For three years, I tried to navigate a system where sex crimes have been effectively decriminalised

Last May, my court case for historical sex abuse, which I experienced as a teenager, was finalised after a three-year journey through the justice system.

Historical cases are known to be drawn out, but on the flipside, being older, white, educated and with a strong support network, my experience should have been far gentler and easier than it is for most.

The Australian Law Reform Commission’s report found “the justice system is failing to meet the twin goals of access to justice and accountability”.Credit: Marija Ercegovac

That’s a concern because I found the process harrowing. The justice system is not a place I would recommend for any victim of a sex crime.

The Australian Law Reform Commission’s report on Reforming Justice Responses to Sexual Violence was tabled in federal parliament last week. The report’s 64 recommendations aim to prevent barriers to the justice system (fewer than one in 10 victims of sex crimes report them to police) and soften the experience for those reporting (charges are laid in only about 15 per cent of reports to police – much of this attrition is because survivors leave the system after finding the process too traumatic).

Meanwhile, one in three women will be a victim of at least one sex crime throughout their lives. Yet fewer than 1 per cent of sex crimes result in a conviction.

Imagine a parallel in the medical world: a mainstream drug has less than a 1 per cent success rate treating a disease that one in three people will fall victim to. The side effects of the drug are often more debilitating than the disease itself. Of the very few sufferers who try the drug, most stop taking it early on. Finally, an inquiry finds that the drug fails in all its treatment objectives. Would we continue to pour millions of dollars into refining the drug? Or do we concede we need to look into a new form of treatment?

That is the position we find ourselves in with sex crimes. The law reform commission’s report found “the justice system is failing to meet the twin goals of access to justice and accountability”. These are massive findings. So where are the truly original and groundbreaking reforms?

Recommendations include: victims having access to a justice navigator, who would provide legal advice (victims now receive no legal advice and have no lawyers acting on their behalf in court); victims being given the option of a restorative justice pathway; trauma-informed training for those working within the sex crimes space; and unrepresented defendants no longer being allowed to cross-examine complainants.

These recommendations are all moves in the right direction, but did we really need a year-long inquiry for such no-brainers?

Sex crimes and domestic violence are not peripheral issues for the justice system. The rates of gendered violence, and the appallingly low conviction rates, paint a picture of a traumatised, disillusioned and unsafe population, and sex offenders freely walking the streets. Sex crimes have been effectively decriminalised.

One of the features of the justice system that I found most distressing lies at the heart of how the adversarial system works. The defendant’s “right to silence” means that in these cases, it is entirely upon the victim, via their testimony, to prove beyond reasonable doubt that a crime has been committed, while the accused can choose to provide no evidence at all, and refuse any questioning. Consider how difficult it is for jurors to unanimously agree beyond reasonable doubt when they hear only one side. The case will inevitably hinge upon the victim’s reliability, and the victim’s memory may have been affected by alcohol, drugs or trauma.

The job of the defence is not to provide the defendant’s “truth”, but to make the complainant appear unreliable, and they may cherry-pick details from the complainant’s diaries, private messages and counselling notes. As we saw in Bruce Lehrmann’s criminal trial, the focus was not on Lehrmann’s behaviour, but on Brittany Higgins’ because of his legal right to silence.

This process is not truth-finding. Often, it’s simply character assassination. The commission’s report admits that complainants endure a level of scrutiny and personal attack unknown in other cases, and are at “higher risk … of being retraumatised”.

Yet, the right to silence remains a sacred cow in our justice system, despite how it plays out in practice, impinging upon a victim’s right to justice. Rather than examining this problem, the report states: “the [commission’s] recommendations do not question or interfere with … these rights”.

Sex crimes have unique features, such as being personal crimes – often with no witnesses and leaving no physical evidence. For that reason, many victims and advocates believe sex crimes need a unique approach, and that the criminal justice system in its current form cannot be used successfully: a radical reimagining of how we process these crimes needs to take place. Tweaks will not turn a 1 per cent conviction rate into anything near what it needs to be for women and children to feel protected.

Lawyer Michael Bradley, author of System Failure: the silencing of rape survivors, explains: “The report works within the bounds of a pre-existing system that was not designed for crimes of sexual violence. It simply doesn’t work, and the reality is that it can’t. We need to rethink the entire system response from the ground up.”

If implemented, the commission’s recommendations, though helpful, would make little real difference to experiences like mine. Unfortunately, the justice system will remain an unsafe place for victims until fundamental reform is made.

Would I recommend that a victim of sexual violence enter this new system with all recommendations in place? Sadly, the answer remains no.

Sonia Orchard is author of Groomed, a memoir about abuse and the Australian justice system, published by Affirm Press.