Rape myths make it almost impossible for victim-survivors of sexual assault to f…

This week the public was finally provided with a copy of Walter Sofronoff’s inquiry into the conduct of Bruce Lehrmann’s rape trial. Its release, however, has brought with it more misreporting around sexual violence, including the perpetuation of “rape myths”.

A central finding of the inquiry – that the prosecution against Lehrmann was properly brought by the director of public prosecutions, Shane Drumgold SC, who moved to charge Lehrmann after ACT police declined to – has been overlooked in much of the reporting. The inquiry’s findings do not establish Lehrmann’s guilt or innocence, just that the police and the DPP acted appropriately in bringing charges. Brittany Higgins alleged Lehrmann, a former colleague, raped her in Parliament House in 2019. Lehrmann, who pleaded not guilty to one count of sexual intercourse without consent, has always denied the allegation of rape and no findings have been made against him. He was tried by the ACT supreme court in October but a mistrial was declared due to juror misconduct.

The inquiry, and much of the media reporting on it, have consistently erased the voices and experiences of victim-survivors of sexual violence. The ACT’s victims of crime commissioner Heidi Yates was forced to justify the use of the term “victim” in her title, since she supports people affected by crime before a criminal conviction is in place (and often where, as in this case, there will never be one). This is clearly out of step with how we understand ‘“victimhood” in any other context, and a frankly ridiculous take on the very important work of Ms Yates’ office. We don’t use words like “complainant” in relation to victims of other types of crime. It raises no internal conflict to call someone a victim when they are robbed or burgled, regardless of whether an offender is identified, charged or prosecuted.

What we have learned from the inquiry is that, as it stands, we can’t look to the criminal justice system for answers. As Dame Vera Baird famously said as the victims’ commissioner for England and Wales – we are witnessing the decriminalisation of rape.

Most people who experience sexual violence never report it to the police. Data from the Australian Bureau of Statistics shows that only 13% of victim-survivors reported their most recent incident of sexual violence. Victims who don’t report cite many reasons for their decision: fear of the perpetrator, fear of not being believed, feelings of shame, not trusting the police or fearing the legal process and thinking there was nothing that the police could do.

Of those that do report to police – our 13% of the overall victim-survivors – very few cases will proceed beyond report. Of those that are investigated, even fewer proceed to charge. It was at this point in the process that the Lerhmann matter first stalled.

Evidence shows that in about half of our 13% of reported cases, police will identify an alleged offender. This means about 6.5% of reported victims remain in the justice system, but not all of these will go to court. Of those that do, conviction rates are low. Overall, estimates sit below 2%.

Even when a case does proceed through the criminal justice system, victim-survivors experience the system itself as (re)traumatising. Much of this experience is a result of the pervasive rape myths that shape law and policy concerning sexual offending, as well as social attitudes to sexual violence. Decades of research, including my own, confirms this. The term rape myths refers to widely held – but incorrect – views about rape, survivors and people who commit rape.

Victim-survivors are asked about what they did to cause the sexual assault, and then to prevent it. But flirting with someone isn’t consent to sex, and neither is drinking alcohol, or wearing certain clothes or talking to someone, or sitting next to them, or going to someone’s home. Despite this, they are all factors that are still used in trials, investigations and media reporting as evidence of so-called ‘implied consent’, or the construction of women’s unrelated, everyday, benign behaviour as consent to sex. In fact, in law, consent must be actively communicated by all parties.

These aren’t the only myths and (mis)understandings of sexual violence. A report released this week by NSW Bureau of Crime Statistics and Research found that in almost three-quarters of the rape trial transcripts reviewed for the study, the defence asserted that the victim-survivor had a motive to lie about the rape. This is despite the consistent evidence that false rape allegations are extremely low. Sadly, all people, regardless of gender, are far more likely to experience sexual violence than to be falsely accused of it.

What I hope we can learn from the inquiry is that the system needs urgent, drastic reform – reform that includes the voices that have been erased: survivors.

  • Dr Rachael Burgin is a senior lecturer in criminal justice at Swinburne Law School and the CEO of Rape and Sexual Assault Research and Advocacy (RASARA)

  • In Australia, the crisis support service Lifeline is 13 11 14. If you or someone you know is affected by sexual assault, family or domestic violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au. In an emergency, call 000. International helplines can be found via www.befrienders.org

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