The Rights (Boxing) Ring: Australian Rape Trials

In this paper we use the metaphor of a boxing match to describe sexual assault trials in Australia. In one corner – the accused’s right not to be tried unfairly. There are many jurisdictions in which the right to a fair trial is preserved, either through a Constitution or a statute of general application; however, this is not the case in Australia. In the absence of any legislation providing for the right to a fair trial in Australia, the courts have identified some implied rights under the Constitution and developed common law doctrines of due process. In the other corner – fairness of proceedings: the victim/witness’s right not to be retraumatised by the criminal justice process. Victims of sexual assault often feel scared, anxious, angry, shameful, responsible and unconfident after the assault. The criminal justice process can re-trigger these emotions and augment victim trauma. The relevant legislative evidence and procedure provisions are thus the equivalent to boxing rules and regulations, and the judge, the referee. These ‘rules’ have been altered in the last three decades, with much law reform aimed at mitigating the trauma of the trial for victims (but generating controversy from the accused’s rights corner). This paper examines how many ‘referees’ have continued to interpret the indeterminate provisions in ways that have restricted the impact and effectiveness of these reforms. In this way, we describe how the notion of a fair trial for the accused and the many myths about sexual assault and male and female sexuality have consistently served to ‘knockout’ victim witnesses. Another ‘round’ of reforms has recently (2009) taken place. These reforms alter trial procedures to better protect victim witnesses’ rights to safety from ‘punches below the belt’. This paper speculates about the effect of these laws on the rights of the victim in future ‘matches.’