We have a problem with sexual assault convictions, but it’s not what you think

Warning: this story contains graphic content

There is a dangerous backlash emerging against the prosecution of sexual assaults, which runs counter to everything we know about violence against women and which should be called out for what it is – misogyny and outdated attitudes masquerading as concern for the principles of justice.

Last Wednesday saw the overturning on appeal of the sexual assault convictions of rugby league star Jarryd Hayne. The former NRL player has faced three trials over his 2018 sexual encounter with a then-26-year-old woman in her Newcastle home on the night of the National Rugby League grand final.

Jarryd Hayne leaves prison on Wednesday. Credit: SMH

Hayne, who vehemently denies the rape allegation, drew blood from the woman’s vulva during oral and digital sex that he said was consensual, but she said wasn’t. As in most alleged sexual assaults, there were no witnesses, there was a dispute over consent, and the complainant behaved in the aftermath in ways that might seem counterintuitive. As in most alleged sexual assaults, the complainant and the accused knew each other, at least a little – they had been chatting on social media before meeting in person.

Hayne walked free from prison on Wednesday, on bail pending a possible fourth trial.

One of the news reports focused on whether he would keep his Dally M medals (he will). 2GB broadcaster Ray Hadley said, “enough is enough”, noting that Hayne had “lost all his wealth” defending himself. Multiple articles spoke of Hayne’s “six-year ordeal”.

It is always interesting to note how much the coverage of sexual assault trials, particularly those involving high-profile men, focuses on the suffering of the accused. Hayne has had his convictions quashed and is entitled, once again, to the presumption of innocence. No doubt it must be horrific to be the subject of a wrongful verdict. But I worry that the quashing of the verdict will be used as further ammunition by those who claim men are being wrongfully tried for sexual assault and that adherents of the #metoo movement are now running the justice system.

In April, the Saturday Telegraph reported comments by the former crown prosecutor-turned-defence-barrister who represented Hayne. She said the state used to prosecute more “shocking” cases of rape. “In the past, the majority of cases involved strangers, physical violence, or both,” she said. “Now, the majority of cases involve situations between people who are not strangers and where the complainant and the accused are in a private situation by mutual agreement.”

There are probably many people, including plenty reading this column, who agree. There is a widespread misconception that “real” rape involves an attack by a stranger in a darkened park. The victim of such an attack is indubitably innocent and may even have injuries that will help bolster “her” case. But the law says that sexual assault involves just three elements – a sexual act, a lack of consent to that act, and proof of the accused’s knowledge of that lack of consent (this takes in accused persons who were “reckless” as to consent, and who had no “reasonable grounds” to believe there was consent).

Recent legislative amendments regarding affirmative consent put the onus on the individual to ensure consent is present and maintained throughout sex. The law says nothing about the facts being “shocking” (shocking to whom?), and it says nothing about the parties’ acquaintance with each other before the alleged assault. It does not require a victim to forcibly protest the assault.

Recently, we have had yet another reckoning with the epidemic of violence against women in this country. We now openly acknowledge that women are most at risk of violence from the men closest to them. Are we to believe that violence against women stops at the threshold of sex?

We accept the reason why many women don’t “just leave” is because they are frightened to or because they have been emotionally manipulated into thinking what is happening is normal and/or their own fault.

It beggars belief that, as a society, we still refuse to concede that sexual violence is also usually perpetrated by acquaintances, friends and lovers. And that victims may not protest, or they may “keep up appearances” following an assault, or take a long time to admit to themselves, let alone others, the reality of what happened to them.

Rare is the case of domestic violence or abuse that doesn’t have a sexual element – on the contrary, sexual coercion is often the best way for an abusive man to impose his control.

In recent months, several NSW District Court judges have criticised the state’s Director of Public Prosecutions, Sally Dowling (and/or her office), for putting to trial sexual assault matters that they said had no reasonable prospect of conviction. Each matter had uniquely complex facts too involved to describe in this column, but suffice to say they shared elements of how sexual assault usually plays out, as opposed to the filmic, attacker-in-the-shadows scenario, which is truly rare.

They involved some combination of alcohol, blurred consent, an extremely vulnerable complainant, and disputed facts. All of them were extraordinarily difficult to prosecute successfully.

Crossfire criticism of state prosecutors from the judicial bench is newsworthy, and perhaps the judges’ critiques were just. But let’s not allow these critiques and the gleeful media reporting of them to obscure a glaring fact that bad-faith actors will never acknowledge. That is, sexual assault has incredibly low rates of prosecution, conviction and custodial sentencing.

I will quote NSW statistics, only because the NSW Bureau of Crime Statistics and Research recently put out a briefing paper on precisely this topic. It found that of the 5869 sexual assaults reported to the police in 2018 (and finalised in court before January 2023), 15 per cent resulted in charges being laid, 7 per cent were proven in court, and 5 per cent resulted in a custodial sentence.

“The low conviction rate … shows no sign of abating and may have become slightly worse in the past decade as sexual assault reports have dramatically increased,” the report concluded.

That means there are either a lot of false complaints or a lot of sexual assaults going unpunished.

Take your pick.

Jacqueline Maley is a senior writer and columnist.

Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800RESPECT (1800 737 732).