A recent New South Wales study has found that sex offence trials in the state still unduly focus on the actions of the survivor (including consent) rather than focusing on the behaviour of the accused, creating an environment that can lead to survivors feeling like they are the ones on trial.

Commissioned by the NSW Department of Communities and Justice through the NSW Bureau of Crime Statistics and Research, researchers analysed 75 sexual offence trial transcripts finalised in the District Court in NSW between 2014 and 2020 for the study. The largest analysis of sexual offense trial transcripts in the state in 27 years.

The findings reveal that although many of the procedural reforms that started in the 1980s to improve the experiences of survivors in court were working, prosecutors and defence lawyers are still relying on stereotypes and rape myths in sexual offence trials.

In an interview with The Guardian, Professor Julia Quilter, University of Wollongong law expert and co-author of the report, outlined some of the expectations that complainants found particularly distressing in the process.

“The expectation for people to conform to [the idea of] a ‘true’ victim, that they will immediately make a complaint, that they will do their utmost to tell their story no matter the audience and in exactly the same fashion on each occasion,” said Professor Quilter.

Many of these expectations have been previously debunked including that victims will immediately make a report after their assault. In a 2020 report titled Misconceptions of sexual crimes against adult victims: Barriers to justice released by the Australian Government it was revealed that, “83 percent of Australian women did not report their most recent incident of sexual assault to the police (Australian Bureau of Statistics (ABS) 2013; Cox 2016), and only six in 10 women who experienced sexual assault sought advice or help from others (ABS 2013).”

That same report outlines that studies estimate approximately 5% of sexual crime allegations are false (Kelly, Lovett & Regan 2005; Lisak et al. 2010). And that of that small number “motives are complex and stem from fear, or a need for assistance, rather than malice (Spohn, White & Tellis 2014; Wall & Tarczon 2013).”

Despite this well reported statistic, the NSW study unearthed that in 75% of the analysed cases, complainants were accused of lying or fabricating the assault for an ulterior motive. It also revealed that more than 53% of the complainants were cross examined for failing to verbally communicate non-consent or physically resist, while 75% were cross examined for having an incomplete or inconsistent memory of the events in the lead up to their assault.

Complainants who were intoxicated at the time of the alleged offence were suggested to be unreliable or having given consent while under the influence, and in some trials the defense was permitted to probe into the complainant’s credibility with questions about their past flirtatious behaviour, substance abuse or mental health status. All with the aim of making the survivor seem less reliable or trustworthy.

The conversation around the treatment of sexual assault survivors in the justice system has been sparked again following the leak of Walter Sofronoff KC’s inquiry into the investigation and prosecution of Bruce Lehrmann for the alleged rape of Brittany Higgins at Parliament House.

One of the main findings of the inquiry was that ACT police were incorrect in their judgement that there was insufficient evidence to bring the case to trial.

It’s a story that has sadly already been told in the media through a 2020 ABC News data investigation of nearly every sexual assault reported to police in Australia between 2008 and 2017 (minus NT who didn’t supply their data).

The data deep dive revealed that of the 140,000 sexual assaults reported to police in those 10 years, police rejected nearly 12,000 on the basis that they did not believe a sexual assault occurred. The exact figure could not be calculated because official crime statistics exclude these reports, and NT Police refused to provide any data to ABC News.

However, figures from the rest of the country suggest that a staggering one in 12 sexual assault reports are deemed “unfounded”, with that number rising to one in four in some regions (South Australia is one example).

Of those 140,000 investigations, police “cleared or resolved more than 34,000 or 25 per cent of sexual assault investigations without making an arrest or taking other legal action.”

This amounts to an ongoing need for evolving reforms to improve the experience of sexual violence victim-survivors in the criminal justice system, as well as changes to soceital understanding of these crimes.

“There is scope to do more to improve the experience for complainants, so that stereotypes and narratives that are out of step with contemporary values no longer feature in sexual offence trials,” Quilter said in an interview with the Guardian.

In the NSW research conducted by Quilter and Professor Luke McNamara, a recommendation is made for prosecutors and defence to alter their strategies. This entails diminishing the dependence on “rape myths” and focusing on consent as a voluntary agreement.

The study also proposes that the admission of evidence concerning the complainant’s character and conduct should be subject to tighter restrictions and suggests the implementation of ground rule hearings for all trials related to sexual offenses.