The rights and wrongs of the courtroom
Sydney Morning Herald -- Monday May 23 2005
The rights and wrongs of the courtroom
New rules on the conduct of rape trials may not prove effective, writes Jocelynne Scutt.
Persuaded by recent rape trials that something is amiss, the NSW
Parliament has passed new laws to ease the courtroom trauma of sexual
offence survivors. Important as these measures are, they run the risk
of being undercut by entrenched views about rape based on old-fashioned
notions about the character of rape victims, excluding the public, and
limiting media scrutiny.
Earlier legislative change ensures that close contact in court between
the victim and the accused does not occur, and in a retrial after an
appeal, evidence from the initial trial is admissible to obviate the
need for victims to give evidence and be cross-examined all over again.
A host of further changes have been made, including disallowing
improper questioning during cross-examination and unauthorised copying
or circulation of sensitive evidence, evidence to be given in camera,
and simplifying and standardising the Criminal Procedure Act to protect
Sensitive information, such as photographs of rape victims' bodies, has
reportedly circulated on the internet. Preventing this makes sense; so
does standardising and simplifying the law, so extending earlier
reforms to all sexual offence trials, including confidentiality of
counselling communications and questioning of complainants by the
Providing for victims to give evidence in person, without eye contact
with the accused, rather than on closed-circuit television, is
important, too. But concerns arise with changes to cross-examination
and closed courts. Closing courts from public scrutiny should be
reviewed, as should restrictions on media access, which the latest
legislation limits to what the judges allow.
It is unfortunate that Parliament has found it necessary to pass fresh legislation for courts to disallow improper questioning.
The new provision says that questions can be disallowed or need not be
answered if humiliating, the manner or tone is belittling, insulting or
otherwise inappropriate, or the question has no basis other than a
sexist, racial, cultural or ethnic stereotype. Factors to be taken into
account include the ethnic and cultural background of witnesses, their
language and skills.
Spelling this out is worthwhile, but it does not really expand existing
provisions. The problem is not that humiliation was not mentioned in
the law already, but that prosecutors do not object to questions put to
victims in rape cases - whether misleading or unduly annoying,
harassing, intimidating, offensive, oppressive or repetitive,
hectoring, belittling, insulting in language or tone - and judges have
not stepped in to apply the existing law.
The problem lies with courts accepting badgering questions when rape
victims are cross-examined. In the 1980s, reforms clarified rules of
evidence so that irrelevant evidence should not be allowed in rape
trials and, where relevant, if it is prejudicial or interferes with the
jury's ability to find fairly it should not be let in. Nonetheless,
Bureau of Crime Statistics and Research studies show irrelevant and
inadmissible evidence about the victim, what she was wearing and so on,
routinely comes before the courts.
How do we know?
Media coverage has ensured that the public are alerted to what is
happening in the courtroom. The community should not be kept in the
dark about the way rape trials are run. Courts should not be immune
from public scrutiny. Closing courts when complainants give evidence in
rape trials and limiting media coverage means that just when women and
other rape survivors are vulnerable to harassing, intimidating,
offensive, oppressive, humiliating and repetitive cross-examination,
the community won't know what is going on. Victims are left in court
with their support, but without the public scrutiny vital not only to
their wellbeing but also to future complainants and the good conduct of
the justice system.
Women may believe closed courts are a good thing, yet rape survivors
will not give evidence in a vacuum. Some 25 at least - mostly male -
onlookers will be listening in: the jury of 12, the judge, judge's
associate, court reporters, attendants, solicitors, junior and senior
counsel, possibly runners on both sides, the accused.
If victims feel trials are humiliating, this is largely due to a
failure of judges to apply existing legal provisions rather than
whether or not the media is present.
Reactionary ideas about women as provocateurs because they wear
miniskirts, or that deserve what they get if they sleep naked or wear
red underwear will dictate what questions are allowed and what evidence
goes in, whatever the law says. If a judge believes these questions are
necessary, the fact that the woman experiences them as humiliating or
offensive won't disallow them.
New laws, without new heads on judicial shoulders, will make no difference to women's experience in rape trials.
The Government is to be commended for seeking to correct imbalances
giving accused persons more rights in sexual offences than in any other
trials. However, legislative change will make little difference as long
as the education program sorely needed for judges and lawyers is
missing, and firm application of existing law is absent. The problem
lies not with the law. It lies in the courtroom, with those who work in
the law, and who fail to apply it.
A barrister, Jocelynne Scutt was Tasmania's first anti-discrimination commissioner.