A first hand account from a formidable survivor, law student and advocate, LL.
A few years ago, I gave evidence in the District Court in relation to a historic sexual abuse matter perpetrated against me. I would like to share my experiences, as I know I am not alone.
The background in brief, is that I had a dysfunctional family situation leading me to become homeless for the second time at 14 years old. I was ‘couch surfing’ at a friend’s place when I met ‘Jay,’ the man who I was to find out would become the things nightmares are made of. He was 21 at the time, and we begun a relationship quite soon after meeting. He took me in when I needed somewhere to live, and I became totally dependent on him. The violence started with him smashing his things in front of me, then he started smashing my things. He then begun taking me on terrifying ‘death rides’ in the car, then the beatings began.
My parents knew about the assaults, but told me ‘love would see me through.’ I was regularly beaten, strangled, threatened, and sexually assaulted. At the age of 15 I fell pregnant with my daughter, who became very ill after she was born, leaving her with an acquired brain injury, and me with severe PTSD. I asked my mother to help look after her whilst I tried to plan my escape so I could have my daughter again. Each time I tried to leave, I found him back in my house; one time he had broken in and was strangling me.
In order to leave and be safe, I ended up living in a women’s shelter. My home was smashed to pieces, and I had to pay the bill to have it fixed. Years went by, and I tried to take action against my ex (again) for some of the more heinous crimes he committed against me, but police never took action. A number of years ago now, I began my journey through university. This was difficult as I missed out on most of my education having been a teenage mother with a disabled daughter, regularly attending upon her appointments, and then going on to have two more children and health issues of my own.
The injustices and dis-empowerment I felt as a young person having to deal with poverty, family violence and sexual assault as well as legal disputes put a fire in my belly I couldn’t quench. The injustices I suffered gave me a real contempt for inequity, injustice, bigotry, and the like. This is what led me to study law, and want to seek ‘justice’ through the legal system for the harm Jay had done to me.
Perhaps the joke would end up being on me- at least in part. I used my new-found understanding of administrative processes to follow up with the Ombudsman and Independent Commission Against Corruption, and after six years fighting through administrative processes, this case saw the inside of the courtroom. I had not studied evidence or criminal law at the time I stood to be cross-examined, so I could not be said to be intentionally giving the ‘right’ answers. The process was not what I thought it would be at all.
The prosecution evidence was damning, but despite that I was questioned relentlessly for many hours over a two-day period, for a total of seven hours. (The defendant on the other hand was questioned for 2.5 hours). Because of the way the law of evidence works, I was not allowed to mention a long list of things that may be seen as prejudicial to the defendant, such as the fact that he strangled me, had weapons and threatened to use them on me, used drugs, and the list went on.
What many people including the jury do not understand is that the evidence is heard artificially; kind of in a vacuum, to protect the jury from making negative assumptions of guilt in relation to the defendant. The victim is not afforded the same benefit. You are stripped bare, and cast in the most prejudicial light possible with the goal being to cast doubt on your credibility by any means necessary. The laws and basic human dignities seem to be disregarded.
After the hell I had been through in my life, I was not going to let the likes of this barrister break me, at least not in public. Under s25(c) of the Evidence Act, the court must disallow a question if it is offensive or oppressive, or if it is humiliating or insulting. I was asked questions that I now know should have been objected to on the basis that they were improper. I was, for instance, asked why I thought Jay raped me (at 14 years old when I could not give consent), and why it took me four days to report one of the sexual assaults (that I didn’t even know constituted a sexual assault at the time). I told his barrister that at the time I did not understand why, but I have come to understand that rape is not about sexual gratification but it is about power and control. He scoffed at me and said ‘is that something you read in a book?’ I was questioned in a manner that led the jury to think of me in the present tense, where in actual fact I was a 14 year old child at the time of the crimes, meaning there was no defense. There are a handful of experiences in my life that have led me into depression where I felt the only escape was death, and that was one of them. It took me a while to recover from the secondary trauma of being cross-examined.
Having studied law now including criminal law and evidence, I understand the importance of the rule of law, in particular the presumption of innocence and the right to access justice and information.
Ascendancy must be given to the rights of the accused given their liberty is at stake, but I believe rigorous questioning can be undertaken without improper questioning. The courtroom is not a place to ventilate personal opinion, or any behavior inconsistent with s25 of the Evidence Act that includes perpetuation of stereotypes and/or insulting questioning.
The reason I believe no objection was made, was so that there would be no grounds of appeal. However it is a damaging and self-perpetuating behavior when the justice system fails to call out the stereotypical, sexist, racist, homophobic comments that led us to that courtroom to begin with.
Judges and lawyers are supposed to be ‘fit and proper people-’ people that others in the community seek advice from as to what the law is, and to the layperson, law and morality are inextricably linked (especially in terms of family violence and sexual assault). It is very dangerous to allow improper questioning by lawyers and barristers because juries who are members of the public, watch and listen to the values and messages portrayed in our courtrooms.
The decisions are published in the media, and are accessible online. Sexual assault and family violence against women and children is endemic and needs to be stopped. This happens when we do not tolerate antiquated attitudes regarding violence against women and children; the message needs to be zero tolerance in every space; especially the courtroom.