anu.edu.au/event/conversation/conversation-improving-treatment-sexual-assault-survivors.
The STOP Campaign, - (2023) Sexual violence activism, The STOP Campaign. Available at: https://www.thestopcampaign.org.au/.