December 9, 2004
Courtroom drama ... Katy says lawyers tried to intimidate her with disturbing questions.
Photo: Jason South
Rape victims can throw up or be brought to tears by the tactics ofopposing lawyers, writes Edmund Tadros.
It was the judge's first question at her stepfather's retrialfor sexually abusing her that "Katy" will never forget. "When I gotup into the witness stand, the first thing the judge said to me was'so, you're a lesbian are you?' I'm thinking, 'Oh my God, this isan absolute joke'. I said, 'Ah, yes'. That put me on the back footimmediately."
Katy's stepfather had sexually abused her from the age of nineuntil she left home at 21. He was initially found guilty ofindecent assault and rape, but the conviction was overturned onappeal and a retrial ordered.
"The defence barrister's style was deplorable," Katy says of theretrial. "He intimidated me the whole time. He would yell at me andcome up really close to question me. I was surprised at his levelof animosity. He called me every name under the sun. I was just apiece of shit to him."
Katy describes the trials flatly, without emotion. She says sheis describing incidents from a past life: the "younger Katy" whowas repeatedly sexually assaulted and had to go through the traumaof multiple court cases.
While she treats her past as another lifetime, the scars stillshow. Her face is aged beyond her 38 years but she has the reservedbody language of someone who has survived a terrible storm. Shesays the court cases "were like being dominated by my stepfatheragain; it was the same feeling".
Katy's cross-examination echoes the decision last week of thecounsel for Tara Anglican School for Girls to ask a former student- who was suing the school for breaching its duty of care after shewas allegedly gang-raped during an overseas trip - if it took a lotof confidence to wear "a skirt as short as that" at a bar in Sydneytwo years later. The case was settled out of court.
The skirt question seems "unfortunately genteel" compared withwhat many complainants go through, says Dr Caroline Taylor, aresearcher and author of two books on sexual assault court cases."While I agree that the question is offensive, it is only the tipof the iceberg compared to what I regularly see in sexual abusetrials. If people knew that kids as young as seven have been askedwhether they fingered their own vagina they would ask, 'What isgoing on here?"'
Taylor's book Court Licensed Abuse is a walk-through offour trials - including Katy's - detailing evidence never presentedto juries. The other, Surviving the Legal System, deals withthe range of defence tactics, such as aggressive and humiliatingquestions, that are commonly used against sexual assaultcomplainants in court.
Taylor says the "sluts and nuts" defence - portraying thecomplainant as either asking for it or lying - is common. "It istypically trial by attrition, where the courts exclude compellingevidence or evidence that is central to fact-finding. The gaps canthen be filled in with the legal codswallop about the lying,conniving, slutty, nutty woman."
Although both of Taylor's books deal with Victorian courts,Julie Stubbs, deputy director of Sydney University's Institute ofCriminology, says that, overwhelmingly, the experience of victimsin NSW differs little.
Katy says the worst questions were during the first trial. "Igot asked, 'Did you swallow the semen or did you spit it out?"' shesays, with a look of disgust. "The defence barrister got to askabout three questions about that; he really pressed me on it. Itwas my stepfather, for God's sake."
Taylor is scathing of defence barristers who ask these types ofquestions. "I know of another case where a teenage girl was askeddreadful questions about how long [her abuser's] penis was," shesays. "I mean, how many people would know the length of theirpartner's penis, let alone asking that of someone who has beenraped."
Katy says the questioning she encountered from defencebarristers was a clear attempt at intimidation. "They seemed tosometimes ask disturbing questions, over and over, just for thehell of it."
"Amanda", Katy's mother, a fiery, forthright woman who sufferedyears of physical abuse during her marriage to Katy's stepfather,is more direct. She calls the barrister from the first trial "thatlittle bastard" and the barrister from the retrial "thearsehole".
"Belinda", 22, has also been through the trauma ofcross-examination. She went to court, in Victoria, after allegingher friend's stepfather had sexually abused her during a childhoodcamping trip.
Her cross-examination at the committal hearing, with no jurypresent, was traumatic enough to give her "serious doubts" aboutgoing to trial. "I think I cried about three times. I was 16 at thetime and I was actually shocked at what happened. I know it's partof [the defence barrister's] tactics but you don't need to keepasking the same question. That's one of the most confusing parts,where they keep asking the same question and they're rewording itto try and slip you up." The case ended in a conviction that wasoverturned on appeal.
Michelle Stubbs, 36, from Perth, tells a similarly upsettingstory. Her stepfather, David William Little, abused Stubbs from theage of eight to 13. In 1986 Little murdered Stubbs's mother,receiving a life sentence. Wanting to finally move on, Stubbsreported the abuse in 1996.
"The defence attorney's behaviour at the preliminary hearing [inWestern Australia] was disgusting," Stubbs says. "Here's a man[Little] who is a convicted murderer and his attorney was accusingme, who had never been charged, of being a liar. It made me veryangry."
Little received a four-year sentence and was deported to hisnative Britain in 2002.
Taylor says her research shows the tactics these women faced arestandard. "What the defence barrister wants to do is continuallyshock and confront [the complainant] to affect the quality of herevidence. A standard and known tactic for some defence lawyers isto attack complainants with such ferocity at a committal hearingthat they are too afraid to go to trial."
The conviction rate for sexual offences in NSW is less than 5per cent. About 12,000 women in NSW were victims of a sexual orindecent assault in 2003, estimates by the NSW Bureau of CrimeStatistics and Research show. Only 2707 of these women reported thecrime to police, with 858 charges brought and 361 proved lastyear.
One reason for the low conviction rate may be due to sexualassault cases often coming down to one person's word againstanother's without corroborating evidence, says Stubbs. "Inparticular it invites the defence to attack the credibility of thecomplainant. But we don't see such ferocious attacks on characterand credibility in some other serious areas of offending."
Stephen Odgers, SC, defence barrister and chairman of the NSWBar Association criminal law committee, says the accused isentitled to be "championed" in an adversarial court system."Defence barristers have been told by their client that the clientis innocent and the inference, often, is that the complainant istelling lies. In an adversarial system the legal representative ofthe accused has to be given reasonable leeway to challenge and testthe critical prosecution evidence against him or her."
Odgers says there are strict rules about the type of questionsallowed in NSW, with the Evidence Act saying the court "maydisallow a question which is 'misleading' or 'unduly annoying,harassing, intimidating, offensive, oppressive or repetitive'.
"And I want to stress the word unduly. It's a question of degreeand it's ultimately for the trial judge to decide whether or notthe cross-examination has crossed the line. The mere fact that [thecomplainant] finds the question offensive does not mean that it isnot legitimate," Odgers says.
But Taylor says these rules are often ignored: "The rules arethere but they are just not enforced. The culture when it comes toa rape complainant is that anything goes."
Pauline Wright, a solicitor and chairwoman of the NSW LawSociety criminal law committee, says giving evidence will always beuncomfortable for sexual assault complainants. "It's always goingto be traumatic to remember and go through that trauma again, butwe can't throw away the rights of individuals in our society to afair trial because it makes [a witness] uncomfortable," shesays.
Odgers has seen this discomfort close-up. "I've had complainantswho have vomited in the witness stand in response to questions I'veasked them," he says. "My reaction as a person who may suspect thatthey are innocent victims - I can only feel sympathy for them. Thenthere's me as my job, performing my role, which I believe to be animportant role in the system of justice, who believes that I actedethically. I've cross-examined in what I regard as a perfectlylegitimate manner, and it's regrettable, but I don't blame myselffor that outcome."
Defence barristers are also less aggressive, says Odgers,because "juries often now regard that badly".
"Crap," says Taylor. "I would consider that asking fallacious,insulting and gratuitous questions, and interrupting a child sothey can't actually make a sentence, so they can only say yes orno, repeatedly calling them a liar; I would call all of thataggressive."
Despite the daunting nature of courts, Detective SuperintendentKim McKay, commander of the NSW police child protection and sexcrime squad, encourages victims to come forward. "There is help andsupport all the way through the process ... what's happened to thevictim is a very, very serious crime and people need to be broughtto justice for that crime."
The Government is also looking at reforms. The Attorney-General,Bob Debus, recently announced a taskforce to examine ways toimprove the way courts handle sexual assault cases.
As for Katy, she has no regrets. Her stepfather was found guiltyand on appeal sentenced to four years' jail with a minimum of two."I would definitely do it again because the legitimacy andaffirmation that I got from the legal system was worth more thanthe harassment I received."
NSW Rape Crisis Centre: 98196565
Crime Stoppers: 1800333000
Advocates for Survivors of Child Abuse: 1300657380
Surviving the Legal System (Coulomb Communications)and Court Licensed Abuse (Peter Lang, New York), both by DrCaroline Taylor.
for a listing of alternate locations.