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Edition 56

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Essay

Young lady, that’s inappropriate

How the legal system works against women

AFTER GRADUATING FROM law school, I spent a full and disturbing year working as a judge’s associate in the District Court of Queensland. The role required silence and discretion, and each week I sat, mute and powerless, watching things unfurl in front of me – both in and out of court – that made me want to get up and run. Forever the youngest in the room, often the only female, things that were normal to the seasoned lawyer unsettled me. I used to think all the time: Is anyone else seeing this?

Each week, there would be a new trial and a handful of new defendants to sentence, almost every single one of them a man who’d done horrific things to a woman or child. The judge I worked for was a very good man, and described sex crimes as being ‘the bread-and-butter of the District Court’. Defendants would largely deny all charges; jurors asked the same antiquated questions about definitions of consent. As the year progressed, processions of women were reduced to tears during cross-examinations by older men. I wanted to jump up and object, both for their honour and mine. Asked about what they wore, when I too had worn a miniskirt on the weekend. Asked about contraception, when I too was on the pill. Asked about how much they drank, when I too had lost count. Asked why they didn’t just yell out or call for help, when I knew full well how hard it was to fight the panicked ‘freeze’ of being exposed to sudden and unwanted male attention.

Most judges and barristers were men. Most of the cops and expert witnesses were men. Tony Abbott was prime minister and, for a while, minister for women, and there were barely any women in parliament. I had to explain what ‘rape culture’ was to a sceptical young man who was also a judge’s associate – who apparently had many feminist friends – the morning after I was aggressively yelled at while walking home alone the night before. I called my boyfriend straight after it happened, shaking.

‘I’m right next to a place where a woman was raped two years ago,’ I said, and asked him to stay on the line until I got home.

An old barrister I used to work for told me he was worried about the ‘feminisation of the legal profession’, and I waved it off until a young male colleague made repeated inappropriate comments about my friends’ breasts at group dinners after work.

Patterns were emerging. Anxious that I may have been falling victim to confirmation bias, I began to research. I waded into the Australian Bureau of Statistics, the Australian Institute of Criminology and my old textbooks. I found that no disclaimer was necessary for my generalisations because the statistics back me up: every year, men are committing fewer violent crimes against men, but more violent crimes against women; young women are most at risk because the system wasn’t built to listen to them; the status quo is mostly comprised of old men who benefit from this injustice; and, most importantly, there is much we can do, easily, to make things better.

 

THE AUSTRALIAN INSTITUTE of Criminology’s most recent paper on the perception of crime reported an inverse relationship between what most Australians think about crime rates and actual crime rates. Public perception is that society is getting more dangerous, when in reality fewer violent crimes are committed. William Milne, from the Australian Bureau of Statistics, reported in July 2016 ‘this is the fourth consecutive year in which reports of homicide and related offences have fallen’. There were fewer robberies overall, each year, since 2003, and homicide was at a six-year low.

Interestingly, however, the AIC noted a difference in perceptions of crime by gender: significantly more women than men reported beliefs that ‘a lot more’ violent crimes were being committed compared to previous years. Similarly, sticking out in uncomfortable contrast to the trend of a decrease in violent crimes, Milne noted: ‘There were 21,380 victims of sexual assault recorded by police during 2015. This was an increase of 3 per cent on the previous year, and the highest number of sexual assault reports we’ve seen in six years.’

In Australia, more than four in five sexual assault victims are female, and young women between the ages of fifteen and nineteen are seven times more likely to have been a victim of sexual assault than the overall population. It’s a similar trend for the victims of attempted murder: every year since 2011 there are fewer male victims and more female victims. The AIC suggested that the ‘gender difference [in perceived crime rates] may reflect differences between males and females in their respective fears of becoming victims of different types of crime’. These figures seem to suggest that women know precisely how dangerous their world is and, therefore, are quite logically more afraid.

It could be that women may just be more likely to report incidents of sexual assault each year. This is less of a consolation when considering the number of violent sexual crimes against women that are never even reported, let alone processed. And dismissing the increasing reports of sexual assault doesn’t speak to the physical assaults committed against young women. As well as an alarming increase in attempted murders, the rate of men assaulted or threatened has decreased by 2.5 per cent over the last six years compared to a decrease of only 1 per cent for women.

These issues are intrinsically connected. A generational disconnect places young women and girls in the crosshairs of older men, while that very same power imbalance renders them too afraid and disillusioned to report crimes done to them. I once heard a police officer say, ‘Oh, so it wasn’t rape then, just an assault. Well, not “just”, but you know what I mean.’

 

SO MANY ELEMENTS of society and the law interconnect in a darkly ironic way for young women. I was raised by a working mother who still bore the brunt of household duties and who taught me to believe that my education was just as important as my bother’s. In my years at university, then in the workplace and justice system, however, I saw women being left out in the cold when the freedoms for which their mothers fought resulted in danger. University colleges only became co-educational in the 1970s and 1980s, and it seems that forty years isn’t long enough for a lot of people to believe we have a right to be there, alongside them, learning safely.

Helen Garner’s first published work of nonfiction, The First Stone (Picador, 1995), was about two young female university students making sexual harassment allegations against an older male college master in 1991 (the year I was born). The copy I have was gifted to me by a dear friend, who sourced a first edition from a rare bookstore, and inside its pages I found two yellowing newspaper clippings from 1995 – just weeks after the book was published. The articles detail people’s anger at Garner’s apparent disapproval of the actions of the students who sought legal recourse for being touched against their wishes. One of the most famous and frequently quoted lines in the book reads: ‘He touched her breast and she went to the cops? My God – why didn’t she get her mother or her friends to help her sort him out later, if she couldn’t deal with it herself at the time?’

Combined with Garner’s frequent use of the word ‘timid’ in relation to women who can’t ‘deal’ with these things themselves, she seems to display a distinct lack of sympathy for the two young women at the centre of the story. To me, there is nothing less timid, and nothing more admirable, than a young woman going to the police when she has been touched without her consent. I should know, I saw hundreds of their brave faces when I was in court, and I was in awe of each of them.

In an interview with Michael Harden in 1995 for Southern Cross, Garner said:

I think there is a tendency among some feminists to refuse to make the discrimination to keep that broad spectrum of male behaviours. They want to telescope it so they can fit it into the rubric of ‘violence against women’. And so you find a bloke that puts his hands on a girl’s bum at a gig and that is called violence. In no way can that be called violence…

Given the number of years that have passed, holding Garner’s views up against my own seems unfair and pointless. But I wanted to draw attention to her as an example of how times and opinions should, and do, change. Garner frequently said that she was worried she was too old, or perhaps out of touch with the experiences of young women.

Twenty-five years on, and universities still seem to be a battlefield for the acknowledgment of sex crimes against young women. In early 2016, a number of reported incidents at the University of Sydney catapulted the issue of sexual violence into the mainstream media. Facebook groups and journals that ‘slut-shamed’ students were made public, and several individuals came forward with stories about sexual assault complaints being mismanaged by university reporting systems. One young woman, Emma, told The Age that because she didn’t want to go to the police, she continues to bump into the man she alleges assaulted her on campus.

At the end of 2016, the Australian Human Rights Commission closed submissions on a landmark study into sexual assault on university campuses, the report for which is expected to be released in early-to-mid 2017. The president of the AHRC, Gillian Triggs, went on Triple J in August 2016, less than one week after officially opening the online portal for the report, to say that one hundred and fifty ‘deeply disturbing’ submissions from current or former students had already been received. ‘It’s almost as if the dam is bursting, people want to talk about this. These recent submissions are often prefaced by the remark, “I didn’t report this, but…”’ Sex discrimination commissioner Kate Jenkins told Pro Bono Australia about the submissions in August of 2016: ‘We hear anecdotally that the responses are not always good, that people don’t always feel safe reporting, that they don’t find the process of reporting positive, they find that quite traumatic.’

In all my digging through the ABS I was not able to uncover any statistics about the safety of university students. A university college or dorm is classified under the broad heading of ‘residential location’ for victim statistics and is therefore grouped with other critical data deserving of unique attention, like family violence. This is particularly frustrating given crimes are already mapped by type and location, and that this information is publicly available simply by googling ‘Queensland crime map’ and clicking the first link. The issue is not with privacy or logistics, but with perspectives and priorities. The system of on-campus reporting was not originally designed with women in mind, and the AHRC report will provide advocates with the data required to prove that young women are suffering because of an archaic system. They are encouraged to venture out into this historically masculine space, but apparently must fend for themselves when there.

What a more detailed analysis of these young female victims reveals is that they are most at risk in a residential location, from someone they know, and that they are mostly raped and assaulted ‘without the use of a weapon’. When a young woman is in her bedroom and her mother’s new boyfriend enters after the rest of the family has gone to sleep, he does not need a gun. He doesn’t even need a butter knife. He has been raised with all he needs. Structural power imbalances, ignorance or acceptance of rape culture, plus blatant sexism are all weapons. In one trial, I listened to a man caught in his stepdaughter’s bedroom defending himself with the excuse that he’d been ‘chasing a mouse’ with the lights out, with his bare hands. He appealed his guilty verdict twice, meaning that young woman had to justify, repeatedly, over years of proceedings, why she didn’t ‘just call out’ when she was attacked. When the jury found him guilty and he was sentenced, the court heard that he had previously been convicted of raping a woman in a public toilet when he was eighteen. In 2013–14, across all Australian courts,
70 per cent of those accused of criminal offences pleaded guilty, but that rate dropped to about 30 per cent for sex offences.

 

THE ABS HAS also much to tell us about perpetrators of crime, and it turns out that the median age of offenders varies quite a lot depending on the type of offence committed. In 2016 it reported that youth offending is decreasing but, by contrast, sexual assault perpetrators are second only to killers as the oldest age group who commit serious crimes. The average sex offender is thirty-two – double the age of the average victim.

This recurring pattern of young women versus older men is not coincidental. Until the 1980s in Australia it was legally impossible for a man to rape his wife; the marriage bed was considered a husband’s right. The people currently in positions of power in the legal and justice system grew up in a time where the benefits of having a devoted mother then devoted wife were birthrights.

Queensland Police Service Commissioner Ian Stewart recently announced a directive that the police were to recruit 50 per cent men and 50 per cent women, but as with most organisations, the top few rungs of the service are sausage-fests. In 2015, total police personnel was about a third female, but in the top six active ranks (from one male commissioner through to fewer than one in ten female inspectors) it’s 8.8 per cent female. ‘We’ve been trying to encourage a steadily growing number of female officers over the last couple of years, but it seems we still struggle in some respects to get the numbers that will accept our office,’ Commissioner Stewart said when he announced the new equal-employment directive in March 2016. It’s not outlandish to suggest that a distinct lack of females in high positions in an organisation has an effect on the culture and priorities of that organisation.

Commissioner Stewart was sworn in as a police officer in 1973. Women weren’t allowed to be fully sworn and uniformed officers in Queensland until 1965, and all eight of them had the letters ‘PW’ on their badges, just in case it wasn’t obvious they were, in fact, police women. In 1971, legislation was introduced allowing married women to serve in the Queensland Police Force, but in 1987 the legislation was amended so that the then-commissioner held discretion over the final decision as to whether the married female would be accepted. It was the same year the Queensland police had other matters to deal with – the commencement of the Fitzgerald Inquiry. A QPS officer aged thirty-five in 2017 would have been in primary school when their mother may have been refused employment on grounds of gender.

Present-day conduct suggests there’s still a long way to go. In January 2016, the Gold Coast Bulletin reported that eleven officers from the Gold Coast and Logan had been suspended in the previous two years after serious allegations were made about them, ranging from domestic violence to possessing dangerous drugs to sexual harassment. At that time, Queensland Council for Civil Liberties Vice President Terry O’Gorman told the Courier-Mail:

I would say there is a deliberate, high-level media strategy by police to put out uninformative press releases on a discreet basis and hope no one in the media will draw the threads together to discover significant trends, like eleven officers being stood down from one region all in a row… It prevents people from looking at the bigger picture.

Research commissioned by the Office of the Status of Women in 2004 supports what most of my peers would love to yell at the top of their lungs: that only a small proportion of sexual assaults enter the criminal justice system, and those that do face a range of barriers that mean few perpetrators are ever charged, let alone prosecuted or convicted. Case attrition is highest at the police stage. In 2007, the AIC estimated that less than a fifth of sexual-offence incidents reported to the police resulted in charges or criminal proceedings.

On 30 January 2017, Australia’s first female Chief Justice of the High Court was sworn in, but in its 113-year history there have only been five female judges. In Queensland, only seven of twenty-seven Supreme Court judges and nine of forty-one District Court judges are women. Following the 2016 election, there were only thirteen Coalition MPs in the House of Representatives – the lowest rate in two decades. What all this means, bundled together, is that mostly men make the laws, mostly men disseminate the laws, and the separation of powers by gender in Australia still stands.

IN HER BOOK The First Stone, Helen Garner discusses the two university sexual assault complaints with some of her friends: ‘And then someone said what no doubt we had all been thinking: “Look – if every bastard who’s ever laid a hand on us were dragged into court, the judicial system of the state would be clogged for years.” At this we laughed, in scornful shrieks.’ Garner may have laughed at the idea, but if the AIC’s estimates of non-reporting are to be believed, and the rate of assaults being reported are increasing every year, the problem is a literal one. Make no mistake – services are already stretched. If a woman’s complaint is taken seriously and charges are laid, she can expect to wait at least a year to find out if the matter will even proceed to trial or not. The system benefits from women not going to the police when they’ve been assaulted. Our Watch (an organisation established for evidence-based advocacy for violence against women and children) reports that one in five women in Australia has experienced sexual violence. The system would not merely clog if each of them came forward – it would collapse.

The second most likely point of case attrition is when prosecutors decide not to proceed with a sexual assault matter. A woman’s perceived credibility is critical to a prosecutor’s estimation of probability of success at trial, and therefore whether or not the prosecutor chooses to proceed. Cases are significantly more likely to proceed when the complainant is injured, has physically expressed non-consent, when the defendant is non-Caucasian, and when the defendant is a stranger. The AIC found that jurors believe many of the ‘myths’ that surround rape: they had strong expectations about how a ‘real’ victim would behave before, during and after an alleged sexual assault, and these expectations impacted on their perception of the complainant’s credibility. The issue with expecting rapes to be violent, causing injury, with weapons, is that we know that most young women are offended against indoors by people they know without a weapon. Logic follows that the vast majority of young women have all the odds stacked against them. They are the most common victims, and yet do not ‘fit the bill’ of what a victim should look like.

The same faulty logic applies to the fact that, on average, one woman a week died of intimate-partner violence in 2016. Quentin Bryce’s report Not Now, Not Ever: Putting An End to Domestic and Family Violence in Queensland made one hundred and forty recommendations. One of which was for strangulation to be a specific offence because research showed that as acts of intimate partner violence escalate, strangulation was often the penultimate violent act before homicide. As it is impossible to prove intent to kill by strangulation, defendants could not be charged with attempted murder, and as there was often no lasting damage, the action could not even be classified as grievous bodily harm. The result was that a man could strangle a woman in her own home and get charged with common assault, if at all. In the seven months after non-lethal strangulation became a separate criminal offence in Queensland in April 2016, the Courier-Mail reported more than five hundred allegations of non-lethal strangulation were made. An important factor in contextualising this issue is that Our Watch lists young women aged eighteen to twenty-four as being the most at risk of domestic violence.

 

AMONG ALL THIS foul human behaviour, it is encouraging to know that several straightforward solutions exist. In terms of legislation, implementing the rest of the recommendations in the Not Now, Not Ever report would be the most obvious place to start. Queensland could also choose more progressive definitions of consent, similar to those in New South Wales. The idea of recklessness is used in many other areas of law in Queensland, and is used in sexual assault legislation in other states. It would lay down a base-level expectation that parties engaging in sexual acts are not indifferent to whether or not the other person is as ‘into it’ as they are. Some other states at least ask a few questions of the accused: ‘What did she do to make you think she wanted intercourse?’

In Queensland, if a man gets inebriated he can use it as evidence to support his claim that his sexual partner consented. This is because ‘mistake of fact’ is a defence – that if a person ‘honestly and reasonably believed’ there was consent, they cannot be guilty of sexual assault. In other states, a defendant’s voluntary intoxication working in his favour is plainly not allowed. There are few other criminal offences where a person is less legally culpable when drunk; the premise offends basic principles of justice and has been updated in other parts of Australia. A paper in the British Journal of Criminology, ‘Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants’, found that participants in a simulated trial and in focus groups tended to attribute responsibility for the ensuing sexual intercourse to the complainant when she had consumed alcohol, despite understanding that alcohol can impact on the ability to offer meaningful consent. It seems that whereas men can only benefit from telling a courtroom they were drunk, women have much to lose from the same admission.

A shining beacon of hope for the police-level approach comes from an officer in Oregon in the US. Carrie Hull has developed a program called You Have Options, which made simple but huge changes to the way sexual assault victims accessed police services. Hull told a journalist from Vice’s women’s-focused channel Broadly last year that although she’s ‘not the most popular person in law enforcement’, the first year the program ran the department saw a 103 per cent increase in the reporting of sexual violence. ‘We were shocked. We’d hoped we’d get, like, 10 per cent.’

The premise of You Have Options is simple: giving complainants control over how the police proceed with their matters. People who contact the police are given three options: they can lodge an information-only report, or request a partial or full investigation. On the You Have Options website, certain messages are abundantly clear: Report and have evidence collected REGARDLESS OF YOUR DECISION TO PROCEED with an investigation. This approach would help with one of the other issues juries have with rape myths – that if a woman has really been assaulted she will report the matter to the police instantly. ‘Inexplicable’ delays make juries wary. If Australia had something like the You Have Options program, women would be able to register their complaints immediately, knowing that no further steps would be taken until they were ready. If the matter did eventually proceed to trial, the woman would be on record as having come forward without delay.

A particularly frustrating point is that we already know all this. In 2005, a study was conducted by the AIC where women who had been sexually assaulted but did not get a forensic medical examination were asked why they did not. Almost half said that if they were able to make a report to police about the assault and get a medical test done without being identified, they would have come forward. We have long known that anonymity is key, that women are afraid of being known and outed as complainants – again, because they have so much to lose. Child complainants have strong and strict laws protecting their identities. In Queensland courts, child complainants of sexual crimes are also automatically given permission to pre-record their evidence in a room where they have a support person and they don’t need to see the defendant. Women, however, have to make special applications and prove certain special conditions for the same sympathy. Defendants are legally presumed innocent, and children are morally presumed innocent, but women cannot claim either high ground.

Women like Hull, and our own Quentin Bryce, do the heavy lifting when it comes to ‘justice’ for women in the ‘justice system’. I am in awe of their strength. It is borne of the same defiance I saw in every single young complainant testifying in court in my year as an associate. Our mothers and their mothers lit those fires, and my young friends and I are committed to spitting kerosene on the flames. If I burn my bridges to the legal profession in the process, so be it.

 

 

References

 

Australian Bureau of Statistics. Personal Safety, Australian Bureau of Statistics, (2012). Available here: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4906.0Contents2012?opendocument&tabname=Summary&prodno=4906.0&issue=2012&num=&view

Australian Bureau of Statistics. Recorded Crime – Offenders, Australian Bureau of Statistics, (2016). Available here: http://www.abs.gov.au/ausstats/abs@.nsf/0/DA308C67766C3735CA257751001BD477?Opendocument

Australian Bureau of Statistics. Recorded Crime – Victims, Australian Bureau of Statistics, (2015). Available here: http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4510.0~2015~Main%20Features~Victims%20of%20Crime,%20Australia~3

Australian Bureau of Statistics. Reports of sexual assault reach six year high, Australian Bureau of Statistics, (2015). Available here: http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4510.0~2015~Media%20Release~Reports%20of%20sexual%20assault%20reach%20six-year%20high%20(Media%20Release)~19

Australian Institute of Criminology, Guilty Outcomes in Reported Sexual Assault and Related Offence Incidents, Australian Institute of Criminology, (2007).

Cooper, E. Human Rights Commission Launches Landmark Uni Sexual Assault Study, Pro Bono Australia, (2016). Available here: https://probonoaustralia.com.au/news/2016/08/human-rights-commission-launches-landmark-uni-sexual-assault-study/

Davis, B & Dossetor, K. (Mis)perceptions of crime in Australia, Australian Institute of Criminology, (2010). Available here: http://www.aic.gov.au/publications/current%20series/tandi/381-400/tandi396.html

'“Deeply disturbing” responses to uni sexual harassment survey', Human Rights Commission says, Hack – Triple J, (2016). Available here: http://www.abc.net.au/triplej/programs/hack/sexual-assault-on-campus/7802588

Facts and figures, Our Watch. Available here: https://www.ourwatch.org.au/Understanding-Violence/Facts-and-figures

Finch, E, Munro, V. Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants: The Findings of a Pilot Study, British Journal of Criminology, 45 (2005). Available here: https://academic.oup.com/bjc/article-abstract/45/1/25/343824/Juror-Stereotypes-and-Blame-Attribution-in-Rape?redirectedFrom=PDF

Houghton, J, Pierce, J. At least 11 police have been suspended from the Gold Coast and Logan after alleged complaints, Gold Coast Bulletin, (2016). Available here: http://www.goldcoastbulletin.com.au/news/crime-court/at-least-11-police-have-been-suspended-from-the-gold-coast-and-logan/news-story/ae5403f0b1279f400f8353ba5671690b

Kale, S. The Cop Pioneering a New Approach to Reporting and Investigating Sexual Assault, Broadly, (2016). Available here: https://broadly.vice.com/en_us/article/the-cop-pioneering-a-new-approach-to-reporting-and-investigating-sexual-assault?utm_source=broadlyfbus

Lievore, D. No Longer Silent: A Study of Women’s help-seeking decisions and service responses to sexual assault, Australian Institute of Criminology, (2005)

Lievore, D. Prosecutorial Decisions in Adult Sexual Assault Cases: An Australian Study, Australian Institute of Criminology, (2004).

New domestic violence law gives voice to those in need, Courier-Mail, (2016). Available here: http://www.couriermail.com.au/news/opinion/new-domestic-violence-law-gives-voice-to-those-in-need/news-story/ae79376aba8b37059ce15e6b6da982ea

Personnel – Annual Statistical Review, Queensland Police Service, (2015). Available here: https://www.police.qld.gov.au/corporatedocs/reportsPublications/statisticalReview/Documents/personnel.pdf

Ruling set to change face of policing, Courier-Mail, (2016). Available here: http://www.couriermail.com.au/news/queensland/more-women-officers-ruling-set-to-change-face-of-policing-in-queensland/news-story/3450f3a1dc83b7a8435f737ca6fb58f0

Statement of Witness, Queensland Police Service, (2011). Available here: http://www.floodcommission.qld.gov.au/__data/assets/pdf_file/0010/7885/QFCI_Exhibit_373_-_Statement_of_Ian_Duncan_Hunter_Stewart.pdf


From Griffith Review Edition 56: Millennials Strike Back © Copyright Griffith University & the author.

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