Rape reforms ‘must protect the accused too’, say criminal defence lawyers

A law reform inquiry into sexual assault legal frameworks must protect the rights of alleged offenders or else risk innocent parties from becoming wrongfully imprisoned, defence lawyers say.

A law reform inquiry into Australia’s sexual assault legal frameworks must protect the rights of alleged offenders, criminal defence lawyers say.

A law reform inquiry into Australia’s sexual assault frameworks must protect the rights of alleged offenders or else risk innocent ­parties from becoming wrongfully imprisoned, experienced criminal defence lawyers say.

The Albanese government on Tuesday announced the Australian Law Reform Commission would be conducting a review to probe procedures, evidence, court processes, jury directions and consent laws in a bid for better outcomes for sexual assault victims.

However, experienced criminal defence lawyers have urged the ALRC to protect the rights of the accused, not just those of complainants, when delivering its report, or else risk jeopardising fair trials.

Hanna Legal principal Nick Hanna said reforms that come from the review could risk operating under the assumption that false allegations of sexual assault do not occur.

“Those of us who work in the criminal justice system, including prosecutors, know that this is simply not the case. There are a range of reasons for complainants making false accusations, including mental illness or ulterior motives,” he said.

“Even if this only occurs in 5 per cent of cases, we are still talking about a very large number of defendants who are at risk of being wrongly imprisoned if our justice system does not have adequate safeguards in place.”

Mr Hanna, who practices in NSW, said the terms of reference of the inquiry “may be used to push for the national rollout of the types of reforms implemented in NSW in recent years”.

“While these reforms may have been well-intentioned, they have had, in my experience, some unintended adverse consequences for our justice system,” he said. “For example, since the ‘affirmative consent’ laws came into force here in 2022, I have seen an increased number of people charged with sexual offending arising out of genuine misunderstandings, particularly with teenage clients.

“Another example is when a complainant has a known history of making false complaints, yet ­defendants are prohibited from questioning them about this.”

Mr Hanna said while the rights of genuine victims should be protected, “great care must be taken to ensure that any reforms designed to achieve these aims do not result in the imprisonment of those falsely accused of sexual violence.”

Hugo Law Group partner Karen Espiner told The Australian any attempt to reduce the rights of alleged offenders would be an “egregious attack” on the criminal justice system.

“An accused person is entitled to the presumption of innocence, to exercise his or her right to ­silence, to choose to be tried by a jury and to challenge evidence put forward by the prosecution, which must prove the criminal allegations to the criminal standard of proof – beyond reasonable doubt,” she said.

“Any attempt to remove these fundamental rights, or to lower the standard of proof for one category of alleged offending only, would be an egregious attack and would erode the community’s trust in the impartiality of the justice system.”

Ms Espiner said it was important that an accused person “be able to challenge the account of a complainant to enable the allegations to be thoroughly tested”.

“Any attempt to tip the scales in favour of complainants by adopting an overly ‘victim-centric’ approach for one category of alleged offending only should be strongly resisted,” she said.

Bannisters Lawyers solicitor Gemma Ridley said while the review was positive in “ensuring fairness for the criminal justice system generally”, the rights of alleged ­offenders must be balanced with those of victims. “It’s important that if there is going to be any legislative reforms, they need to be balanced with the rights of an accused person,” she told The Australian.

Advocates against sexual violence have been widely supportive of the review, which is due to deliver recommendations to the government in January next year.

FullStop Australia CEO Karen Bevan wants to see an “ambitious, transformative and victim-centric review of justice system responses to sexual violence”.

“This review should create real change, including initiatives such as establishing specialist sexual violence courts, training on trauma and gender-based violence for everyone who works in the justice system, publicly funded independent legal support for victim-survivors of sexual violence, and the introduction of independent advocates to support and guide victim-survivors throughout the justice system process,” she said.