The rights and wrongs of the courtroom Print E-mail
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 complainants.

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 accused.

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.