The Potential Re-traumatisation on the Witness Stand
The victim’s credibility is often attacked through cross-examination and jury warnings. Barristers may be even more ruthless in their cross-examination of certain types of victims (E.G. incest survivors, partner rape). Witnesses may be asked questions that they can only answer ‘Yes’ or ‘No’ to, but which are impossible to answer in that way. Questions may be asked in a non-chronological way with the objective to confuse and make the victim appear unreliable.
Complainants may be cross-examined about a variety of issues that are designed to make them lose credibility. For example, in R v Wyper  ACTCA 59 , defence counsel used the possibility that the complainant may have caused property damage in the aftermath of the rape, to undermine the complainant’s general credibility, and argue that if she was prepared to lie about one matter related to the accused, then she may have been prepared to fabricate the complaint of sexual assault.
Further, the victim witness may be questioned about her sexual history. Such evidence continues to be allowed in through the cracks of the rape shield. Although sexual reputation’ evidence is prohibited in all jurisdictions except the Northern Territory, where it can be admitted with the court’s permission, there is ‘little guidance on distinguishing between “sexual reputation” and “sexual experience/history” (which is potentially admissible)’ in the laws of all Australian states and territories
Some of the other factors that compound the trauma of a trial for sexual assault victim witnesses, and which have resulted in much law reform, include: being able to see the accused in the courtroom; being cross-examined by a self-represented accused; the use of traumatising questions by the defence; having to give evidence multiple times; giving evidence in a court open to the public; and the length of the process.
Legislation has been enacted to better protect vulnerable witnesses from these ordeals; however, these grey-shaded laws have been susceptible to interpretation by judges and counsel. Some commentators have suggested that the ensuing discretion has limited their efficacy, and in some cases has undermined parliament’s intent.
Further, amendments intended to better protect victim witnesses from trauma induced by confusing and humiliating interrogation are often only available if the victim is deemed a ‘vulnerable’ or ‘special’ witness. Eligibility is based on prosecutorial screening of those most vulnerable to severe emotional trauma, intimidation, or distress. It is possible that mythology or invisible assumptions are at play in this process with prevailing notions of sexuality and sexual behaviour contributing to the ‘definition of “real” or “legitimate” rape and stereotypical constructions of the “good” victim.’
Overly Complex Directions
Aside from myths and lack of corroborating evidence, there are ongoing concerns with the overall complexity of the law, with rape trials generally involving ‘a multitude of directions’, as enunciated by Wood CJ in the 2002 NSW case of R v BWT (discussed in Cossins). These directions may serve as the source of appeals and also may confuse jurors.
Studies have identified room for improvement of police attitudes and understanding about sexual assault. Certainly, attrition remains high at the stage of police investigation.
Insensitivity may be evidenced by police minimising what had occurred through their choice of words in questions they ask. For example, in an interview with one woman whose ex-boyfriend was charged with ‘unlawfully confining a person’, ‘sexual intercourse without consent’, and ‘intentional threat to kill’, the police officer asked: ‘How did he come to rape you?’
After the complainant responded that he had forced her legs open, the officer asked: ‘How long did he lay on top of you in that position making love to you, fu#&ing you, whatever words you want to use … raping you?’ Such treatment by the police may have an effect on victims’ decision about whether to continue legal proceedings.
Issues with Prosecuting
When cases do proceed, prosecutors review the case to determine if there are reasonable prospects of a conviction in accordance with prosecution policy. Reforms about consent are seemingly limited in their ability to overcome the stereotypes about what prosecutors believe potential jurors subscribe to – in other words, prosecutors discontinue the matters that they believe have little chance of conviction.
Along the same vein, the complainant may ask for the matter to be discontinued because the prosecution has dissuaded her (sometimes subtly and sometimes directly) that there is little hope of a guilty verdict, or because her cross-examination at the committal hearing was prohibitively traumatic.
Additionally, if there are any differences between what the victim said to police between different interviews and/or at committal, the prosecutor may pre-empt the defence, raising these discrepancies at trial by labelling the victim as unreliable, and dropping the case. Indeed, prosecutors assess a complainant’s credibility, paying attention to such ‘inconsistency’ and evaluating the victim’s degree and manifestation of distress, as well as her ability to recall and communicate.
Risks of Law Reform
Various myths and misconceptions, particularly those relating to ‘real rape’ and false allegations, have circulated and shaped the law and legal responses in various ways. These false myths about women and men, about their relationships, sexualities, personalities, and about rape itself contribute to what is often a huge chasm between the voice of the victim and the ears of the community, and the ears of the criminal justice system.
Given that all the reform has had minimal effect, we still see women’s voices gagged, distorted, and muted in the courtroom. Which brings me to my final point or conclusion: The limits – even the potential harm of law reform. It can serve as an instrument of complacency, deluding us that things have really changed.
In fact, in many ways, rape and law reform remind me of a treadmill – the illusion that you’re getting somewhere when in fact you’re staying in one place. It is the mission of Legal Light Bulbs to improve the ordeal of rape victims’ experiences with the criminal justice system. We do this through online and face-to face violence against women training, conducting sexual assault research projects, and by offering expert reports for court providing evidence concerning the victim’s reality of consent.