Nadia Bach was raped by two men at a party in Tallangatta in North-East Victoria in 2017.
At the trial of her two attackers, she suffered ferocious cross-examination by the two criminal defence barristers.
At the heart of the issue is the continuing battle between procedural fairness and the treatment of a sexual assault victim.
Victorian Attorney General appalled
The Victorian Attorney-General Jaclyn Symes says she was appalled by the treatment of Ms Bach by the two defence counsel.
“Our laws make it clear that there’s no tolerance in Victoria for courtroom practices that only serve to exacerbate the already-difficult process of seeking justice,” Symes stated.
The Chair of the Victorian Law Reform Commission Tony North QC has stated that the reforms in the treatment of complainants in the courtroom have been ‘curiously’ slow.
Mr North spent 23 years as a Federal court judge and said the offence laws weren’t the real issue.
“If you look at the legislative framework, which is really where the reforms have been, it’s really very enlightened,” Mr North said.
“We’ve got a definition of rape that requires consent, it’s defined in the act as free agreement.
“So why are complainants still telling us that the worst part of the process is cross-examination?”
According to Mr North, there is a disconnect between the modern sexual offence laws and the real-world experience of victims in the courtroom.
Old-style courtroom techniques living on
Mr North has told the ABC that “old-style” approaches to sexual assault in the courtroom were living on. This is despite a significant shift in the law and culture surrounding sexual assault.
“What used to come in the courtroom was a style of cross-examination which was designed to harass, humiliate, to denigrate, to blame, and to focus on the woman,” he said.
“As a barrister, you’re educated in the traditional ways of your time of conducting cases.
“So you learn when you’re cross-examining a policeman, this is the sort of line you take. If you’re prosecuting the CEO of a commercial enterprise, this is the sort of line you take.
The Victorian Law Reform Commission’s inquiry has explored several avenues on how the justice system can better help victims of sexual assault. This includes:
- providing victim advocates,
- introducing a “restorative justice” model so victims can tell their stories,
- or even helping victims launch proceedings in a civil court.
However, Mr North said there was a long way to go.
“One thing that has become very clear in this inquiry is that there are no silver bullets,” he said.
Sarah is a civil solicitor who primarily practices in defamation, intentional torts against police, privacy and harassment.
