When #MeToo goes too far

Laws to help rape victims are silencing evidence that may be crucial to defendants.

John Jarratt, centre, outside the Downing Centre in Sydney before the rape case against him was thrown out. Picture: AAP

It took a Sydney jury just 15 minutes­ to throw out the high-profile rape case against Wolf Creek star John Jarratt.

“I was just painted as this black, evil thing,” Jarratt, 66, told the Nine Network’s 60 Minutes prog­ram after the week-long trial last month. “I’m sitting there and thinking: how can you say these horrible lies?”

The actor’s former flatmate had accused him of raping her 43 years ago, as his wife slept in the next room. But his accuser’s story quickly fell apart at the trial as she struggled to explain her conflicting accounts of the night and why, if she had been raped, she had remaine­d friends with Jarratt and his wife over the next decade.

“I have never seen a more undeserving, weak case,’’ Jarratt’s lawyer Chris Murphy told The Australian. “What a pity the crown didn’t refuse to proceed.”

Jarratt spent 20 months on what he calls “media death row”, an industry untouchable from the moment he was charged.

“I know the police reconsidered and did not want to go ahead with it but the DPP (Director of Public Prosecutions) has a roomful of barristers hoping to be made Distric­t Court judges some day,’’ says Murphy, a 40-year veteran of Sydney’s criminal courts.

“They don’t want to be seen to be dropping a case against someone who has been #MeTooed.”

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Section 293

The plight of the accused in sexual assault cases was suddenly bought into sharp focus again last week when a NSW District Court judge warned that the state’s strict laws protecting rape victims had forced him to exclude critical evidence from a jury about an alleged rape victim’s long history of false sexual assault complaints.

The judge, who The Australian has chosen not to name, said the man accused of rape, known as “RB”, would now be forced to defen­d himself at trial without being able to tell the jury about 12 incidents in which the woman had fabricated claims of sexual abuse.

He said two separate police investigati­ons had ended with the woman admitting she had lied to the police. She was later charged with, and pleaded guilty to, making a false report. But under section 293 of the Criminal Proced­ure Act (NSW) the judge has no powers to admit the evidence to trial.

The legislation was introduced in 1986 to stop “offensive and ­demeaning” cross-examination of alleged rape victims’ sexual­ history and rein in the often devastating use of the so-called “nuts and sluts” defence in rape trials. But the judge says in this case that law is causing unintended con­sequen­ces, denying the ­accused a fair trial. He also can’t lawfully stay the proceedings, a situation he ­describes as “an ­affront to justice”.

“That unfairness is real and not illusory,” he said. “It prevents the accused from placing before the jury relevant evidence … showing the complainant to be a compulsive false accuser of sexual misconduct.”

NSW Attorney-General Mark Speakman has already intervened in the case to argue that the law is constitutional. But in response to the judge’s call for NSW parliament to consider amending the law he has asked the Office of the General Counsel to examine the R v RB judgment in detail.

NSW unique

Section 293 has long been a thorn in the side of the state’s judiciary. In 1993, three NSW Court of Criminal Appeal judges called for the section to be amended — but repeated demands for reform, largely from the NSW Bar Association, have gone ignored.

Stephen Odgers, criminal silk and co-chair of the association’s criminal law committee, has been one of the loudest voices, lobbying successive state governments to deal with the problem.

“It is only in relatively unusual circumstances where the provision produces absurd outcomes, but it does pop up every few years,” says Odgers. “This is a good example of the injustice it can cause.”

Odgers says NSW was one of the first common-law jurisdictions in the world to impose restrictions on the cross-examination of sexual­ assault complainants about their sexual history.

The changes were aimed at making rape trials less traumatic for complainants and to stop “cross-examinations from going over the top”, Odgers says. But three decades on NSW now stands alone as the only jurisdiction that doesn’t allow judges some leeway to admit relevant sexual history evidence where warranted.

“To be blunt, I think it reflects a distrust of judges,’’ says Odgers. “The feminist take on an out-of-touch judiciary who harbour misog­ynist rape myths.”

He says it is “exceptionally difficul­t to know” how many sexual­ assault trials have led to wrongful convictions or prosecutions that have been unable to proceed at all because of section 293.

At the same time, he says, a huge shift in cultural attitudes means going in too hard on alleged rape victims at trial these days only tends to damage the defence.

Prosecutors were also launching more sexual assault cases than they would have two to three decades­ ago because they were now “easier to get over the line”.

“Cases that might not have been run before are now being run, in cases where it’s just word against word,’’ says Odgers. ­“Thirty years ago, appeal courts would have been prepared to overturn a guilty finding where it had been word against word.”

Prosecution spike

NSW Bureau of Crime Statis­tics figures show a dramatic leap in the number of sexual assault prosecutions in the past five years — from 1209 in 2014 to 1790 last year.

The win rate for sexual assault cases still remains notoriously low, about 55 per cent, compared with a success rate of 85-95 per cent for every other criminal offence.

But that’s a marked improvement on 15 years ago, when just 42.07 per cent of offenders were found guilty.

“Getting convictions for sexual assault is still ridiculously difficult,” says Karen Willis, executive officer of Rape & Domestic Violence Services Australia.

A 30-year veteran in the fight to professionalise support services for sexual abuse survivors, Willis says rapists are still largely protected by the terrible shame of their victims. Only an estimated 70 per cent of sexual assaults are ever ­reported and only 1-3 per cent of complaints make it to court.

“There’s a lot that don’t ever get off the police desk or through the DPP,’’ Willis says. “It can get wiped out just because a victim has a previous mental health condition.”

While the odds remain heavily loaded in favour of the accused, there’s a growing unease among Sydney criminal lawyers about the number of deeply flawed sexual assault trials that have been launched by the NSW Director of Public Prosecutions in the past five years.

Greg Walsh, a prominent Sydney criminal lawyer who has acted for victims and high-profile defend­ants in a number of sexual assault cases, says the DPP is increasingly­ launching sexual assault­ prosecutions, regardless of the strength of the evidence.

“There’s a great risk this expon­ential increase (in sexual assault prosecutions) will lead to increases in the miscarriage of justice,’’ Walsh says.

‘It’s gone too far’

A “real hysteria” around sexual allegatio­ns started with the shocking revelations by the Royal Commission into Institutional Response­s to Child Sexual Abuse, followed by the #MeToo campaign, Walsh says.

“The problem with the #MeToo movement is that it encourages­ women to believe all men are sexual offenders,” he says. “It’s gone too far. An accused person­ today is perceived to a great extent as being guilty, and that’s wrong.”

Protections for sexual assault complainants need to be balanced against the rights of the accused, he adds. Section 293 is “often used as a blunt instrument. The law should not be used to obtains convictio­ns at any cost.”

The collapse of the high-profile rape case against Jean Claude Perrott­et, 20, in 2017, still stands as one of the most spectacular fails by the NSW DPP in recent years.

Perrottet, whose older brother Dominic is the NSW Treasurer, had been charged with three counts of sexual assault without consent against a 19-year-old woman at a formal at St John’s College at the University of Sydney­ in 2015.

The crown case was that the woman had been raped, although she admitted she was so drunk it had affected her memory of the night and her conflicting accounts of what happened were at odds with the forensic evidence.

Perrottet told the NSW District Court he also had too much alco­hol that night, but insisted he did not force the woman to do anything and said she did not object. He said he had even dozed off during­ the brief sexual encounter.

It took the jury just two hours to deliver their not-guilty verdicts, prompting an extraordinary ­ruling by judge Stephen Norrish­ QC, who ordered the NSW DPP to pay Perrottet’s entire legal costs, estim­ated at between $400,000 and $700,000.

Norrish said the crown should have been aware there were critical flaws in its evidence before proceeding to trial. Perrottet, he said, had “impressed as an honest witness”, while the woman’s account of the evening was “more coherent than would be expected with her level of intoxication” on the night.

The woman had not immediately claimed she’d been sexually assaulted, he said, but when a ­female friend had seen her “bedraggled­ state” when she returne­d to her room with Perrottet, it was the friend who suggested to her she may have been raped.

Summing up the case, Norrish said: “It was a word-against-word case where there was an absence of supporting evidence­ when it should have been expected. She (the complainant) was seemingly genuine but ­confused … who was put in a position by well-meaning friends over which she had little control and from which she could not turn back.”

One former NSW crown prosec­utor who followed the case observed: “She gave him oral sex, it was only her DNA on the inside waistband of his underpants. He’d never had sex before.

“In the old days, we (prosecut­ors) would have said: ‘Look, I ­believe you, we all believe you, your mum and dad believe you. But if we take this to trial all you will ever remember is the not-guilty verdict, stuck in your head for the rest of your life.’ ’’

Unnecessary trauma

It was that kind of tough-love ­advice that led to a public savaging of high-profile criminal barrister and former senior NSW crown prosecutor Margaret Cunneen by the Royal Commission into Instit­utional Responses to Child Sexual Abuse in 2014.

Cunneen was grilled by the commissioners for two days over her leaked confidential advice to the Queensland DPP, advising it not to proceed with a histor­ical child sex abuse case against then Swimming Australia coach Scott Volkers.

Known for her forensic­ pursuit of notorious rapists and pedophiles, Cunneen told her peers over the border that, while Volkers “appeared to have been a thoroughly disreput­able man”, the child molestation allegations against him were “relatively minor”.

She raised concerns about whether the “12-year-old swimmers even had breasts” and noted the “unlikelihood that a 13-year-old girl would have experienced an orgasm while being indecently assaulted­”, especially as she was wearing two pairs of swimmers and a pair of shorts.

Given that the complaints were also 20 years old, she concluded, there was little prospect of a ­successful prosecution.

Defending herself to the commission, Cunneen said that blunt advice had never been intended for public consumption.

“My personal views are irrelevant,” she said, “and it’s not my view of the credibility of those ladie­s (the alleged child victims). It’s what I think a jury’s view would be with certain attacks that would be made.”

It was a rare insight into the horse trading involved for prosec­utors in assessing whether a sexual assault case should go to trial.

Cunneen’s advice had been backed at the time by her boss, ­former NSW DPP director Nicholas Cowdery.

As Cunneen explained to the commission, sexual assault cases were so difficult to prosecute, hard decisions often had to be made. It was hardly helping sexual assault complainants by putting them through the trauma of a doomed rape trial, she said.

Murphy says whatever brakes may have been applied by the DPP on sexual assault cases in the past, the abolition of committals in NSW — where a magistrate would decide whether the crown’s prosecution case was strong enough to go to trial — meant “the crown is now the umpire”.

“They’ve thrown the referee’s whistle back to the crown, now they get to decide which cases to go before a jury,” says Murphy.

Crown prosecutors have either become “ideological zealots” — pressing on with sexual assault cases no matter how weak the evidence — or, just as commonly, they are so “shit-scared” of public condemnation they continue with cases they don’t believe in.

“The rule in the courts used to be the sparing rule of the crown. The crown was supposed to unroll all the evidence, good and bad, like a carpet, and put it all to the jury,’ says Murphy.

“What we have had in recent years is selective prosecutions with prosecutors taking a far more aggressive role. Its not just zeal. It’s also excessive timidity.’