The law fails sexual assault victims: where to next?

The Perrottet and Lazarus cases demonstrate the need to strengthen other avenues of justice.

Content warning: sexual assault

“As crime hurts, justice should heal”, according to ANU criminologist John Braithwaite. In the case of sexual assault, however, the justice system often deals a second blow. When the criminal trial process requires defence lawyers eviscerate victims on the stand, and casts doubt on a victim’s experience by design, it is hard to see where healing begins.

This month, Jean Claude Perrottet was tried for sexually assaulting a woman at a St John’s College formal in 2015. On the night of the incident, the woman told police, “I just remember him being on the ground and lying there and saying ‘stop it, get off me’.” Perrottet’s lawyer said forensic evidence to support the allegations was absent. “If you simply don’t know what happened beyond reasonable doubt, that would lead you to not being satisfied of any of the accounts,” she told the jury. She told them Perrottet was of good character. He was found not guilty.

Two months prior to this, Luke Lazarus, convicted by a jury of sexually assaulting a young woman in an alleyway behind Soho in 2013, had his conviction overturned. The judge overseeing the appeal acknowledged that the woman in question, who had had 10 standard drinks and was a virgin at the time, had not consented to having anal sex with Lazarus behind the nightclub. The judge simultaneously found there was no evidence to support Lazarus knowing that she did not consent. Lazarus has returned to the community.

That the women did not consent to sex in these cases seems clear: intoxication and unconsciousness — common to many cases of sexual assault involving students of university age — nullify meaningful consent. Yet these incidents most often take place in college dorm rooms, nightclubs, and at parties — without witnesses or physical proof, and often under the influence of alcohol — meaning proving sexual assault in court near always relies on “he said, she said” testimony. A victim’s testimony is seldom sufficient to convince a jury that sexual assault has occurred beyond the law’s required standard of “beyond reasonable doubt” — it is estimated that fewer than one in 100 cases of sexual assault results in conviction. 

The Australian Human Rights Commission’s (AHRC) recent survey found 10 per cent of female students had been sexually assaulted in the last two years alone. This is a problem too widespread for the legal system alone, and an indictment of society. These statistics stem from a steady stream of failures: failures of conservative religious institutions to countenance any form of sex education; failures of education systems to teach positive sex and how to recognise consent; failures of workplaces that prioritise the reputation of their organisation over women that turn to them for support; failures of prominent voices in the community that lay blame squarely on women.

None of this should absolve the personal responsibility of perpetrators, even though it is true that these incidents can be a result of ignorance over malice, involving young men uneducated in sexual communication who do not recognise when consent is absent. But when men on witness stands are ignorant of the meaning of consent, and their peers are unsure why their actions constitute wrongdoing, pinning hopes for justice on convicting men as singular perpetrators is a trodden route often futile at best, and traumatising at worst, ultimately vindicating alleged offenders. The prolonged and gruelling trial process — where powerful spokespeople are wheeled into the public arena to make grandiose character statements that bolster the accused — does little to teach consent, little to breed remorse, and little to deter others from repeating this behaviour.

Still, justice must be available to women when criminal justice is not. So where will it come from?

Survivors of sexual assault often want to see cultural change, to be believed, to feel closure, and to recover. If the law cannot deliver these outcomes, it is incumbent on the institutions with which they interact most to provide this; if they don’t, women are left with next to no recourse. Schools and universities must deliver education in sex and consent that is open and robust. At the time of Fair Agenda’s survey of universities in 2016, only 87 of 217 universities surveyed were offering training about consent, and only 30 were using qualified educators.

When victims do come to universities for counselling and support, universities must be an avenue for women to be believed and supported.The AHRC report provides damning anecdotes of their failure to do so. One example tells of a student who reported her rape by a fellow college student, and was asked “what [she] would be doing in the future to cut back on drinking to make sure ‘bad things like this don’t happen again’.”

Restorative justice is one option for universities to pursue: they can engage relevant parties in a conversation focused on understanding what happened and how harm can be mitigated, with a view to determining accountability and shaping the future. This doesn’t mean that universities have to be arbiters of criminal justice, but it does allow a mechanism for survivors seeking healing to work towards resolution. Some overseas universities have effectively implemented this in their grievance policies, and others in Australia, such as RMIT, are establishing this process at present.

Critics of the AHRC Survey have noted that rates of sexual assault at university are lower than in the general community, as if this should absolve universities from taking action on a wider social issue. On the contrary, when chances for justice through the legal system are miniscule, universities shoulder a burden to provide their students with services, support networks and restorative measures that survivors cannot find through other avenues. This should apply whether assaults take place within a university setting or not. The same is true for workplaces and schools, which have often jumped to disbelieve the claims of women, or have been slow to act in their defence.

The failings of the legal system as it stands means there is a dearth of official mechanisms through which it is possible for women to heal and find justice. Until this is overhauled, other institutions must step up.

NSW Rape Crisis Centre: 1800 424 017