The Australian Bureau of Statistics estimates almost one in five Australian women will be sexually assaulted at some point in their lifetime. But according to data from Centres Against Sexual Assault (CASA), less than one per cent of those crimes will ultimately result in conviction. As NSW looks to reform sexual assault and child sex crime reporting laws, author and sexual assault survivor Bri Lee discusses the barriers victims face in what she considers to be a sexist and racist criminal justice system.
Consider the women in your life. Your sisters, daughters, mothers, friends, colleagues. Picture their happy faces. Now consider the odds that, statistically speaking, one in five of them will be sexually assaulted in their lifetime.
Those are the terrifying odds that the Australian Bureau of Statistics (ABS) has estimated women in Australia face, following results of a national survey of more than 21,000 people aged 18 years and over that was published in November 2017. The 2016 Personal Safety Survey showed one in two women had been sexually harassed in their lifetime, and a shocking 17 per cent of women had fallen victim to sexual assault.
But while the ABS data shows sexual assault is rampant, it also shows avenues for women seeking justice for their attackers are ineffectual. Less than 20 per cent of victims will report the crime to police, and only 17 per cent of that tiny proportion will achieve a conviction.
“We have statistics from Our Watch showing just how many women have survived instances of sexual interference, but I really believe the justice system has no idea how colossal the problem is,” says author, journalist and qualified lawyer Bri Lee (pictured). “I think it would start collapsing if all the people who were victims came forward.”
She pauses, then adds, “And I will do everything I can to encourage that collapse.”
Lee has a very personal understanding of the challenges women face when reporting sexual assault crimes. Her debut book Eggshell Skull, published in June by Allen & Unwin, traces her experience in reporting an historic child sex offence committed against her – a journey that was nearly derailed multiple times in the two years it took between reporting the crime to police and reaching a court trial. That’s not even counting the years it took Bri to come to terms with her experience or tell her closest family members.
“The police investigation was this horrific rollercoaster over two years,” says Lee. “I received at multiple points information that he [the attacker] was going to plead guilty, then six to eight weeks later he would change his mind. They were making all kinds of outrageous applications at Magistrate’s Court level, just to try and get more delays and adjournments.
“Unfortunately, it is true that the longer you drag it out, the harder it is for complainants to stick in there.”
Only 19.8 per cent of sexual assault reports made in 2009 were pursued beyond the first 30 days of an investigation, according to the Australian Bureau of Statistics. For incidents of sexual assault recorded by police around Australia in 2002, offenders were proceeded against for just one in four victims.
It’s a statistical anomaly that Lee’s case ever reached trial. Especially considering that when she finally mounted the courage to report the assault to Queensland Police, her initial report was lost. It was only after she called the police back to check on progress that she found this out and had to make a second report.
Lee, who spent her first year out of law school working as a judge’s associate in the Queensland District Court, knew there were plenty of road blocks still to come if her case did reach trial. While travelling with the judge on circuit she had become well acquainted with the dubious tactics defence teams rely on to discredit complainants.
“Defence barristers are not supposed to use evidence about things like promiscuity or sexual history of complainants, but they get around it by asking what medication she’s on and bringing up the fact that the woman is on the pill,” says Lee. “There are so many little examples of behaviours that I believe are widely practised and are unethical. There are too many shitty loopholes.”
Sexual assault cases are notoriously difficult to prosecute because they are often committed in private, with little or no corroborating evidence other than the word of the complainant against the defendant. Historic child sex offences, like Lee’s, are among the hardest because survivors often don’t disclose the offence until decades later, when it’s more difficult to recall evidentiary details. A discussion paper published in 2018 by the NSW Department of Justice in the wake of the Royal Commission into Institutional Responses to Child Sexual Abuse notes that, in 2014, only 19 per cent of reported child sexual assault incidents resulted in the commencement of legal proceedings.
Defence teams know the difficulties of proving a sexual assault beyond reasonable doubt, and so try their luck against juries more often than in other criminal cases. According to the NSW Department of Justice, 73 per cent of defendants in serious criminal cases plead guilty. By contrast, just 35 per cent of defendants in sexual assault cases in the NSW District and Supreme Courts plead guilty, according to a 2007 analysis by the Australian Institute of Criminology.
“I have absolutely no problem in the starting point of any investigation being the presumption of innocence,” says Lee. “The problem I have is when a defence team goes the extra mile to tear the complainant apart when presenting an alternative set of facts.
“As a judge’s associate, I saw a system that was racist, sexist, classist. Every piece of privilege counts for the jury, and so does every source of marginalisation.”
Lee maintains she was one of the “lucky” complainants. She was educated, white, and mentally tough. But even she admits the re-traumatising effects of pursuing her case to trial almost killed her. Episodes of self-harm and bulimia – described with graphic detail throughout Eggshell Skull – illustrate why so many victims of sexual assault simply give up.
“I know it happens – my inbox is full of stories,” says Lee. “It’s crippling for most women. That’s the whole reason why I wrote this book. Because you couldn’t find a stronger, more educated complainant. And it still nearly killed me.”
If this story has raised concerns for you, contact Lifeline on 13 11 14.