Courts and injustice
A two-year study, Heroines of Fortitude: the experiences of women in court as victims of sexual assault, was released on October 30 by the NSW Department for Women. The aim of the study was to assess women's experiences in the criminal justice system as primary witnesses in sexual assault cases and to review the operation of a 15-year-old law aimed at protecting sexual assault complainants.
In the words of the head of the department, the experience for the women was "too often revictimising and abusive". Many of the report's recommendations involve educating judges to implement law which prohibits questions about a woman's sexual reputation and cross-examination designed to humiliate, insult or discredit the victims on irrelevant grounds.
The report — compiled using all 150 sound-recorded hearings in the NSW District Court between May 1994 and April 1995 — documents well the horrific problems women face in taking sexual assault charges to court. The distress involved in recounting their experience to what was commonly an open court was compounded by cross-examination attacking their credibility through "questions and themes biased in their nature and [reliant] upon stereotyped views of appropriate behaviour of women complainants of sexual assault".
In 65% of the hearings, there were on average two interruptions due to the distress of the woman involved. The interruptions from extreme distress were higher for Aboriginal women, who were over-represented amongst sexual assault victims. One trial was interrupted 12 times during the cross-examination, and other women suffered extreme difficulties in recounting their experience, including nausea and dry retching.
Defence attacks on the credibility of the women's evidence included: 52% were accused of making false accusations out of vengeance or family court matters; 59% were questioned about drinking; 57% were questioned about sexually provocative behaviour including 42% about how they were dressed and 22% about their "responsibility" for the offence; 82% were asked if they were lying; 37% were questioned about their resistance to the assault and over two-thirds about their lack of resistance. One defence counsel asked a woman, "You were struggling, you put up a bit of a fight. You would have got a few bruises from it?". When she answered, "A couple", he said, "Is that all? Couldn't have been much of a fight then?"
One common question asked of the victims' motivations was about compensation (32%). In the case of one woman with significant injuries who had run naked from the deserted car park where she was raped, across fields to the nearest house, defence counsel alleged she had fabricated the sexual assault claim for compensation. Questions about alcohol, victims' compensation and promiscuity were regularly asked to discredit Aboriginal women; the report notes that "myths and stereotypes of Aboriginal women as unsophisticated, vengeful and morally corrupt [were] also evident in the court room".
The study shows that while the laws may have changed — some as long as 15 years ago — the practice of court hearings into rape charges has a long way to go. Sexist stereotypes are still being used to deny women the justice we've been fighting for.
By Jennifer Thompson