Victims of sexual violence often feel they’re the ones on trial. Independent lawyers would help

The Australian Law Reform Commission has launched its final report on how the justice system deals with sexual violence. The Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence^[1] report found there are widespread barriers to victim-survivors’ access to, and engagement with, the justice system.

More than a year in the making, the report makes 64 recommendations to improve victim-survivors’ experiences and outcomes.

These include recommendations that centre safe, informed and supportive services, such as justice system navigators, independent legal services, and safe places to disclose.

Importantly, the inquiry also recommended independent legal advisers be introduced to help victim-survivors navigate the court system and advocate for their rights. It’s a measure supported by academic research, including my own, soon to be published^[2] by the Australian Institute of Criminology.

High rates of sexual violence

More than one in five women^[3] have experienced sexual violence since the age of 15.

Women experience sexual violence at greater rates than men, but research^[4] suggests non-binary and transgender people are victimised at similar or higher rates than cisgender women.

The justice system relies on victim-survivors’ confidence that they’ll be kept safe if they report sexual violence.

In reality, however, many will avoid or delay reporting because they fear police and justice system responses.

So as stark as the statistics above are, they only reflect reported sexual violence. Actual rates are likely much higher.

The Personal Safety Survey^[5] found that 92% of women did not report their most recent experience of sexual violence to police. This suggests there continues to be low reporting rates and a reluctance for victim-survivors to engage the justice system.

Even if they do report, the criminal justice system has been found to re-traumatise victim-survivors^[6], leading to unsatisfactory experiences and outcomes.

Humiliated and confused

The Australian Law Reform Commission set out to inquire into justice system responses to sexual violence in August 2023.

This inquiry formed part of the government’s $14.7 million 2023–24 budget^[7] commitment to strengthen and harmonise consent laws and transform experiences and outcomes for victim-survivors.

The commission heard from victim-survivors, practitioners, ministers and other experts which informed the terms of reference^[8].

The commission’s report is the latest piece of evidence in a growing body examining victim-survivors’ negative experiences in the courts. My forthcoming report shows they feel violated, scared, humiliated and confused when engaged with the justice system.

A key reason for this is because they have no independent lawyer advocating for them in court. They are often surprised to learn the prosecutor represents the public’s interests and not their own, which has contributed to feelings of alienation and exclusion^[9] from the justice process.

The commission heard victim-survivors are frequently exposed to character attacks at trial. In my study, 77% stated they are commonly asked about their prior sexual experiences, digital communications and counselling/medical records in court.

This made many victims feel like they were on trial rather than the perpetrator.

The Australian Law Reform Commission’s report seeks to address these problems. Recommendation nine calls for independent legal advisers to provide legal advice – and, to a more limited extent, representation – throughout criminal proceedings.

Having legal representation would enable the victim’s lawyer to challenge any request from either the prosecution or defence counsel to access and question victim-survivors’ private records, such as sexual assault counselling communications.

What can be done?

The criminal justice system already has legislation in place restricting the sorts of questions that can be asked of victims in court, such as in relation to their counselling records or prior sexual experiences.

However, my research shows these restrictions are not well enforced, exposing victim-survivors to offensive and humiliating questioning at trial. Independent lawyers for victim-survivors would better protect against this.

Read more: New research shows 1 in 5 Australians have perpetrated sexual violence in their adult lives. The true rate might be even worse^[10]

Victim lawyers already exist in New South Wales^[11] and Queensland^[12] to offer protections of victims’ counselling records. Federal government pilots^[13] for victims’ lawyers are also underway in Victoria, the Australian Capital Territory and Western Australia.

Evidence^[14] shows introducing lawyers for victim-survivors does not compromise the rights of the accused perpetrator. Instead, it allows victim-survivors to give better evidence in court, to feel more empowered, and to stay engaged in a process that has been known to re-traumatise^[15] them.

There is strong support for the introduction of independent lawyers for victim-survivors of sexual violence in research^[16] and practice^[17] evidence, and among lived experience advocates^[18].

To ensure the promises of the inquiry are fulfilled, the government must continue to be guided by expert research evidence and the lived experience advisory group it appointed to support the implementation of the recommendations.

The author would like to acknowledge the work of researchers Michael Salter, Delanie Woodlock, Zarina Vakhitova, Andi Brown and PhD candidate Jessica Woolley for collaborating on the research this article reports.

References

1. ^{^} Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence (www.alrc.gov.au)
2. ^{^} soon to be published (www.aic.gov.au)
3. ^{^} one in five women (www.aihw.gov.au)
4. ^{^} research (s3-ap-southeast-2.amazonaws.com)
5. ^{^} The Personal Safety Survey (www.abs.gov.au)
6. ^{^} re-traumatise victim-survivors (theconversation.com)
7. ^{^} budget (ministers.ag.gov.au)
8. ^{^} terms of reference (www.alrc.gov.au)
9. ^{^} alienation and exclusion (victimsofcrimecommissioner.vic.gov.au)
10. ^{^} New research shows 1 in 5 Australians have perpetrated sexual violence in their adult lives. The true rate might be even worse (theconversation.com)
11. ^{^} New South Wales (www.legalaid.nsw.gov.au)
12. ^{^} Queensland (www.legalaid.qld.gov.au)
13. ^{^} Federal government pilots (ministers.ag.gov.au)
14. ^{^} Evidence (onlinelibrary.wiley.com)
15. ^{^} re-traumatise (pubmed.ncbi.nlm.nih.gov)
16. ^{^} research (journals.sagepub.com)
17. ^{^} practice (www.theguardian.com)
18. ^{^} lived experience advocates (www.alrc.gov.au)