He Said, She Said !

Warning: references to sexual assault and rape are contained in this article.

Normally I wouldn’t be repeating quotes from Peter Dutton, particularly as Spud has made it known that he will sue anybody who doesn’t show him the respect to which he feels he is entitled. Even so, when he glibly dismissed sexual assaults and our justice system, referring to a rape allegations as coming down to a contest of “he said, she said,” he did have a point.

Much publicity has followed the sexual assault case involving NRL footballers Jack de Belin and Callum Sinclair. The first trial resulted in the jury being discharged in March 2020 after having failed to reach a unanimous verdict : the alleged assault described as aggravated sexual assault had taken place in December 2018 so it had taken two years to get to court. A second trial was ordered and we now know that the jury after five days deliberation and having been given the opportunity of a majority decision were unable to reach a verdict on five of the six charges and acquitted de Belin on that charge – a third trial is unlikely.

Last week in the second trial of another footballer Jarryd Hayne – the jury in the first trial had been unable to reach a unanimous decision – resulted in a guilty verdict on one of two charges – he was found ‘not guilty’ of the charges of aggravated sexual intercourse without consent inflicting actual bodily harm, but was found guilty of the sexual intercourse without consent charges – he was sentenced to five years and nine months imprisonment of which he must serve three years and eight months – he has already lodged an appeal.

In the context of historical rape allegations, that is those not reported to police immediately after the assault, the process of gathering forensic and compelling evidence is greatly diminished. The police, as a matter of procedure, must assemble a bundle of evidence sufficient to convince a prosecutor that a successful prosecution can be mounted and persuasive enough to sway a jury, to a standard that will convince them beyond a reasonable doubt that the assault has actually taken place ; that penetration [in the case of rape or sexual assault] did in fact occur and that this was without the free and willing consent of the victim – injured party or survivor are alternative descriptors but the English language has limitations in how to describe with dignity a person who has been assaulted.

If the assault is historical as has been the case in matters raised recently in connection with our parliament and its officers, the task of the complainant and the police becomes even more difficult and some would say almost impossible to mount a case unless the defendant admits the assault which is unlikely to occur.

In the case of a federal politician accused of an historical sexual assault we were told that the rule of law must apply to the extent that, because the victim had since committed suicide, it was inappropriate for an enquiry to proceed or even for the alleged assailant to be interviewed by police.

The case of Brittany Higgins falls into the category of an historic event having allegedly occurred in March 2019 but not formally reported for investigation by police until some two years later. Despite the publicity, the investigation will encounter all of the hurdles that historic cases face : the lack of forensic evidence being foremost and of course the alleged assailant will have the presumption of innocence, the right not to answer any questions and the high standard imposed on a jury to achieve a conviction if charges are ever laid and the matter proceeds to court. No charges have been preferred at time of writing.

In the UK, over the past five years, cases reported to police and initially recorded as rape have risen sharply. However, the proportion making it to court (prosecutions) in that time has more than halved. In the year to March 2020, just 1.4% of rape cases recorded by British police resulted in a suspect being charged. In the same year 58,856 cases of rape were recorded by police forces in England and Wales, these led to just 2,102 prosecutions. In Australia only one in 10 reported cases of sexual assault results in a conviction.

The assault itself will be a traumatic event in the life of any young woman – or young man – but the way our justice system is arranged, the pain will only get worse as the lumbering processes of the law takes over, if the assault is as recommended by the authorities, reported shortly after it has occurred.

All of the state jurisdictions have similar procedures designed not so much for the benefit or well being of the injured party but rather, to meet the demands of our adversarial legal system. The advice from the Australian Federal Police in the ACT illustrate the situation and give a hint to the tortuous procedures about to take place :

“… don’t shower, drink liquids, smoke or change your clothes following a sexual assault. This will assist police and medical staff to collect forensic evidence that may belong to the offender and be used if the matter goes to court.”

The injured party will be admitted to a rape suite or a hospital, have their clothing replaced with a smock, have swabs, probes and photographs taken of any injuries or bruising particularly in the genital area ; all of which will at a later date be trawled over in court by a jury to establish the degree of physical injury to support the prosecution case.

The alleged offender will of course be granted the presumption of innocence and will not be required to make any statement or give evidence unless inclined to do so – the burden of proving the case beyond a reasonable doubt rests wholly with the prosecution.

The injured party will, however, be subjected to excruciating cross examination and probably humiliation at the hands of the defendant’s barrister. The prosecution will have to establish that the assault not only took place and that penetration to one or more orifices occurred but that this happened without the willing consent of the complainant. It is generally the law that a person cannot be considered to having freely consented if they were under the influence of alcohol or other substances or if they are asleep or otherwise physically helpless at the time of the offence.

The jury will then endeavour to determine the guilt or innocence of the defendant and must establish this to the required criminal standard, beyond a reasonable doubt. If the jury, or even one jurer, in the case of a unanimous decision, have any reasonable doubts based on the facts as presented, then they must acquit. To assist a hung jury a judge will frequently allow a majority decision of eleven to one but even this didn’t assist in the de Belin case.

We continue to follow the principle known as Blackstone’s Ratio that “It is better that ten guilty persons escape than that one innocent suffer.” But, the inevitable question that arises is this : is our system of law and justice fit for purpose when it comes to sexual assault or is it an absurd pantomime serving only the legal fraternity and leaving the aggrieved parties humiliated, abandoned and disillusioned ?

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