By Sarah Tan
This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. This post was originally published on Themis Says of Monash’s Feminist Legal Studies Group.
‘I would not put myself through that again. I was the one that was put on trial. That’s not right… It tears [victims] apart… It’s not compulsory for [the Defendant] to be cross examined at any point… they can just sit there and watch.’ – Tanya, victim of rape and assault
Sexual assault trials are widely known for being one of the most difficult offences to prosecute. Since the 1970s, reform work has been undertaken to revamp the Australian approach to dealing with sexual offences. Nonetheless, research has shown that at least 85 per cent of sexual assault cases do not reach the criminal justice system. With victim groups still describing the criminal justice process as ‘disempowering, counter-therapeutic, costly and delayed’, it is evident that the recent Victorian law reforms have had not much of a practical effect. Although the issue of sexual assault cannot be addressed solely by legislative change, it can be argued that the adversarial system actively harms sexual assault victims due to its need for victims to be cross-examined, the passive role victims play in the adversarial system, and the use of sexual history evidence.
In any adversarial system, the cross-examination of witnesses is an essential feature. Through cross-examination, a witness’s evidence is scrutinised for inconsistencies that may render it unreliable. In a bid to protect sexual assault victims, courts utilise a variety of protective procedures including the giving of a victim’s evidence via a closed-circuit television at a remote facility. However, sexual assault victims are still fearful of the trauma of the legal process. Victims are often subject to an aggressive and traumatising cross-examination, till the extent that many describe it as ‘a second rape’. Under such circumstances, the adversarial criminal trial process is ground for secondary victimisation as sexual assault victims are required to recount the trauma of their original experience.
Furthermore, more often than not, many prosecutors do not do enough to prevent the unfair cross-examination of sexual assault victims. With defence lawyers having a duty to present their client’s case ‘fearlessly with vigour and determination’, victims are often unfairly cross-examined. As a result, victims tend to perceive themselves as being on trial and may develop a belief that they were victims due to their own faults.
The adversarial system also actively harms sexual assault victims due to the passive roles victims are given. Under an adversarial system, victims are positioned as spectators and are unable to present their views except when questioned as a witness. The passive role allocated to victims may result in feelings of frustration and alienation which may aggravate the traumatic impact of the sexual assault itself.
Furthermore, given their inability to give directions to prosecutors and their inactive role in proceedings, victims perceive a lack of transparency in the decision-making process. Victims will also feel dissatisfied with the trial process as they do not feel included. Under such circumstances, victims may regard sexual assault trials as being unfair, biased, and ineffective as they are prevented from voicing out the circumstances of the crime in a meaningful way for them.
Victims want to have a role in the court as they have an interest in the judgement of the court. This is especially the case for sexual assault trials where the defence of consent is commonly argued – a verdict of guilty will allow the victim to feel he/she was believed, whereas a not guilty verdict may lead to dire psychological consequences, resulting in the victim having an unjustified stigma. By having a voice in the process, victims are heard and have the opportunity to have their experiences acknowledged as hurtful and wrong. Such validation is supported by victim interviewees who have described the opportunity to speak as a validation of one’s suffering.
Sexual history evidence
Another key feature of the adversarial system that actively harms sexual assault victims is the use of sexual history evidence. Although reformations in Victoria have been made such that evidence of a victim-complainant’s sexual history is not permitted subject to the leave of the court, the practical reality is such that this evidence is widely used. Even where applications are made to allow the use of sexual history evidence, the applications are often purely formal and technical. With such a premise, sexual assault victims are actively harmed as they may be perceived as untruthful and unreliable due to their sexual history.
A total shift?
Nevertheless, caution should be taken when abandoning the adversarial process – the adversarial system is beneficial in its own right. Through cross-examination, inconsistencies in testimonies are revealed. The strict rules of evidence and procedure also prevent unreliable evidence from being heard and ensure greater continuity in court process. In order to improve the criminal justice process for sexual assault victims, legal representation for sexual assault victims and the use of non-adversarial principles should be advocated.
By introducing legal representation for sexual assault victims, victims will have greater support, feel more confident, and feel less traumatised. Acting as a bridge between the victim and courts, the victim through the legal representative, will be able to present views and concerns without having the ultimate decision-making power. Although such a reformation goes against adversarial principles which disregards victim participation through a legal representative, this mechanism will enable victims to be more participative in court. Nevertheless, legislators should ensure that the legal representation of sexual assault victims are only permitted based on narrow participation rights. By limiting the legal representatives’ rights to safeguarding the victims’ rights when testifying, the role of the legal representative can be likened to an amicus curiae, assisting the court in presenting the views of the victim. With recent proponents arguing for the possibility of legal representation for sexual assault victims within clearly defined parameters, it is likely that legal representation be afforded to victims whilst maintaining and balancing the rights of the accused.
In recent years, there has been a diversion from traditional adversarial criminal justice processes to non-adversarial approaches. Rather than considering non-adversarial processes as a soft alternative, principles such as restorative justice and therapeutic jurisprudence can be utilised to fill in the gaps that are lacking in a purely adversarial system. Given the varied proceedings involved in sexual assault cases, the ‘one size fits all adversarial system’ is limited in its effectiveness.
An example can be demonstrated in the use of restorative justice conferencing; by incorporating the values of communication and participation in a discursive and non-adversarial process, victims are given a voice and do not need to combat the fear of reliving the original experience at trial. Furthermore, as conferencing provides a greater emphasis on the accountability of the offender, the victim-focused process provides victims with the opportunity to receive unanswered answers about the offending, thereby allowing victims to better cope with the repercussions of the assault. In addition, as restorative justice conferencing usually occurs after an admission of some type, victims will not need to undergo the disabling experience of feeling that they, and not the Defendant, is the one on trial.
The adversarial system actively harms sexual assault victims due to the need for a traumatic experience of cross-examination, the passive role of victims and the use of sexual history evidence. Nevertheless, rather than dispensing with the adversarial system as a whole, reforms should be taken to mitigate such effects. Only if a balance is struck between the use of adversarial and non-adversarial process can the needs of sexual assault victims be met.
About Sarah Tan
Sarah Tan is a third year Bachelor of Laws (Hons) student who will be completing her studies next year. Having grown up in Singapore, she has a keen interest in international arbitration. She is currently a seasonal clerk at Cornwall Stodart and hopes to pursue her passion for alternative dispute resolution prospects in the commercial law context. Sarah has also been involved in pro bono work at the Monash Oakleigh Legal Services and Law Society of Singapore Pro Bono Services Office.