Op-ed: If a lawyer doesn’t understand the criminal justice system, how can we expect a jury to? 

This year is the year to finally protect victims of sexual assault, writes Sarah Rosenberg, Co-Founder and Director of With You We Can.

Did you know that a victim of sexual assault has no ability to press charges against their perpetrator?

Did you know that for police to arrest someone, there’s a minimum investigation time prior?

Did you know that the Office of the Director of Public Prosecutions is the complainant in criminal trials in this country, not the victim of the crime? 

Really clever people in my life don’t. They are well educated, have high-achieving jobs at all sorts of levels, and they don’t know the first thing about our criminal justice system.

Some of them are lawyers. Some of them have experience with the Office of the Director of Public Prosecutions. That is a problem. I’ll tell you why.

Victims go through hell to report sexual violence. Victims of any personal crime do, really. But when it comes to sexual assault, there’s an extra issue of agency – it’s taken away when one’s sexuality, one’s body, is violated, often in confusing, scary and violent contexts.

The victim might choose to reclaim some of that agency by courageously reporting the crime in an attempt to hold the perpetrator accountable. And then it’s taken away again, just like it was taken during their assault, just as they have chosen to reclaim it.

That’s why people say the process is re-traumatising – it’s got less to do with recounting assault over and over in horrific detail (although that very obviously contributes) and more to do with the victim having no control over the process. 

Victims feel in the dark, out of control and alone as a witness in the state’s case against their perpetrator. That’s right; it’s not even their case.

Any decision about whether police proceed with an investigation once a statement is signed is entirely out of the victim’s hands.

If the matter progresses to the Office of the Director of Public Prosecutions, which only the most convincing of evidence briefs do, there is very little involvement from, or communication with, the victim until a trial date is set.

The victim does not discuss what charges are certified, they do not attend court mentions nor hearings, they don’t choose which crown prosecutor will be assigned to the case and they don’t even meet them until a few weeks prior to trial if they’re lucky. 

There are some circumstances where a victim can halt the process by becoming a “hostile witness”, which is a term referring to a victim who chooses to ‘pull out’ of proceedings. Without their key witness (the person who experienced the assault), the trial rarely proceeds, and the state is forced to drop the charges.

This is what happened in the Bruce Lehrmann-Brittany Higgins trial – Brittany Higgins withdrew herself to protect her well-being.

Despite contemporaneous evidence, Brittany’s testimony was evidentially crucial to the state’s case against Bruce Lehrmann. 

Can you see; the victim is just one witness in the state’s case against a perpetrator.

Police have collected sufficient evidence to charge a perpetrator and handed that evidence to the state, who comb through it once again and determine that there is strong enough evidence to prosecute the perpetrator, who is a public safety hazard and needs to be trialled. It has literally nothing to do with the victim. 

R v redacted. The jury empanelled in the trial against my rapist would have thought the ‘R’ stood for ‘Rosenberg’.

It stands for Regina or Rex now that we have a King. But you didn’t know that, and neither did they.

The Judge gives them no direction, no guidance about the number of hours that went into investigating the perpetrator, nor the number of hands the brief of evidence passed through to be determined strong enough to make it to this point.

The Judge does not even clarify that this is the state’s trial. 

How can it be fair, how can it be legal, for an uneducated jury to hold a perpetrator’s fate and a victim’s justice in their incapable hands? 

With You We Can is a victim-led network demystifying the police and legal processes while ultimately working to improve them.

It draws together experts, advocates and services in the sector, as well as sex crime detectives and ODPP prosecutors.

And it’s not just for victims… 

Changing the rape culture that we live in is everyone’s responsibility, and education about the criminal justice system is one way to do just that.

If we create more understanding around our system, we highlight its limitations to a wider audience and become better placed to reform it by, for example, moving away from jury trials for cases of sexual assault.

If we normalise our understanding of the process, we change outcomes for victims everywhere.

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