The Australian criminal justice system is facing significant scrutiny for its handling of sexual assault cases, with only a quarter of women who report such incidents seeing their perpetrators charged. Despite research indicating that false allegations account for no more than 5% of reported cases, the system continues to falter in delivering justice to victim-survivors. The shortcomings of the system have become increasingly evident, revealing a structure ill-equipped to address the complexities and nuances of sexual assault cases effectively.
Historically, the justice system has ignored crucial discussions on consent, as noted by Jennifer Coate, who recalls the absence of such dialogues when she began her legal career. In the past, only victims of "stranger rapes" were taken seriously, and even then, their credibility hinged on not being out late or dressed provocatively. This outdated mindset reflects a broader issue within the adversarial criminal justice system, which has remained largely unchanged since the 15th century.
The prosecution process further complicates matters, as prosecutors do not represent victims but rather the Crown, the reigning monarch. This disconnect highlights the need for a shift in how victim-survivors are perceived and treated within the legal framework. Michael Bradley, a prominent voice in advocating for reform, points out that victims often feel as though they are the ones on trial, stating:
"What it means is that when you get to trial, the only evidence the court hears is that of the victim and so, of course, she goes on trial." – Michael Bradley
The principle underlying much of the system's operation is Blackstone's ratio, which states:
"It is better that 10 guilty persons escape than that one innocent suffer." – William Blackstone
This notion prioritizes protecting defendants from wrongful conviction but simultaneously diminishes the chances of securing justice for sexual assault victims. As Bradley notes, the likelihood of a perpetrator facing consequences is alarmingly low:
"If you look at the probability someone’s going to report to police, the probability police will prosecute, the probability someone is going to be convicted and punished for that rape – it’s somewhere south of 1%. That is negligible." – Michael Bradley
The Victorian Law Reform Commission (VLRC) review in 2021 highlighted persistent stereotypes and "rape myths" present in courtrooms across Australia. Recommendations included introducing more juror directions and repeating them throughout trials to counter these biases. Additionally, affirmative consent laws introduced in New South Wales, Victoria, and the Australian Capital Territory have made strides in balancing the scales of justice.
However, as Bradley emphasizes, a deeper systemic overhaul is required:
"Your chances of actually facing consequences for committing rape are almost nonexistent and that is by design. And if we are all comfortable with that, then cool, let’s stick with what we’ve got. But I’m not." – Michael Bradley
The ongoing review by the Australian Law Reform Commission seeks to address both trial outcomes and the treatment of victim-survivors. The upcoming report by Attorney General Mark Dreyfus promises to shed light on necessary reforms needed to restore faith in the system.
The Law Council of Australia maintains that foundational legal principles must be upheld:
"The presumption of innocence, the right to silence, the right to a trial by jury, the burden of proof resting on the prosecution, and the criminal standard of proof (beyond reasonable doubt) are all essential to the integrity of the criminal justice system," – Law Council of Australia
Yet, Mary Iliadis underscores a critical aspect often overlooked:
"This is a problem when we consider that the integrity of the criminal justice system also rests on victims’ confidence that the reporting of crime will not cause further harm or worsen existing harm," – Mary Iliadis