Law reform call to examine jettisoning juries for sex trials
An investigation into juryless rape trials and a crackdown on ‘inappropriate’ questions from defence lawyers are part of a blueprint to overhaul the approach to sexual assault cases.
An investigation into juryless rape trials, a crackdown on “inappropriate” questions from defence lawyers and a ban on wigs and gowns in court are part of a blueprint to overhaul the justice system’s approach to sexual assault cases.
The report, commissioned by federal Attorney-General Mark Dreyfus’ department and the Australasian Institute of Judicial Administration, has been delivered to all state and territory attorneys-general as part of a five-year plan to improve justice for rape victims. The report recommends for greater research into juryless trials, despite a pilot program in Scotland being widely criticised by the local legal fraternity and various regional bar associations saying they would boycott the pilot as it infringed on a defendant’s right to a fair trial.
AIJA president Jenny Blokland lauded the importance of the report, due to the “ongoing prevalence of sexual violence in Australia producing immense harm and trauma in our society”.
“It requires committed action across all jurisdictions, sectors and levels of government to effectively address and prevent its continuation,” she wrote in the report’s forward.
The report outlines “specialist measures” to break down barriers that prevent victims from reporting sexual assaults, and reduce the risk of retraumatisation during trial. “The literature indicates that appearing in court at the trial – and, in particular, cross-examination – is one of the most intensely stressful experiences for victim-survivors in the whole process of seeking justice, and a formidable barrier to seeking justice” the report, compiled by CQUniversity College of Law and the Queensland Centre for Domestic and Family Violence Research, reads.
The researchers discuss how to minimise the impact of “inappropriate questioning by defence counsel” by potentially mandating special training for all counsel appearing in sexual offence cases, and using intermediaries when necessary.
“In Australia and Aotearoa New Zealand, in the domains that hear sexual offences trials there is legislation designed to reduce the risk of inappropriate questioning by defence counsel,” the report reads.
“However, the Australian legislation is inconsistent, and reports and evaluations in both jurisdictions indicate that despite such legislation (and absent specialist training, ground rules hearings and intermediaries), improper questioning continues.”
Remote evidence facilities and the use of screens are also cited as opportunities to “provide greater choice for a victim-survivor and reduce the risks of retraumatisation inherent in giving evidence before a defendant”.
“The removal of wigs and gowns, and closed courts, facilitate a greater sense of compassion, humanity and privacy,” the report reads. “However, such special measures are not consistently available across domains or jurisdictions.”
The research advocates for greater support for victims in the instance of a retrial, due to high chances of retraumatisation during a second cross-examination, and the significant likelihood that a complaint will be dropped.
“One victim-survivor stated that the finalisation of her complaint took eight years and involved two trials – the first resulted in a hung jury; she had to be cross-examined twice, and the ultimate outcome was an acquittal,” the report reads.
“Such an extended experience prolongs the traumatisation of victim-survivors, leaving little opportunity for them to heal from the violence, while also increasing the likelihood they will withdraw their complaint.”
The report comes after the highly publicised rape trial of former Liberal staffer Bruce Lehrmann – who was accused of raping colleague Brittany Higgins – was aborted due to juror misconduct. Mr Lehrmann has always denied the allegations.
Subsequently, ACT chief prosecutor Shane Drumgold resigned after an inquiry chaired by Walter Sofronoff KC found he engaged in serious malpractice and grossly unethical conduct during the course of the case.
“Rape myths” are identified in the report as a key barrier to successful convictions, with the researchers saying prosecutors may fall victim to “false beliefs about sexual violence”.
“(Rape myths) include suggestions such as that the complainant (usually a woman) acted or dressed in a way to encourage sexual activity, or was reporting sexual activity as an assault to cover for her promiscuous behaviour,” the report reads.
“The cases of sexual violence most likely to be progressed by prosecutors are those corresponding to stereotypical notions of ‘real’ rape, involving indicators of a ‘damsel in distress’: injuries to the complainant, a weapon, a complainant who physically resisted her assailant, and/or an assailant who was unknown to the complainant. Unfortunately, these factors perpetuate rape myths about ‘ideal’ rape victims. When prosecutors fail to progress cases due to stereotypes and misconceptions about sexual violence, victim-survivors can be silenced, disempowered, stigmatised, and shamed.”
Rape myths can also impact a jury, the research says. As such, the report canvasses the potential for juryless rape trials following the implementation of varying models overseas, and encourages further Australian research.
Scotland has plans to implement a juryless rape trial pilot, and the most recent England and Wales Law Commission consultation paper highlights juryless trials as a viable reform option, along with specialist courts.
The research acknowledges that Scotland’s proposal has been met with “significant resistance” from senior members of the legal profession, with the Glasgow Bar Association stating plans to boycott the judge-alone pilot, and the Scottish Bar Association saying it believes the pilot would infringe on the right to a fair trial.
However, the report cites the South African model – which has sexual assault trials heard by a judge and two person lay-panel – as a “successful example of an alternative approach to the traditional adversarial trial.”
“The issue of juryless trials is emerging in a number of jurisdictions as a measure to address juries’ misconceptions and the need for a greater evidence base has been identified in several jurisdictions,” the report reads.
A spokesman for Mr Dreyfus said: “The commonwealth is committed to developing a shared evidence base to inform best practice policy development, implementation and evaluation.”
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