The Challenges Women Face In Taking A Sexual Assault Case To Trial — And How We Could Change That

Content warning: This article discusses sexual assault in a way that may be distressing to some readers.

In 2018, the inimitable Saxon Mullins stood in front of the entire nation in the now-famous Four Corners episode about the rape trial of Luke Lazarus (which ultimately resulted in Lazarus's acquittal) and said these words: "If it’s not an enthusiastic yes, it’s not enough. If it’s not an enthusiastic yes, it’s a no."

Mullins demanded that consent law in NSW change to reflect just that: an enthusiastic model of consent that requires consent to any and all sexual acts be communicated and not just assumed, and be given freely and enthusiastically at all stages of intimacy. 

Prior to Mullins’ brave intervention in Australian politics and law, our legal model of consent contained a dangerous loophole that proved fatal to countless rape convictions. The law included a strange and permissive double-negative — it said that non-consent could only be proven if the defendant had “no reasonable grounds” for believing that the other person had consented. 

What this means is that an alleged perpetrator can prove consent by merely proving that they had some grounds for believing there may have been consent — which, of course, flies in the face of everything we know about the so-called “freeze” response to unwanted sexual contact, in which the body’s autonomic nervous approximates “playing dead” in the face of danger, and becomes unable to respond or defend itself.

The freeze response obliterates the possibility of saying or doing anything that would, in court, refute the “reasonable grounds” for believing that consent was being given. After Luke Lazarus allegedly raped Saxon Mullins outside a nightclub in 2013, he was convicted by a jury and sentenced to five years’ imprisonment. But his conviction was quashed on appeal, with the court finding that the prosecution had failed to prove that Lazarus did not believe that Mullins was consenting. 

The campaign that Mullins started, and that organisations across the state joined and amplified, has worked. That contentious loophole was written out of the law in a sweeping reform of NSW consent legislation and replaced with a requirement that a defendant prove that they said or did something to ascertain consent from their alleged victim. That means that unless the defendant actively communicated with the victim about the question of consent, they will never again be acquitted simply by arguing that they believed the victim was consenting.

It’s difficult to express how significant this is, and how grateful I am to the activists like Mullins who made it happen. 

And the changes don’t end there. 

In 2018, Bri Lee wrote in her memoir about her own fight to get her abuser to face justice, and just how many Australians believe in what the scientific literature calls “rape myths” — widely held but totally false statements about sexual assault and sexual assault survivors. 

They include beliefs in false statements such as: false allegations of rape are common; any delay in reporting rape is suspicious; people who get voluntarily intoxicated are at least partly responsible for their rape; if the complainant did not scream, fight or get injured, then it is not rape; and an encounter is not rape if a complainant fails to sufficiently communicate lack of consent to the accused.

Rape myths have been proven to lead juries astray in sexual assault cases and have led to unjust acquittals. 

In Eggshell Skull, Lee reflects on the warnings judges are obliged to give juries in relation to certain crimes. One of them is “Bear in mind this warning: the mere fact that the defendant tells a lie is not in itself evidence of guilt”. 

We know from the strong belief in rape myths that this same attitude is rarely afforded to victims, for whom slight discrepancies in testimony can lead juries to believe that the victim has invented or exaggerated their claims.

I recently spoke to Dr Dominic Wilmott, an expert in legal psychology at Manchester Metropolitan University, who said that "nearly all of the research conducted over the last 40 years shows us that the degree to which you believe in these rape myths directly contributes to whether you will convict or acquit a perpetrator accused of a sex crime.”

On this point, Lee suggests that there should be a special warning for sexual assault cases: “Bear in mind this warning: There is a strong statistical probability that you will presume this woman is a liar”.

And just like Mullins, Lee has achieved just that: as part of the reform to NSW consent laws, there are now five new jury directions that are specific to sexual offences and which actively attempt to correct for jurors’ belief in rape myths.

Now on, juries will be explicitly reminded that sexual assault does not always mean an attack by a stranger and can occur between acquaintances and people who are married or in a relationship, that it is not always accompanied by any kind of violence or physical injury, and there is no normal response to being sexual assaulted. Judges will have the power to give these directions correcting for rape myths at any time during a trial. It’s the first time in NSW history that juries will be given crime-specific instructions from judges. 

So these changes to the law are truly remarkable, and so are the women who made them happen. So what now?

As we all well know, there is still more to be done. These reforms are aimed at making the process of taking a sexual assault case to trial — but we know that an alarming number of cases never make it to trial due to being mishandled by police or due to law enforcement attitudes making it too difficult for victims to proceed with reporting crimes against them.

For example, in 2018 there were at least 6,741 rape kits collected from victims that were sitting untested in police laboratories.

It’s time now to reform the front-end of the process of seeking justice for sexual assault survivors. That means reforming the NSW police and overhauling the way police handle sexual assault victims and their crime reports — that way more victims will get their day in court and get the opportunity to experience the huge progress we’ve made over this last year in terms of the fairness of rape trials.

Lucia Osborne-Crowley is a journalist and the author of I Choose Elena and My Body Keeps Your Secrets. She is a legal affairs reporter for Law360 and tweets at @LuciaOC_. She will be hosting After Consent, a panel featuring Bri Lee, Amy Thunig & Saxon Mullins at the All About Women Festival at Sydney Opera House on Sunday, March 13. The panel will navigate recent changes to consent legislation and the implications for sexual freedom.