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February 5, 2023

Mandy Nolan’s Soapbox: Is it better not to report rape?

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It’s not the fossils, it’s the fools 

Humans have been muddling along in cities for around twelve thousand years, says Wikipedia, although if you count using an alphabet of some kind as the criterion of civilisation, the time span drops to a mere fifty centuries.

‘They said, “do you remember his penis size?” I said – I was seven.

We failed Brittany Higgins. Our judicial system is so brutalising the only way to keep her safe was to drop the charges against her alleged rapist.

That’s our justice system. Designed by men, in the interests of alleged offenders who just happen to be – wait, is this a coincidence? – men.

In an interview with the ABC earlier this year, Higgins pointed out the inequities between protections for alleged perpetrators versus alleged victims.

‘I was required to tell the truth under oath for over a week in the witness stand; I was cross-examined at length. He [Lehrmann] was afforded the choice of staying silent in court, head down in a notebook, completely detached.

‘I was required to surrender my telephones, my passwords, messages, photos, and my data to him. He was not required to produce his telephone, his passwords, messages, photos, or his data.’

Our judicial process hurts women.

Cross-examination of testimony and subsequent character assassination causes harm to people who are already vulnerable because of what they have experienced. Other countries have made changes to protect victims. New Zealand’s judicial process is informed by victims and in September this year the UK and Wales rolled out pre-recorded evidence for victims and witnesses to crime. Why can’t we do that here?

It will be too late for Brittany. It’s also too late for my friend Cathy.

Cathy is a successful public figure who works in the advocacy space for vulnerable communities. Cathy was so triggered by what happened to Brittany Higgins she wanted to share her story. You see, Cathy also went to court on rape charges and dropped them because she couldn’t endure the trauma of what happened in court.

She said something that surprised me.

‘Being raped is a collective experience. It happens to nearly every woman so there is a sense of community and vague understanding of the journey. But going to court is different. Most women don’t proceed to charge so being someone who does is a very different experience. They are out to break you. I had no idea it was going to happen like that. Our system allows barristers and solicitors to put victims on trial. And it broke me. I felt so alone. And ashamed.’

From an early age Cathy was violently raped by two brothers. It took her over three decades to report. The men were charged and just weeks after the death of her mother Cathy was the key witness in the her ‘alleged’ rape giving evidence to the court live via closed-circuit camera.

Cathy believes that as the victim she was not prepared for what happens in our courts.

In our courts the victim gets cross-examined first, and the alleged perpetrators get to watch. ‘We can’t sit in on their cross-examination. As the complainant I had no idea what was coming at me,’ said Cathy.

The defence were relentless with no concern for the harm and distress they were causing Cathy by their line of inquiry.

‘They said, “do you remember his penis
size?” I said, “I was seven”.’

They asked invasive questions about her penetration with a foreign object. The perpetrators had raped her with a beer bottle.

‘It was a beer bottle? What kind of beer? Lite beer? Full strength? Was it a sherry bottle?’ Cathy recounts quietly.

‘They need a code of conduct. They were not allowed to do this in the Royal Commission into Institutional Responses to Child Sexual Abuse. People told their stories and were not cross-examined. I didn’t realise how low it could go or how the level of disregard was beyond measure,’ Cathy said.

In Cathy’s case, the defence called in evidence by a violent ex-partner, who had stalked and harassed her for over 20 years. He completely fabricated details in order to discredit Cathy. The line of questioning became even more perverse as a consequence. Not only was she having to respond to things that were not true; she was now at risk from the re-introduction of this violent man back into her life and intimate affairs. He was, in essence, going to be present in the same courtroom.

‘I told them, “You have presented the statement of a mentally unstable man who has been harassing me for years to the point where I had to take out an AVO against him”. The “female” solicitor for the perpetrators turned around and winked at them and said, “We’ve got her”. I was like – what the fuck just happened? I saw my whole world crumble. I pushed my chair back and ran. I had a complete meltdown. I had been interrogated for two days. I ran towards the traffic. I wanted to die. I have never felt like that before.’

Cathy was tackled by a security guard who stopped her from reaching the road. What kind of legal system allows this to happen to an alleged victim?

Cathy dropped the charges. The risks were just too great. ‘I really struggle to think about it because they got off and I regret not pursuing it. There wasn’t one person who didn’t believe they were guilty but it didn’t matter. It wasn’t about fact or evidence. It was about breaking me. And they did it. I am tough, but they found a weak link.’

Sophie lives in Canberra, she is 63. She is a health academic and writer. She knows this story too well. It also happened to her.

Sophie is an Aboriginal woman who was part of the stolen generation. She was taken from her mother, placed in a non-Aboriginal family, then raped by her adopted brother. She ran away and then was placed in the care of juvenile justice, where she was raped again. Sophie sought justice but the DPP got cold feet and dropped the case. Sophie also felt traumatised by the system. She was interviewed numerous times, once at the recommendation of the royal commission, but the perpetrator was able to decline being interviewed. Sophie has never had any justice for the rape and abuse she experienced as a child. She has, however, been traumatised by continually having to tell her story, be interrogated, and then have nothing happen. Like Cathy she was asked details about her sadistic rape as a child: size of penis, what day? what month? what time? She was also only seven at the time.

‘You think you are going to get justice,’ she says, ‘and you don’t; you get mental illness or you kill yourself. This is how you make women crazy. Then you go to court and they question your testimony because you are mentally unstable.

‘After months and months of testimony … to have nothing happen! It drove me to a suicide attempt and led to the beginning of a decade of downward spirals. Since then I have been hospitalised six times with mental breakdowns. Three were attempted suicides.’

Sophie is not hopeful of change. ‘There was a vague glimmer of hope when a young good-looking white woman from our parliament and from a “good family” came forward. If she can’t get somewhere, who can? What message does this send? These men know they can get away with it. It sends a message to men to say: see she was lying. I say to people: don’t go to court. There is no such thing as justice.’

Cathy feels the same way. ‘I felt like I didn’t matter. I was so ashamed that it was me in that position. I wanted to wind back the clock and never have gone to the police.’

Although Cathy is clear that the police worked hard to get her case up, it was in court where she was let down. ‘I struggled to follow the Brittany Higgins trial. It was like knowing a car crash was going to happen. Women die from this. We don’t recover.’

We cannot ask women to come forward with allegations of rape and sexual abuse if we can’t provide a legal system that protects them.

‘People say: “You need counselling”. But you never recover from this. How do you recover from knowing that people can do anything they like to you and get away with it? I feel devastated. It is a mix of outrage and despair.’

Make this the line in the sand. Let’s push for judicial reform that puts victim rights at the centre, and not the periphery of the court process.

Let’s do this for all those women who have had this happen. For those who are too scared to come forward. For those who will need to come forward in the future. Let’s also do this for Brittany Higgins, so that the last two years of her life meant something. She may not get her justice but she just might be the case that got justice for women and victims ahead.

That’s something.

(Cathy’s and Sophie’s names have been changed because even though they are telling their true stories, the legal system does not allow them to.)

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29 COMMENTS

  1. Mandy as always writes passionately , here about serious flaws in Australian criminal justice systems. I use the plural because we have nine systems across six states, two territories and the Commonwealth. And just as it was important to hold Morrison to account for blurring the lines of responsibility for Ministerial portfolios, it’s important here to understand which criminal justice system we are talking about and where it has failed.
    Much has rightly be made of the role of the Liberal National Party and the culture of misogyny and sexual harassment it has fostered , and the failures of its Ministers and the Parliament as Ms Higgins’ and the accused’s employer . But the criminal justice system that so manifestly failed Ms Higgins was that of the ACT . After the employer dealt with the matter so poorly it was investigated by ACT Policing, who arrested the accused and the matter was brought to the ACT Supreme Court. A particular weakness as Mandy points was the difficulty of using video evidence in a retrial, and after first trial was aborted the ACT Attorney-General undertook to review the ACT evidence act. But the particular failure that caused the debacle and so Ms Higgins distress was apparently the misconduct of a juror who brought in to the jury room three academic research papers on rape. That it is reported was in spite of 17 warnings to jurors not to do their own research. However in the ACT the juror does not face any sanction. In NSW it is an offence , punishable by up to five years gaol or a $5,000 fine, which I suggest would make most jurors take their obligations seriously.
    If we are going to quite rightly blame the LNP and the Parliament for the culture of sexism and misogyny and to hold them for account for how they dealt with the incident it as an employer, we should also outline who was responsible for the the failures of the ACT justice system in dealing with it. The ACT has been governed by Labor and Labor Greens for two decades and its current Minister for Policing and Attorney-General is a Greens Member of the ACT Legislative Assembly.
    So I agree with Mandy that Mr Higgins “may not get her justice but she just might be the case that got justice for women and victim”,s like the awful examples Mandy refers us to uses , but a good first step would be to address the flaws brought out in the ACT justice system.

  2. Thank you for writing this piece, Mandy.
    Readers, to add your name to the calls for reform of the legal system, visit: https://www.change.org/p/march4justice-australia-needs-a-national-enquiry-into-sexual-fffences

    If you need som support after reading this:
    1800-RESPECT – the national sexual assault, family and domestic violence counselling line http://www.1800respect.org.au
    Blue Knot – for people who have survived complex trauma such as sexual violence – http://www.blueknot.org.au
    Surivors and Mates’ Support Network – SAMSN – for male survivors of childhood sexual abuse and their allies – http://www.samsn.org.au
    Lifeline: 13 11 14

  3. Thank you for writing this piece, Mandy.
    Readers, to add your name to the calls for reform of the legal system, visit: https://www.change.org/p/march4justice-australia-needs-a-national-enquiry-into-sexual-fffences

    If you need some support after reading this:
    1800-RESPECT – the national sexual assault, family and domestic violence counselling line http://www.1800respect.org.au
    Blue Knot – for people who have survived complex trauma such as sexual violence – http://www.blueknot.org.au
    Surivors and Mates’ Support Network – SAMSN – for male survivors of childhood sexual abuse and their allies – http://www.samsn.org.au
    Lifeline: 13 11 14

  4. Your detailed examples of vicious cross examination are compelling.

    More judicial officers should be willing to limit spurious detailed questioning that would add little evidence but risks greatly traumatizing the complainant. Unfortunately many solicitors are not true ‘officers of the Court’, but instead try and use words to obscure facts. I recall one who characterised violence against my client as ‘a bit of shoving and pushing’. I had subpoenaed evidence of her being knocked unconscious and hospitalised, and not for the first time. Police and Family Services had been called many times. His police record was 3cm thick. He would tell her “You don’t want the boys to have their father in jail”. In a refuge with her, those young boys acted violently towards others. After the Court allowed her to relocate, the father pursued them. I wonder if she is still alive.

    Hard to see why the rant of an ex partner should be given any credibility.

  5. While I agree with everything Mandy says, two things destroyed this particular trial: an extreme, massive and excessive campaign of “Trial by Media” (like this article) and jury member incompetence i.e a Jury member “did their own research”.

  6. What of Higgins not getting a blood test straight away in fear of sexually transmitted diseases ?
    What of Higgins doing a book deal worth hundred of thousands of dollars with Lisa Wilkinson’s husband before reporting her accusations of sexual assault to the police ?
    What of Higgins corresponding to current lover of having to go back on the Channel 10 The Project ,to shed some more crocodile tears ?
    What of the public gathering in Canberra organised by Lisa Wilkinson and friends ?
    What of Lisa Wilkinson with her Logie speech that looked like Contempt of Court that “looked like” she wanted a mistrial ?
    What of her text message to a previous lover that the Liberals need a sex scandal much like that of of Barnaby Joyce minus the baby ?
    What of 2 MP’s who employed her being drawn into something none of their doing ?
    It was very suspicious that Sheriff’s found research papers on Rape in Jury room after the Jurists had been warned on numerous occasions not to have it , which led to the trial being abandoned ,could any other jurist have seen it if they were sitting next to that person reading it ?
    There are many unanswered questions especially the head of the DPP showing so much pity of Higgin’s in his speech that the case is closed because of Higgin’s mental health , what of Bruce Lehmann’s seeing he had not been judge guilty ?
    Now we read of Higgin’s suing for millions in compensation and she is willing to testify if Lehrman commences civil proceedings ?
    I will leave you to come to your own conclusion of guilt .

    The justice system in Australia is a total farce for there should be the same laws and punishment in every State and Territory for the crimes committed with Judges that are qualified in such matters that their verdict reflect the severity of the crime committed .

    • Neville CT – I think in these cases you need to walk in others’ shoes to cast judgements about their decisions and likely motivations.

      I thought all the super sleuths who, on these pages, added to the general speculation and pile on that, as reported by the ABC, contributed to the conclusions of the DPP, Bruce Drumgold:

      “I have made the difficult decision that it is no longer in the public interest to pursue a prosecution at the risk of the complainant’s life.

      “The evidence makes it clear that this is not limited to the harm of giving evidence in a witness box, rather applies whether or not the complainant is required to enter a witness box during a retrial.”

      The report continues: ‘Mr Drumgold also said that Ms Higgins had “faced a level of personal attack” that he had “not seen in over 20 years of doing this work”.

      Perhaps it’s best to sit in on ALL the evidence before judgement and, now that the trial has been aborted, consider the DPP’s “hope that this will now stop and Ms Higgins will be allowed to heal”.

  7. It really is horrific, this is 2022, not 1521!
    The laws need serious adjustment! And the accused had other offences reported by other women that were not admissible in court also? But this case really comes down to the employers duty of care, to a young vulnerable trusting young woman and the orchestrated cover up that took place the moment the victim reported the crime to her employer.

  8. The 2 MPs were Higgins’ bosses who stuck their heads in the sand & allowed the rest of ‘official dirt’ to prosper. Quit talking
    the rape down. People – especially women – rape victims -aren’t fools let alone liars.

  9. Domestic violence against women, men’ children
    is certainly a problem.. it’s heartless, gutless
    and has no place in any society.. should always
    Be called out ..unfortunately for reasons it’s not that easy ..” the standard you walk past is the standard you accept” speak Up !!

  10. The result of this case is devastating both for the
    “Complainant ” and the “accused ” .the accused now has to live his life with perceived guilt is an appalling outcome. Surely Brittany has to take some accountability for that, when she chose to be
    Interviewed by lisa Wilkinson who further publicised her as the victim without a guilty verdict

    • Someone is so traumatised by a process that they are in serious danger of self harm – and the decision to proceed is taken from them – and you think they should take a bloody good hard look at themselves? We’ll just call you Mr Empathy shall we?

      • We all have choices mate
        Ms Higgins also had choices
        Options were private court hearings !
        Or go to court put yourself out on front street
        Ms Higgins chose the latter ..!

        • And how instructive it’s been for us Barrow, to get this rare insight into the way our legal system works in such cases. But how dare anybody seek courageously to thus inform the public.

  11. Perhaps those who contributed to the DPP saying that Ms Higgins had “faced a level of personal attack” that he had “not seen in over 20 years of doing this work” should take a bloody good long hard look at themselves. I’d suspect this would include the judicial experts who, while championing the presumption of innocence, seemed ready to all but presume the complainant was a liar.

    • No Lizard !
      Barrow is uncharacteristically right, unsubstanciated claims were made. She has made a packet out of that , but is now having a meltdown , didums .

      • What unsubstantiated claims? The ones that were being tested in court? We’ll derr – that’s the only way one gets to court – no?

        And surely the courts (despite their limitations) are a better forum of determination than social media trolling from either side including the contributions on these pages.

  12. Wrong again, Barrow. The ‘woman’ will carry this stuff up for the rest of her life. The rapist will join another ‘boys club’ – free drinks
    for all the guys plus another job on offer.

    • Stefanie why dont you just admit it ..
      And its about time you did ?
      All men are rapists right .. i hear by
      Find you guilty of all charges
      Irrespective of the evidence… !!
      Seriously Stefanie when have you in all the years
      Defended a Man regarding allegations of
      Alleged Rape ? FFS

  13. The latest news from Canberra is that the DPP is not happy with the AFP saying that they would not have taken the case to Court .

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