SARAH ROSENBERG: The Reality Of Reporting Rape

0:00It'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.

1:11So 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.

2:27But 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

3:55about 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.

5:18What 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.

6:31And 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

7:37And 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

8:50they'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

9:53but 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

10:58no 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

12:03closes 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

13:08the 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

14:18so 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

15:27anyone 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

16:34I'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

17:38in 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

18:45and 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

19:54in 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

20:59and 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

22:05but 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

23:06counseling 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

24:06at 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

25:12the 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

26:14and 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

27:15have 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

28:19the 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

29:21so 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

30:22and 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

31:22and 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

32:22and 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

33:22and 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

34:23due 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

35:23totally 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?

36:27we'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

37:29phone 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

38:29like 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

39:29and 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

40:29and 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

41:29yes 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

42:29someone 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

43:29this 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

44:29you'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

45:29like 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

46:32the 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

47:34I 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

48:34and 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

49:34about 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

50:34are 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

51:34more 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

52:34yeah 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

53:34it'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

54:34the 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

55:34sexual 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

56:34unless 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,

57:35now 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,

58:38you 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.

59:38It 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.

1:00:39Yeah. 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

1:01:39and 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.

1:02:40Because 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.

1:03:43If 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

1:04:44so 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

1:05:46that 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.

1:06:47I 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?