SARAH ROSENBERG: The Reality Of Reporting Rape

It's a lot is recorded on Gadigal land. We pay our respects to the traditional custodians of this land and to elders past and present.

We also would love to extend our respect to all Aboriginal and Torres Strait Islander people listening today and remind you all that sovereignty was never ceded and it always was and always will be Aboriginal land.

It's a lot isn't it?

Everyone, I'm here with an incredible advocate Sarah Rosenberg. Hello. How are you going? Hello.

We're here today to talk about all the advocacy work you do to help people navigate the legal system when it comes to reporting sexual assault.

But I'm sure that information reaches out to other other crimes as well. You have a online network for advocacy called with you we can can you explain what that is and basically how you got there.

Absolutely. So with you we can is a national resource hub like a one stop shop that aims to demystify the police and legal processes for victims of sexual violence very much while working to improve those process.

So those processes so systems change and advocacy is my mo it was born out of a national sector wide like stake holder mapping and consultation process where the need was established nothing like it existed or has existed.

And that actually surprisingly goes for a lot of countries as well. It aims to just be like a resource hub with input from advocates experts frontline services including police and prosecutors who they're seen as a conflict of interest if they're publicly acknowledged as giving information to victims of crime, which I think demonstrates the need pretty clearly.

But yeah, basically giving information and choice to victims who are courageously navigating the legal system is literally the bare minimum and I pretty much created the resource I wish I had because you went through a bit of an eye opening experience when you reported your own sexual assault but did result in an acquittal at the end we do have to say that.

But I guess your main advocacy and your main goal is to help people be able to report safely and to understand how the system works because the system that we have currently I mean I feel like it's too much to say that it's broken it's it's it's kind of like a shell of a system where we're different elements and different you know the DPP do they really cooperate with the police the police really cooperate with different different sectors of the police there's all these

there's a lack of structure even it seems and in my personal experiences growing up seeing people have to go through reporting domestic violence and sexual assault and deal with perpetrators that are so so adamant and so able to get the best defense and and the best lawyers and they're able to completely I guess

I guess war with the system and then simultaneously science victims it is so hard to know where to start and it's hard to know where to start even if we had a perfect system to even begin reporting because you are a traumatized victim and there's always pressure on victims to be the perfect victim and to have a clean slate and to be the people that are the most level headed in the situation despite the fact that we have the DPP the most traumatized it's like well you did this one thing wrong so how and your question on the standard

about that and so I want to get you want to talk about reporting and talk about how the legal system actually works because unfortunately it's one of those things where people don't have a data day knowledge about how this actually works the steps are taken until they're in it and that goes for all legal issues but like I've been saying the sexual assault element or even the DV element it adds a whole other layer of trauma and confusion.

So I would love to kind of I guess go through chronologically if that kind of makes sense the reporting process and what resources are helpful like things that you didn't know about when you were reporting what resources are there that you can you can ask for that you weren't offered and also what kind of bumps in the road that you feel like can be improved a little bit in your experience and an experience that you've learned about from other people that have contributed to with you we can.

So let me do it. I'm like let's I'm like let's just fix the system today the broken system but I feel like it's so important because people really don't know about these things and there's so much pressure on victims to report and reporting isn't that fucking easy yeah so let's start I guess with a report let's start right at the beginning what happens if you are sexually assaulted or you are raped.

What is the process when you go to the police how easy is it how hard is it obviously different for everyone different everyone's experiences but as a whole what are the processes that you are aware of people love to talk about how victims don't report and we know that 92% of victims don't report their most recent sexual assault.

But I think it's important to reframe it with the facts about how it's actually that victims try to report a lot of the time and police don't let them like it is so difficult to step foot into a police station like think about the amount of privilege you have to have to know that you'll be safe to know that you won't be misidentified to not fear.

We're putting it risk your visa status to not fear a police officer knowing your potential perpetrator in a close-knit community child removal all of these these things that and in and of themselves like horrific things but to even be able to safely step foot in a police station I think people don't think about just how difficult a decision that is in the first place.

And then what we know from from from the evidence from from literature in in the sector is that it's actually police disengaging from victims it's not victims not reporting like they're trying to

depending on the color of your skin what you're wearing who love what language you speak. Unfortunately, how you're treated is literally dependent on which officer you come across that day and you can imagine what it's like in sort of regional areas versus more metropolitan areas but

Unfortunately, it's kind of at the whim of the mood of the officer that you encounter and most often you are first talking to a duty officer who is usually the most junior person in the station they're not prepared they're not trained you think about the types of crimes that have been reported that day and then you walk in and they don't know what to do it's like above their pay grade

And

That's bizarre in it in and of itself it's like why are we doing that because should we not resourcing issue?

Yeah, that is a resourcing issue and realistically we should be having police officers trained kind of from the worst to the least impactful crimes it should be like okay the big ones we've got to cover murder rape child abuse domestic violence let's get those at least covered so we can all understand the big bad ones

Then let's go on to petty theft you know me let's go all the way through backwards but it's just they're not the same type of thing which is why so many different jurisdictions have specialist teams or task forces and specialist stations specifically but like in New South Wales we don't have that you just walk into a station and you have to hope that there is a specialist sex crime detective on call that day

who may or may not be able to see you and

by the time you even make a decision to make a statement because you can make an initial report before actually proceeding with a formal statement you might have spoken to and shared your story to at least three different people who are all writing notes a different set of notes each time

they're writing in shorthand they're you know frantically trying to get down what you're saying and writing words that makes sense to them to try and capture what you're saying but they're not your words and so if you get

what I'm implying like defense barrister is going to have a field day with those notes but that is the that is the norm.

So the police incompetency maybe on even competency that the capacity issues like I think it and this is something that I talk about a lot in my work is that so often many police officers are attracted to the job for power and they wield that power and they hurt people and they do a lot of a lot of hurt a lot of offices are just at capacity and overburdened and working in awful workspaces

like police stations look like jail cells they smell dank there are no windows everyone hates the coppers they hate themselves like they they might not intend harm

but that kind of doesn't matter like it doesn't take malice it just takes a system that does not take into account lived experience or the reality of victims lives and usually women's lives

and so it's just from the start you are you are thrown in blindly victims are so often blindsided by procedure like no one teaches you in school how to report reporting 101 and it's really weird because this is a big public institution that we rely on supposedly to keep ourselves safe if you believe in the carceral system

and no one no one teaches you what to do and so even when we talk about that myth of like you wouldn't question someone who reported a burglary

it's like actually even reporting a burglary is also really hard and that's like totally terrible it's like how like how do you do it no one tells you where to go

most people either call a station or walk in somewhere not knowing that the police station closest to where the crime happened will usually take carriage over the investigation so you should actually report there to save yourself repeating

no one tells you that a statement can take hours hours weeks months no one explains to you that police phone calls come from unknown numbers I have like a fear of unknown numbers still

it's just you are thrown into the thick of it and expected to navigate it alone at your most vulnerable and that is bizarre

I think information about what to expect is quite literally the bare minimum and a pamphlet with a couple of dot points about process that we know doesn't get it here to in practice does not cut it

absolutely not so what can happen is you can go to a police station and you can give your statement and they can say I'll actually the better police station for this is XYZ

having to do it two times well so if they've taken a statement which they are welcome they are welcome to do they can take the statement and then pass it on to the station

closes or they might to your face say thanks but no thanks you need to go to the station closest to where it happened and and start again and because people don't know about that initial report

for a statement like they're totally different things if you think about an initial report as more of like a canvassing of events hey here's what happened here's the name of someone it might create

it's like you're registering a name you might get an event number but nothing happens from there whereas a statement is like a very formal very very detailed document that is signed and once handed over like that is evidence

that it belongs to the state it is quite literally out of the victims hands we talk a lot about I get asked a lot about whether victims can sort of get off the bus and how in control they can be

obviously if you are the living embodiment of the crime and you are the the chief piece of evidence it's quite likely that a case is not going to proceed without you so if you want to tap out

the case will stop proceeding but technically you actually have no ability to to to make that decision like it's up to police because if there's confusion that you know when when

rape victims are reporting or when someone is on trial for a defending rape that it is pushed by the victim themselves but it's not she press charges she took him to court she was dragged there just the same she is doing

the state a favor by choosing very courageously to cooperate willingly as a witness but she is just a piece of evidence this is the the biggest thing that God I was recently at an international women's day event for the Australian British Chamber of Commerce and you can imagine the type of people in that

room really accomplished people in my life the most I've got the cleverest Godmothers of the more my mother was a lawyer not a criminal lawyer but she was a lawyer

everyone like consistently has no idea that victims of sexual offenses are the only ones in court without a lawyer like the accused gets a lawyer the prosecution represents this date and the victim gets like a pamphlet

so you have no one a lot of victims don't even get the pamphlet the pamphlet actually is quite rare to see the pamphlet where is the pamphlet where is the pamphlet

when you're in court if you are a victim then you aren't you don't have anyone advocating for you no so even though you are quite literally central to the case legally you're peripheral

like you are a passenger baby doll like start to finish you you are a piece of evidence and you are treated as such which for me

when I advocate like it does not make sense that supporting victims providing them dignity and participation and voice and and agency is seen as an add-on because those things aren't add-ons they are preconditions for the system working if your chief evidence which the case quite literally

really relies upon is ill-prepared and nervous and has no idea what to expect and is traumatized as well like like and I mean that's like the least a bit as well

anyone would be nervous even if you weren't the complainant right if they're not ready like you're not only like will a jury think they're not quite credible or like I don't know

the jury's like pick on the things like maybe you look a bit sweaty and oh a sweatiness means she might be lying like whatever it is

you're also like setting setting the case up for failure because they're just a sitting dark for cross examination

and they're going to get turned to to shreds absolutely and that can happen with this you know like you were saying this shorthand reporting as well

so back to the reporting process I think this is something that people don't understand there's a lot of owners put on to victims of all crimes but in particular domestic violence and sexual assault

and rape we have a lot of people going you should report it you should report it because that's the right thing to do and you should prevent other potential victims in the future

and we are guilted about it and told that you aren't doing enough and you know oh maybe get an AVO for DV for example I guess for rape as well

I'll get an AVO and that'll at least in the future if I do it again it'll it'll help the future victim

how many victims of homicide this year were murdered by men they had an AVO taken out against

exactly an AVO tends to just aggravate the perpetrator and I am I am not against getting AVOs but I guess what I'm saying is it's understandable that people don't try and get AVOs

and in the same breath it's understandable with the way the system is set up and the way that reporting is set up that people wouldn't want to report sexual violence

because anything can be used against you if you do get to trial right you like sneeze and it's used

and I think as well it's so important underlining this whole thing is the rarity that a perpetrator ever has to set foot into a courtroom

because the types of cases that proceed past police let alone past the decision to prosecute which is made by the director of public prosecutions

in every state and territory again it's not up to the victim the the cases that proceed are usually the cases that are in line with rape myths

like a white woman who is raped by a stranger who jumped out of her at night in a dark alleyway like it's not taking into account reality

and that reinforces those myths again absolutely absolutely and it's like the people who are most disproportionately harmed by sexual violence are the least served by the justice system

because of that because of these archaic myths that I mean you have to remember that rape used to be a property crime

like when we say the systems dysfunctional a lot of the sector sort of pushes back and says it's working exactly as it intended it's by men for men

and literally flipping a coin would be better do you really feel that yeah I really feel that right now without a few key reforms that I'm working on obviously

but yeah I do because right now we are prosecuting the wrong person like I think community thinks about the justice system

and is starting to talk about a little bit more and think perhaps a little bit more critically

and they know that cross examination is really bad but that's actually the the least of it you know like yeah it's bad and procedurally the whole thing is like fucked

and administratively it's a wonder that any victims survive long enough the delays to get to court

and you when you're up against someone who can be flanked by the best barristers plural that money can buy prepared for all of that time that the victim is sitting there

in the dark alone just waiting for a call from an unknown number for an updated about a case that supposedly would collapse without them

it's like the power imbalance is staggering and it's no wonder like victims walk away and we blame them for it

but they are completely legally unrepresented in the trial against their own perpetrator like and that doesn't even touch the surface of

they're also completely not informed like they are completely ill informed about the functioning of the system they're stepping into

in the thick of their trauma like legal jargon decisions being made about them without them

most victims are very shocked themselves to learn that they don't have representation

yes I mean I didn't understand that

misconceptions and myths about the functioning of the justice system are such an unignoled driver of rape culture

like people don't people need to like conceive of victims reporting as a public service

okay reporting as a public service a victim is willingly cooperating with the state

who was collected enough evidence of a person's guilt to think that they need to be prosecuted because they are a public safety hazard

it has nothing to do with the victim they have no say they can't call witnesses they can't object to heinous questions

being thrown their way they didn't even know what day they're expected at trial

like they are completely blindsided by procedure and they are completely rattled on the stand

and then we're confused about why cases are falling over like I think the burden of proof is one thing

and that's a different kind of worms but a failure to prosecute like that's something else entirely

that's now we're talking about tax pay our money here and civic accountability and like the integrity of our public institutions

so if a think about it if a crown prosecutor meets a victim the day before their trial

they learn that victim's name the day before and they learn that rapist name that alleged rapist name the day before trial

they are not familiar with the evidence they are they not no they get handed the brief yesterday

because it's all just basically like churning it out right you know to these individual people that are involved in this

to the victim for example this is a two year multiple year waiting process with all these hearings

and it sounds and it's all very scary and overwhelming and it's all like you don't want to go to court

I don't want to be involved so I don't want to risk being questioned and everything that I've ever done in my life

be put as evidence to prove that I'm not telling the truth but it is kind of just like a conveyor belt

but I didn't realize that they don't even know the evidence until the day before

because that is the stupidest thing you've ever heard how can I say that is crazy

how can a system operate effectively and do what it's meant to do if they're getting the brief of evidence yesterday

they like can't really get familiar with the victim's testimony let alone what other supporting evidence they're meant to be calling

they don't have time to plan a strategy to to find out things about the offender like lines of question it like

and then the offender has the right to silence versus the terrain over which questions in cross examination can

can rain is really extraordinary people really don't understand quite how dire it is like human rights go out

the window Australia does not care a defense bastard can have access to a victim's sexual history

counseling records including like their first disclosure of the rate in crisis on the phone

counseling records that go back to when they were a kid and their parents were getting divorced

medical records phone records internet history if you if you've had an abortion in the past

like stuff that you maybe haven't even told other people that are going to hear it on the stand

and the reason they're accessing those documents is literally to twist them in line with rate myths

and spout archaic shit like you've had an abortion and so that makes you sinful and therefore you I don't know

you've had an STI check that means you are sexually active your promiscuous you asked for it

and this still happens now this is happening to my friend right now this is happening every day

this is happening yesterday and this will happen tomorrow baby like this we are prosecuting the wrong person

and we're trying to find anything on them and the best barrisons in the country like you say someone can pay for the best barrisons in the country

at a whole legal team if they have the means and the prosecutor is left there and I guess it isn't the prosecutor's fault either

it's the system this is it sorry to jump in I wanted to sort of clarify that you know I think part of the misconceptions is people thinking

this is when you go to court it's you versus your the perpetrator the way the system works is that it's like it's the crown versus the accused

and you actually don't have anything to do with it at all it gets only in civil cases where it's actually it's you as an individual person

of course we think it's us first them like Lauren order says so we see people get charged on the spot like in movies and TV shows

and you see it in the news like I don't know there's a drug bust and the offenders are like

carved on the spot police have been collecting evidence of the person's guilt for months before a decision to charge is even made

the decision to charge itself the threshold there is is astounding as well people don't understand the weight of a charge

like it's not like an on the spot thing based off a single allegation

it is unless there's like some kind of discrimination or bias going on

if you see someone in cuffs for sexual violence you can pretty much guarantee that that person has done at least something

or there's enough evidence that it's worth at least looking into what is that threshold

so they look into it first they look into it first they won't charge unless they're pretty certain of guilt

it's like hours and hours of investigation the amount of hands it passes through

and then once a charge is laid it the brief of evidence gets handed to the director of public prosecutions

which is an independent statutory body in every state and territory that is responsible for prosecuting like serious offenses

and they will then sit there and comb through that brief again hours, hours, multiple hands

and decide whether to prosecute and there's a the threshold there is different to the police threshold

kind of doesn't exist because there is no mandatory duty to investigate sex crimes

which is work in and of itself but with the director of public prosecutions they'll proceed based on

is it in the public interest with a with a rate case you can pretty much guarantee that it is

because rate is culturally meant to be a no-no

we should be okay with a fair bit of it

and then it's about what's the likelihood of conviction like how convincing is is the evidence

and then it's like about as well a part of that is how credible will a jury find the victim

keeping in mind the people who are on juries are people like you and I who you know

until this morning had no idea that victims are totally unrepresented

and so plus like have their own biases

have their own biases like it's all and then they're a judge alone trial sometimes

judges are just as likely if not more likely same as any kind of profession

with that carries power to hold biases as well

like it's yeah it's the power imbalance is pretty staggering

it's not us first them it's the prosecution verse the accused

and the victim is quite literally a piece of evidence

it's crazy so in you saying that the police don't have an obligation to press charges

or even look into it does that mean that you have to if you are a victim

keep pushing and pushing along the way like safe

you do make a statement the police say yeah do you then have to keep checking in on them to go

what's happening with this what's happening with this is that the system that we currently have

absolutely victims have to advocate for themselves

and you can imagine how that feels the disbelief

the confusion at why a process you've been told your whole life works one way

isn't working the way you thought

the the safety piece about having to over and over contact them again

there aren't minimum standards and there's no legal obligation for them to proceed

so things are changing like so in New South Wales they've been working with

it's called exceptional clearance and that means an officer has to

off the bat collect collect an amount of evidence that is then

shown in front of like a panel and you have to say why you don't think this should proceed

it's got to be like you proceed until otherwise told like trying to like flip it

so that like you must investigate and here are the reasons why we shouldn't

not just like we're not going to do it just cause we don't think they'll be evidence

they have to look into it and they have to show why they shouldn't proceed

but that panel that that sits in front of is not independent as well

so it still could be like you have Joe blogs who is an asshole and beats his wife

and so and so he's his mate and so and so who I don't know hates women

or like whatever it is it's not a particularly like it's a well-intentioned policy

but I think the lack of independence still holds it back

and as well just in general the fact that it's still not legislated

that police have a duty to investigate

and if you ask any member of the public what the one job of a police officer is

it's to investigate crime so this don't pass the pub test

no and yeah and and and so people talk about victims with drawing

and it's like their their force to they're given nowhere to go a lot of the time

a lot of complainants like have gone through hell to report a sexual offense

they're not stupid they're doing it to the shrill sound of people claiming they've lied

and they're still proceeding and you know they're up against culture and stigma

and safety and well-being and all of the hazards that come with reporting

and that's just for a white person like let alone all the other things we've spoken about

and they are pushed out the door will not open for them

this first gateway into the legal system will not open for them

of the very few that report even fewer still progress to an investigation

fewer still to a charge fewer again to prosecution and then again to a guilty verdict

and and then you know a conviction or sentencing outcome

so it's it's pretty negligible

it's slim chances of actually getting a conviction

and the other thing that you know you did touch on but the way that this system is set up

seems to be reinforcing rape culture and victim blaming

and also reinforcing the oppression of minorities because if if a cop thinks that

you know a woman of color who was perhaps they were a sex worker

or perhaps they were drunk or using drugs or if you know someone is unhoused

they see that and perhaps as an individual they may believe her

but is it the case that they can think what's not going to go well in trial

so we won't even bother with this?

So there's this concept called downstream decision making

and that's when police make a decision based on guessing

what a potential future jury might think about the victim

and this is tricky because if you think about a well intentioned officer

it's like they're trying to spare a victim potential harm

that's not their job their job is to decide whether to charge or not

not to decide what a potential jury when we know so few even make it to a courtroom

will or will not think based on stereotype and myth on a victim

and so we see that through and through and through

like with police culture downstream decision making

and it's an overstepping like it's not part of their role

it's just first and foremost and not first and foremost

just like it's fact the state sees the crime as harm done to the state

not the body that endured it

and so if you think about like what that means

and how that kind of gives you an insight into the logic of the courtroom

it's just like an institutional echo of our responses to sexual violence

like they don't care about you they care what happens to the reputation of the person that did it

they don't care about you they care that this has happened

like our laws have been broken

it doesn't matter that you you were harmed in those laws being broken

like we talk about the prosecution representing the state

and for me that's really weird because I'm a member of the state

and it's just this bizarre framing and it just goes back to equality of arms

and like the rule of law and and all these big concepts

magna card are all of her

but for me in my opinion a victim's interests are the state's interests

arguably I should be your only interest because I'm the only reason

we're here prosecuting this this trial

yes it's it's why I am constantly talking about how dignity and support

and respect aren't optional add-ons to the process

they're preconditions for it working

absolutely it's so interesting the way that the system perpetuates rape culture

and rape culture perpetuates upholds the system

like when when you think about it even just when it comes to reporting at step one

as we're just talking about say if there is a woman of color for example

there's an Aboriginal woman and the cops think there's no chance to go through

due to pre-existing biases that means we see less women of color

or less marginalized women that actually make it a trial

so then that perpetuates the idea that women of color aren't able to be raped

or they aren't raped at these higher levels

and then that informs juries more so and then we have less of a chance

of a jury prosecuting someone when it's against a woman of color

and then back to square one against them when the next woman of color reports

or the next like I was saying sex worker reports

or the next person that isn't a quote unquote perfect victim

the next person that's had an abortion for example reports

they go well we can't get this through

so then we also have the added layer of the media

and we have the added layer of jury's understandings

and jury experiences and individuals experiences

we have the added layer of the person who has been accused of getting away with it

because it doesn't even get past step one

this really is the backbone to rape culture

not the antidote as it been sold

totally it's just it all just feeds itself

it's a culture of impunity that we're reinforcing

and it's almost as though the system was made

form and by men when rape was a property crime

because women were property

that's a crazy crazy thing to say isn't that wild?

what have you learnt and what have police officers

and frontline workers that have contributed to this this network that you have

what have you learnt in terms of how to report

what the and the thing is the system is so broken that there isn't a you know

a cover or we go if you do this you'll be taken seriously

but what advice is there out there because there are so many little things

things that a defense lawyer can hone in on

such as the way you reported the time you reported

where you as I said before were you drinking

what is the best way to have the best chance to be hurt?

we're not going to get there until victims have independent legal representation

in my lifetime I think until we're willing to blow the system up and start again

which I don't think will happen in my lifetime

so in my lifetime independent legal representation is the big

bowling ball that can pick up so many of these siloed failures

it is just about giving the victim someone who can

advocate for their interests inform them about what's going on

represent them when it comes to accessing their private sensitive

and confidential records

which mind you there is legislation in every state and territory that is

meant to protect at least some of those records counseling notes in

particular and only two states currently even attempt to enforce that

legislation really yeah so what are some examples of things that have

so you've heard that it happens yeah so victims can have their

counseling records accessed medical record sexual history

phone records internet records school employment all of these things

that have nothing to do with whether or not someone consented to a sex act

but why is it not protected if it's meant to be protected?

because there's no enforcement mechanism for the legislation

so I've been advocating for independent legal representation

since 2022 2023 now Australia lags behind so many jurisdictions

that have it in place and I'm not talking about like just England

and Ireland all like parts of Scotland like I'm talking about India

and Japan and South Africa ahead of us like it's kind of work

and I'm also not just talking about as I said like innovative

scandy systems you know like where they have inquisitorial systems

where kind of baseline are better for prosecuting sex crimes

or crimes against children like other common law countries

it is the norm everywhere else like start to finish

like from different that different countries provide

independently legal representation for different parts of the process

some right the way through start to finish some just at key

moments but the through line is that there are very few

countries that don't provide some kind of legal advocate for the victim

and the there is huge like impetus for it

it's like it's not just about even though it's not just about keeping the victim informed

and engaged and feeling like they can meaningfully participate

it's almost like that that's the least of it it's like belittling

because like you wouldn't be here without the victim

so that shouldn't be seen as an add-on

it's also about better substantive justice outcome

so if you think about your chief witnesses the victim

if they are better prepared better protected legislation

that's meant to stop defense from slandering them with rate myths

is upheld that helps the state's prosecution

and the opposite is like a victim who is fearful scared, vulnerable to defense

questioning that might be suggestible and have them like twist their words

told that they're promiscuous or that they're crazy

because they've seen accounts law

that in the eyes of the jury when that's not corrected

remember the prosecution doesn't advocate for the victim

they don't represent the victim so they won't object to these lines of questioning

that just like if anything it contributes to the defense's case

that the victim is not a credible witness and shouldn't be believed

yes but so why aren't the prosecution objecting because they are still in this case

I know right they're still meant to be prosecuted

even if it isn't a personal advocate for the victim

even if it isn't seen that way

don't you want a prosecution to be able to make sure it is a fair trial

isn't that their whole thing?

Wow logic man it's like these people need babysitting

so what happens is prosecutors might care but they don't represent you

and because of that they have to be impartial

there is a real fear

there's a real fear that objecting might make it look like

one they're not impartial and they're biased

two that they're hiding something

so sorry you can't do that line of questioning

that looks like the victims like hiding something

and that's because even amongst the people running the show

even amongst the prosecutors

there's a real misunderstanding of these rape shield laws

is what they're colloquially called which is about

the legislation that's meant to protect victims' private records

they're called rape shield laws in other countries

there's a real misunderstanding of it

in New South Wales and Queensland currently

the victims are meant to be given independent legal representation

just when it comes to the accessing of their private records

most of them are never referred to that scheme

prosecutors will claim they've never heard of the scheme

baristas will access those records anyway

and claim they've never heard of the scheme

the judge who should have heard of the scheme

will make a decision

yes you can't talk about this victims

passed with counseling

you can't talk about her medical history

it will go to trial there'll be a different judge presiding over trial

and so that decision just might not

flow through

flow through which is black because it's central to the prosecution

it's not just central to like upholding legislation

and upholding law which for some reason

I've learnt like is not black and white

like the law is not just the law

like we pick and choose what to enforce

and we see that laying out right now

yes with hate speech laws

and taking something seriously and others not

it's just bizarre because the entirety of the case depends on the credibility of the victim

because of the nature of how these crimes often happen

they're happening in homes

people we know that we think of friends that we trust

there's not a lot of witnesses usually

to that happening

the best kind of evidence you have is about

someone who saw it

someone you disclosed to

someone who received a text message

I mean all of those things themselves can be twisted

and it's the defense barrister's job to twist them

but what we're allowing to happen is

is there twisting a whole heap of other things too

to the point where it's kind of like

the victim is on trial

and we're prosecuting the wrong person

and the counter to that is that the

defendant has a right to silence

so it's like a trial playing out where only the victim is on the stand

and potentially a couple of other witnesses

and then someone not saying anything

and the victim is just annihilated

annihilated, utterly destroyed

and then if they're crying too much

their scene is dramatic and faking it

if they're not crying their scene is

you're not a real victim

it's just down to every single detail

this system is inefficient and dysfunctional

yeah

fucking seems like it

so if you are in

I mean you said that all states have legislation

that say that they can't use counting records

are you able to say anything

is there any way that you can

kind of make sure that's enforced

like if you are a victim

if you in the thick of your trauma

even know what that legislation is

yeah

so if you in the thick of your trauma

are given

an understanding of why a defense barrister

would even want that information

you're not like thinking about that at the time

you know

and like police

pretty early on will ask you for your phone

if you've got disclosure text messages

or evidence of like where you were with time stamps

and they'll say to you

you'll look like a good victim if you hand this over

and even if there's things on here that aren't so good

you'll look like an honest victim

because you know

you're willing

you're willing to hand over the phone in its entirety

and no one even

will say actually that's a privacy issue

actually you

consenting

it's not informed consent

you consenting to hand over this makes it more likely that

they'll access these are the private thing as well

yeah

it's so like

watch like a victim

understand like has no idea what's even going on

let alone can

decipher

legislation

like about it

and so the issue is

standing

like it's called standing when a victim needs to be given

standing

to be

it's like they're briefly becoming a party to the trial

there are two parties in an adversarial system

state

and

accused

and the victims not a party

but very briefly

in matters concerning

their privacy

currently only really counseling notes and not

any of the other things that

you know

get thrown in

they need to be given standing to

advocate

or challenge

like advocate against or challenge those access attempts

hey this has nothing to do with the trial

this will cause more harm

to this person's well-being by invading their privacy

then it will

add to the defense's case

there's another question as well

there's a difference between

accessing evidence

and then actually using it

there are different thresholds that get met

but the thing is like once your privacy has already been invaded

even if they say actually you can't question her on this

your

rapist has now had access to

like your entire

text message history

to your counseling notes

to your blood tests

like I don't know what they're doing with that information

it's just scary

it's scary

so if you do know about this legislation

how do you actually

feel that it's upheld

so I was appointed to the Australian Law Reform Commission's

expert advisory group

for its most recent inquiry into justice responses to sexual violence

the report

that came out of that has 64 recommendations

they're pretty conservative which is a shame because

this is once in a generation kind of chance for sexual assault

justice to kind of progress

but there are a couple of really key things in there

the government swooped in

up to the state and territories to implement these things

because

the courts, unless it's a commonwealth crime

the

the crimes acts that govern

sexual offense trials

and sexual assault procedure are

like state and jurisdiction

the government swooped in and said we pick independent lawyers

out of this big old list

to fund federally like we finally recognize that this is important

and that has been me

getting the issue into the mainstream

with the only people in the country working on it mind you

which was not a lot of people

my god I could not have picked a more complex issue

to talk about

but I really believe it's the thing that will make the biggest difference

in this lifetime with this system as it is

I pull together the only experts in the country working on it

I pull together loads of international countries

that were either already had it functioning

like up and running

or were trying to advocate for it themselves

and I gave all of this to the law reform commission

like from the inside because I was on the group

and I was really privileged to be chosen to be

on that group of the most incredible powerhouse

people like you've ever met

that are dredging up the most heinous things

they can in the name of like greater good

you know I could do a whole

to feel about that group but it's anyway

I was advocating internally

while externally I decided to run

as many case studies as I could

with news.com.au

Nina for now picked up

the issue and tried to soften the earth

I guess for the community

try and raise awareness for the fact that we need this reform

and when you're working with

independent legal representation

you're working from like negative zero

because I'm

not having to convince people it's a good idea

I'm having to convince people

who think we already have it

that we don't have it

and it's a good idea that we have it

does that make sense?

It's been really really difficult

I couldn't have picked a harder issue

but I really do I'm doing it for a reason

and so we

we ran like these case studies

about like where it would have helped

what other countries have it

along with a series of other

spotlights on other reforms

that were sort of up and coming

in the Law Reform Commission report

and the federal government

came in and we want that one

and so right now we went from having three pilots

in WA, the ACT and Victoria

to now pilots being rolled out

across every state and territory

of legal assistance for victims

so right now

so what does that mean?

So victims can go and get specialist legal assistance

for free

about a lot of things

including I guess having an options talk

really about a trial

but the thing is the infrastructure is there

the funding is now in there

and the training is beginning

the specialist training

for those pilots to

do so much more than legal assistance

so recommendation 10

of the ALRC report

as opposed to recommendation one

which is about the legal assistance pilot

Okay.

Rec 10 is like

let's let those pilots

operate to a greater scope

so that victims can have

representation through trial

when it counts

when it comes to the accessing of their private records

so right now it's like you can go get advice

about whether your records

will be accessed

what you might do

whether you should proceed

because the risk is too great

I don't know to your wellbeing

but to allow

a lawyer to represent a victim

when the decision to access those private records

are just a little change

it's as simple as

you know how I said every state

and territory already has those rapes

shield boards

it's as simple as expanding out what we mean

by protected sensitive

confidential information

which has been recommended by the ALRC

and it's as simple as adding a clause in

that allows victims to have

standing when it comes to those decisions being made

which has been recommended by the ALRC

so that's what I'm working on this year

I've been running now

and then the next thing is going to be cool

it's pretty cool because I didn't think we'd get this far

like I thought there would be a lot more

resistance

but really the resistance is coming from

a very loud few

who are kind of like

I don't know people will say they represent the bar

like all defense barristers

against this

they're not

there are plenty of defense barristers who say

thank god now the system's functioning with more integrity

delays this and like the long term outcomes

it's not just about

more guilty verdicts

which is pretty huge that

it does that it's also about procedural justice

the feeling that a victim was respected

and treated with care

no matter the verdict

that they felt informed and valued

and like they could meaningfully participate

and remember this trial is meant to revolve around them

that leads to so many flow and effects

when it comes to long term health benefits

employment

like rejoining the workforce

like the money that we save

when we represent victims

is pretty astounding

like the reform speaks for itself

no one's out of a job so no one has to worry

and it's not that we're trying to

make victims a party to proceedings

and blow up the adversarial system

we're just saying hey

when this legislation that already exists

comes on

you should come up with an avenue to enforce it

like it's so simple

yet

because it's so simple and so common

sensible it's kind of like

it's a massive, massive appeal

yeah so how would someone access that?

right now the

the issue

primarily is that most victims

don't even know that they're not legally represented

and so don't even know that

they would need to find representation

and they don't know that

the pilots are happening

because they're not even across the ins and outs of the system

you have to rely on prosecutors

to

refer victims to

the pilot schemes

and a lot of them aren't across the ins and outs of it

either because

and remember the victim is not their interest

like they're busy

which as we know is a bizarre framing of the whole situation

but

it's about like education

and like community awareness

like you need to be able to tell your friends

or by the way you are meant to be

yes right now only New South Wales and Queensland

even allow you to have

representation

and that's just when it comes to your counseling records

New South Wales legal aid

operates this scheme

it's called the sexual assault communications privilege

which is also just a confusing name

like a communications privilege is about

privileged information

like your counseling communications

your counseling records are privileged

protected

in theory

legal aid and the women's legal service

historically

it's a bit of a bigger population there

it's also like

well I guess more diverse

wider geographically

funding for those services is so my new

like in New South Wales

I think our sexual assault

communications privilege team

at legal aid is three people

and so you can imagine the amount of victims

they're missing

the amount of victims that are having to choose between delaying their trial

god how we're just working from nothing

and then people are here

going oh but the accused

right to a fair trial

which totally

what about a fair trial though what about the

community because right now we're prosecuting the wrong person

that's not in the community's interest

the administrative nightmare

that is

public prosecution

so in Queensland or New South Wales

I would say try your best to advocate for yourself

or have someone who is in a

better place than you like

mentally

if your provision

enough to have a support system like that

to advocate

for you to access these schemes

if you're in one of the other states

be patient I'm trying to change the law

yeah

and that's where

so we've got the horror of reporting the horror of the trial

and then the other issue that comes up

is that if

that person is found

then you also

aren't really

allowed to talk about your experience

because then

you can get to see for defamation

it's all suppression order

without anyone telling you about it

can you explain that

so often

they'll automatically be a suppression order put on

sexual offense cases

for the proceedings themselves

unless it's like a case

like a very very public case

it's like that

like a horrible horrible horrible

in

you can assume that most sexual offense cases

are closed

because most sexual offense cases

aren't in the spotlight

like that

and it's kind of what happened

with Brittany

and the trials against her perpetrator

are completely

it's not unique

it happens all the time

so the suspicion meant to protect victims

and their privacy is totally evaded

that's not unique but what's unique

is that it was in the press

so that like you know how text messages

are in the news

like those sorts of things

I think people get really, really fearful

that that's going to happen to them

the media doesn't really care about

no offense it's a good thing

unless you are being used

like a political bloody football

someone who assaulted you, you know what I mean?

It's like, it's something to keep in mind.

So it was not to put, put too much distress

at the front of victim's mind.

So what will happen is for the,

yeah, for the bulk of proceedings,

the suppression order will be put in place.

That should be overturned at the end.

Often, often defense baristas will like apply

for it to just be like put in place indefinitely.

Because the DPP or the Crown Prosecutor

does not represent the victim,

they might agree to something on a whim.

They certainly won't consult the victim about it.

That happens a lot.

People sort of being put in situations

where there's like a lifelong suppression order

on their proceedings.

But they aren't ever allowed to talk about anything

to anyone. Yeah, unless they can get it overturned.

With what?

Independent legal representation.

And so this is why we need it

for so much more than just the trial itself.

Like all of, defamation,

being able to name yourself publicly

because of the gag laws that, you know,

now have been overturned in so many places,

advice about how to access government compensation

and counseling schemes when you're a victim.

At the end of the trial, sentencing

and your victim impact statement

and maybe that getting dismissed or people don't know this.

But if you talk about things in your victim impact statement

that aren't, so most people aren't tried for one crime,

they'll be like a bulk of crimes.

When you think about a rape and the type of crimes

that make it through with that threshold,

it'll be those stereotypical

so it'll be like quite violent.

So there might be another like a form of indecent assault

on top of the rape.

That's not the norm.

Most rapes are not violent.

But if you think about the rapes that make it through to trial,

it's in line with myths.

Okay, yes, of course, yeah, yeah.

And so they might be found guilty of the rape,

but not that they didn't violently or vice versa.

They might be found guilty of violence, but not the rape.

And so in your victim impact statement,

when you were told that is your time

to talk about freely how the crime has affected you,

you might say, I've been having nightmares.

I have PTSD and I'm now seeing a counselor,

and that's your fault.

Oh, counselor, you say a long comes defense to say,

we didn't know she was seeing a counselor.

We want access to her records.

You open up the trial again

and have a mini cross examination like take two.

Like the fact that you don't know that is one thing

and that's about legal literacy

and what we expect from victims,

the other is about throwing them in

and giving them no way to have a fair fight.

And remember, it's not even their fight.

Like they're just there because the state has said,

please will you cooperate and testify for us?

Yeah.

So it's like this whole...

This whole...

Yeah, the whole conception of the justice system

needs to literally be flipped on its head.

Like everyone has in mind that like victims

doing this for like money and revenge.

You can't even report for not revenge.

What a stupid sentence.

But like, you know what I mean?

Like it is so hard to report.

It is statistically negligible the chance

that a perpetrator will ever see the inside of a courtroom.

If they're in there, you can bet

that there's a lot of evidence of their guilt.

Like, you know what I mean?

But instead of like the police and the prosecution

talking to each other

because they're both signs of the same coin.

If they're the justice system,

they like don't even know how the author operates

and there's like a weird turf war.

And so you start from scratch when you get into a courtroom

in the name of a fair trial.

They're also not really talking to...

The detective in charge who...

That will be the detective who is...

Who takes the lead on an investigation.

They will testify as a witness.

Right.

Often they will be a deer in headlights.

Everyone is so fearful of the law

and the courtroom and the wigs

and the drama of it all

because it's so red that a case makes it through

that like no one actually prepares you for when you get there.

It's like this weird stage play where no one knows.

Yeah. That was so intimidating.

Yeah.

And it's like how are you gonna...

You don't want to like deter people from help seeking

because of the counseling notes thing.

And you don't want to deter them from reporting

if that's what they want to do.

My advocacy is trying to give back agency to victims.

It's about allowing you to make the choice

without pressure, without conflicting information

from the people that are meant to have the answers

but don't about what's right for you

so that you can go forward

not blindly sort of knowing what to expect

because you're an adult and you can regulate

and you can...

You know what I mean?

It's like so belittling.

Allow you to make an informed decision

or you can live your life without that what if looming over you

of like oh maybe I should have done something

I kind of regret not doing it

but actually you didn't know what it would be like.

So you chose not to.

It's just victims are blindsided by procedure.

They're completely alone

and we blame them when they walk away.

And that's on top of all of the cultural crap

and myths and stereotype and biases.

Like it's just, it's like appalling

what is playing out.

And you know you can't talk about it to anyone

because the face they pull when you say the word rape

like I get in trouble on my own Instagram account

for saying rape.

I've got to water it down so that you're comfortable.

Shouldn't you be calling victim survivors?

Like to me it's victim blaming for the people

who didn't survive.

And yeah a story of resilience is a lot more marketable.

I get it or you want me to reclaim my power.

I get it but survivor like totally decentes the perpetrator.

Victim legally is what you are.

You are a victim of a crime through no fault of your own.

That victim has a perpetrator.

That victim is a victim of a law that has been broken.

Like I'm just trying to like get people

to face the realities of what's going on.

Because I think there is so much of the picture

that is missing.

It's missing from public discourse.

It's missing from like general education, civic studies,

like whatever it is.

Such that like myths just run the show.

So how can people access your work

and how would you recommend them interacting

with your work as well?

Yeah so with you we can is for anyone

who is a victim of sexual assault

and anyone who loves or knows a victim of sexual assault

or might come into contact with them.

It's trying to educate people about the realities,

the nuances and just the state of play

in the legal system so that we can all support victims

to navigate a little less alone.

It's also for just people who are interested

in being active, engaged members of the community

to do their part to learn about what's actually happening.

If we create understanding of the justice system,

we're all better placed to reform it

and we can all demand better.

Like change won't just happen.

It happens because we demand it.

And so you can go to withuicarn.org

or the withuicarn Instagram to be a part of that change,

learn about the legislation we're trying to change,

learn about why we need independent legal representation

and why we're so close to achieving it

after all these years.

But also just statistically you know a victim

or you know someone who's been accused of perpetrating.

And it's important in both of those cases

that you know what's going on.

Like you need to know the realities of like

why your friend or your brother or whoever it is was charged

and that person needs to know their rights

and what to expect because they deserve a fair trial.

But the victim and the community,

because remember the victim is cooperating with the state

so that the state can prosecute on behalf of the community.

They deserve a fair trial too.

And that's not going to happen

unless we all get a little bit more engaged

in this cost of fuck of a process.

Like it's just it's high time Australia captures up

to the rest of the world.

We know well and truly what needs to change,

what's missing is the courage to change it.

And so if more people can get on board

and help support these calls to actions that you know

the sector, this is nothing new.

The sector's been calling for change and reform

for years and years.

And it's my main point in talking about this

whenever I talk about it is that this isn't just about

helping one victim feel a little better.

It's not just about mitigating retraumatization.

This is about the community having an institution

that operates the way we expect it to.

Like this is bigger than one victim's sob story.

You know what I mean, we've long ago decided

that one more sob story doesn't matter.

We've effectively decriminalized the crime.

That shouldn't be okay with anyone.

And yet it's uncomfortable to talk about,

but it's meant to be.

You're not meant to feel good talking about rape.

Yeah, you're really not.

You're not.

Go and check out Sarah's work.

We'll put some links in the show notes.

Thank you so much for coming on and sharing

the advocacy in your knowledge.

And hopefully at least one person in the sitting

can know this for themselves, someone that they know

or I mean fingers crossed not in the future

if something happens, but if it does,

we're able to arm people with the knowledge

that they do have some options.

And unfortunately the reality is the system is broken.

It is, although as you were saying before,

it was designed this way, but it is disappointing.

That can be, that can be the word that we use.

It is completely disappointing

and it is stacked against victims.

So thank you so much Sarah.

I really appreciate your time.

Thank you for platforming this issue.

And all of the other important issues that you do.

Like I feel like culture is such an important part of this.

Not that that's the only thing you're affecting

because girls made it to, you know, Parliament now.

But, you know, this involves all of us.

And so it's going to take a whole of community response.

And so I'm so grateful that we get to nut out the nuances

of what's going on and shed a little bit more light

to hopefully help, you know, not just that one person listening,

but the people that love that one person too.

Absolutely.

It's a lot, isn't it?