Is There a Way to Protect the Rights and Interests of Complainants in Sexual Assualt Trials and Ensure that Defendants are Granted Their Due Process Rights?
The law relating to sexual assault has been amended to such an extent that there is now a serious risk of subverting due process, making it almost impossible for defendants to test witnesses meaningfully in court. Is there a way to protect the rights and interests of complainants in rape trials while also ensuring that defendants are granted their due process rights?
Throughout criminal law different crimes are punished with different levels of severity and are handled by the courts in different ways. The crime of sexual assault is a prime example of this, with the court making many amendments to the handling of these cases in order to protect the interests of the victims or witnesses of such serious and distressing cases. Sexual assault is defined as ‘any unwanted sexual behaviour that causes humiliation, pain, fear or intimidation’ (Victoria Legal Aid, 2010). Due to the severe and often traumatic impact that the crime of sexual assault can have on it’s victims, it is necessary for the law to make amendments in order to protect the witnesses and victims of these cases. However it has been argued that these amendments have negatively impacted on the defendants right to a fair trial, and thus are threatening their due process rights. Both the right of the accused to a fair trial, and the protection of the interests of the victim are very important in reaching the correct outcome in a sexual assault case, and we must find a way to simultaneously achieve both.
The term “amendment” refers to a change made to the law through a legislative or parliamentary process (US legal). Many amendments have been made in relation to sexual assault laws throughout Australia. These amendments generally relate to the treatment of complainants in the courtroom, particularly during their cross-examination, and attempt to make this process less difficult. These amendments include restrictions on who can approach the complainant, what questions can and cannot be asked, where the complainant and defendant are positioned in the courtroom and the amount of moral support given to the witness. During the trial the complainant has the ability to either separate themselves from the line of sight of the accused through the use of a screen, or if necessary the complainant may communicate with the court from another location via electronic means such as closed circuit television (Victoria Legal Aid, 2010). The complainant can also be accompanied by friends or family as moral support during the trial, particularly throughout the cross-examination (Victorian Consolidated Legislation, 2009). Whilst the complainant is giving their evidence only certain necessary people are permitted in the courtroom such as the judge, defendant and lawyers for both the accused and the complainant, all others must be authorised by the judge (Victorian Consolidated Legislation). If they desire, the complainant can also have the barristers and judge remove their wigs and gowns, and only address the complainant from their seat whilst the complainant is being questioned. Other amendments to sexual assault trials include the restriction on questions allowed to be asked or topics that can be broached. The complainant may not be asked questions about their sexual activity or chastity prior to the assault (Australian Institute of Family Studies, 2011). Any evidence which suggests that the complainant was sexually active, the use of any medical records or records from a counsellor are also prohibited, as well as anything else that the court finds scandalous (Australian Institute of Family Studies, 2011). Other issues that may not be broached by the defendant are those involving the complainants clothing or consumption of alcohol prior to the assault (Australian Institute of Family Studies, 2011). There have also been amendments relating to what a judge can and cannot say to a jury. These include that the judge cannot suggest to the jury in any way that the complainant in a sexual assault case is an unreliable witness. These significant amendments that have been made to the law regarding sexual assault have been put in place for the protection of the complainant, however it must be noted that these many amendments have made it increasingly difficult for defendants to test complainants meaningfully in court, and thus may be seen to infringe upon the defendants due process rights.
Such amendments to sexual assault laws are necessary for several reasons. The legal process, in particular the cross-examination, is exceptionally difficult for the complainant in a sexual assault case. The complainant is subject to discussing intimate and often traumatic subject matter, which can be very distressing. The victim is often subject to answering many private and upsetting questions for up to two hours (Drabsch, T. 2003). It was shown in studies that while the cross examination in a sexual assault trial can be the most distressing to its complainants, they are also on average twice the length of cross examinations in assault trials (Drabsch, T. 2003). Another aspect that makes testifying in a sexual assault case more difficult for a complainant is that they are often the sole witness in the case, and thus much of the credibility for the case is dependant on their cross-examination. The legal process does not only cause harm to the complainant at the time of their cross examination. It was shown in a study that 89% of complainants in sexual assault trials showed signs of ongoing distress after the conclusion of the case (NSW Sexual Assault Committee 1993). This shows yet another reason why the amendments to sexual assault law were necessary, in order to prevent further suffering during an already traumatic process. These amendments are also necessary in order to encourage victims of sexual assault to testify, and not to be put off by the gruelling legal process. The reluctance of victims of sexual assault to testify has become an increasingly large issue, with victims afraid to testify due to fear of not being believed; being unsuccessful in their bid for justice, or simply due to the discovery of how difficult the legal process can be for a complainant (Drabsch, T. 2003). It has been shown in a survey that 57% of victims of sexual assault did not pursue legal action after they found out more about the legal system and how difficult it can be for sexual assault victims (Drabsch, T. 2003). The recent amendments made to sexual assault law are necessary in order to make the experience of cross-examination less traumatic for the complainant, and to encourage future victims of sexual assault to pursue legal action against the perpetrator rather than be scared off by the distressing legal process.
While the recent amendments made to sexual assault laws are necessary to protect the complainant throughout the legal process, they can also be seen to intrude on the defendants due process rights. Due process rights include the right to a fair trial with a lack of bias, the right to be heard by a jury of ones peers, the right to silence, the right to equality before the law and the right to be innocent until proven guilty (Re Minister for Immigration and Multicultural Affairs; Ex parte Lam, 2003). Article 6 section 3d in the European Convention on Human Rights and its Five Protocols states that everyone charged with a criminal offence has the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him (The European Convention on Human Rights, 1966). However the new reforms to sexual assault trials do not entitle the defendant to the same conditions as the witness receives, with the witness being entitled to be cross-examined via closed circuit television, an opportunity to available to the defendant. These amendments to sexual assault laws are not just present throughout Australia. In the U.S.A it has been argued that the defendant’s Sixth Amendment right to confront the witness against him has been violated by new reforms to sexual assault laws that allow the victims to be separated from the defendants through the use of double sided mirrors (The Journal of Criminal Law and Criminology, 1988). This is similar to issues in Australia where witnesses are allowed to be shielded from the defendants by a screen, or be in a different room entirely. As in the U.S.A this can be seen to infringe upon the defendants right to be treated under the same conditions as the witness. The restrictions on questions that may be asked of the witness as well as the various methods used to separate the witness from the line of sight of the defendant can make it difficult for the defence to test the witness meaningfully in court and thus subvert the due process rights of the defendant.
Both the protection of the rights of complainants and the upholding of the due process rights of the defendant are very important, and must be achieved. As I have shown, the trial process for a complainant in a sexual assault trial can be a traumatic experience, and many complainants experience significant difficulty when re-counting their experiences as a sexual assault victim. It is therefore valid that the law should strive to make the cross-examination process as easy on complainants as possible. Many victims do not pursue legal action after being sexually assaulted because of the strenuous legal process that it entails. Victims should be encouraged to pursue legal action against the perpetrators of sexual assault and thus measures to help encourage them to prosecute must be taken. We must therefore find a way to encourage victims to prosecute, and make the legal process as comfortable for them as possible, whilst still upholding the defendants due process rights. The recent amendments to sexual assault laws have succeeded in making the legal process less distressing for the witnesses, however they have infringed upon the defendants due process rights. These amendments include restrictions on the topics that may be broached during cross-examination, and on what may be said to the jury. There have also been amendments that allow complainants to be cross-examined from behind a screen or via closed-circuit television, and have allowed the complainants to have moral support present during cross-examination, both privileges that the defendant has not been granted. It is important to treat the defendant and the complainant in the same manner until the conclusion of the case, as the defendant must be viewed and treated as innocent until proven guilty. As the defendant has the right to equality before the law, then the defendant should be offered the same options as the complainant, particularly in regards to the presence of moral support. While the legal process has been shown to be supremely difficult for the complainant, it cannot be forgotten that it must be a gruelling process for the defendant as well, particularly if they are innocent, which under the law they must be presumed to be. The two main points in this argument are that the rights of the complainant must be protected and the court process be made as accommodating as possible, and that the due process rights of the defendant must be upheld and thus the defendant and the complainant must be held equally under the law. Therefore the amendments that have been made to make the legal process easier for the complainant must be extended to the defendant as well, making the two equal under the law.
The laws regarding sexual assault are very complex, as the issue at hand can be difficult to discuss, causing the legal process to be very distressing for everyone involved. The complainant in particular may be traumatised by the event and must therefore be protected under the law as much as possible. The recent amendments to sexual assault make progress to achieving this, by limiting the questions that the complainant can be asked, and by making the cross-examination process as comfortable as possible. As I have discussed, research has shown that 57% of women who were sexually assaulted decided not to go ahead with legal proceedings after researching the legal process that it would entail (Drabsch, T. 2003). Due to findings such as these it is very important to make the legal process easier on complainants as to encourage more victims of sexual assault to proceed with the case. However whilst making the legal process more bearable for complainants, it is important to take the defendants due process rights into consideration. It is important that the defendant and the complainant must be treated equally under the law, and that the defendant is seen as innocent until proven guilty. It is also important that the restrictions on the questions allowed to be addressed to the witness during cross-examination do not interfere with the defendants right to a fair trial, which includes the right to thoroughly cross-examine their witness. It is clear that there will always be difficulties in meeting both of these contrasting requirements, however the most important point to ensure is that both the defendant and the complainant are treated equally and fairly under the law.
Australian Institute of Family Studies, Australian Centre for the Study of Sexual Assault, 2011, Understanding the laws of sexual assault, date accessed: 29/03/11
Drabsch, T., 2003, NSW Parliamentary Research Service, Cross Examination and Sexual Assault Complaints, date accessed: 01/04/11
NSW Sexual Assault Committee, Sexual Assault Phone-in Report, Ministry for the Status of Women, Wolloomooloo, 1993, p 37., found in: Drabsch, T., 2003, NSW Parliamentary Research Service, Cross Examination and Sexual Assault Complaints, date accessed: 01/04/11
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 34 (McHugh and Gummow JJ); Peter Cane and Leighton McDonald, Principles of Administrative Law: Legal Regulation of Governance (2008) 128., found in pg 416, date accessed: 02/04/11
The European Convention on Human Rights, 1966, Article 6 Section 3d, found in , date accessed: 02/04/11
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Victoria Legal Aid, 2010, Sexual Assault: the law, your rights as a victim, Victoria date accesed: 29/03/11
Victorian Consolidated Legislation, 2009, Criminal Procedures Act SECT 133: Special Rules applicable for sexual offences, date accessed: 29/03/11