Rape, Power and the Law

My local paper has been talking about the law a bit lately, particular concerning the intersection of the crime of rape and the legal system.

The first of the pieces of interest was columnist Paul Sheehan's rant about the growing intrusion of law and litigiousness into society. Australia is becoming, says Sheehan, a society under the rule of lawyers, not laws.
What goes on in our courtrooms and tribunals bears only a passing resemblance to the moral code by which the vast bulk of society lives and which maintains social cohesion.

This stark divide was distilled, unintentionally, in the April issue of the Law Society Journal, in a review of The Making of Me, by Tegan Wagner, the story of her gang rape, her ordeal with the legal system and her efforts to reclaim her life. The book is reviewed by Andrew Haesler, SC, who happens to be one of the three senior barristers who cross-examined Wagner, then 17, over a period of three days.

After offering faint praise, Haesler writes: "Her desperate desire for affirmation and self-righteous tone irritates, in a way the parents of a teenager would know. Tegan is not a dispassionate observer. Her critique of the trial process suffers as a consequence …

"Tegan claims she was raped by three brothers. Only two were convicted. I acted for the brother who was acquitted. There were sound reasons for that acquittal. Tegan's 'fairer' system would have seen my client jailed for a very long time. Her rapes were unjust and wrong, but so, too, would be the conviction and long-term imprisonment of an innocent boy."

Excuse me while I go and vomit.

You can read Sheehan's reasons for vomiting if you read the article in full. You will also see him noting a recent local legal controversy, in which barrister Tania Evers has been referred to the Legal Services Commission for aggressive cross-examination of an alleged rape victim. This is the same Tania Evers who in recent years spoke publicly of
the erosion of an accused's rights in sexual assault cases. We'll come back to Evers' shortly, and the issue of whether the complaint about her -- and the leaking of it to the media -- are part of a political power struggle going on in legal and government circles.

But let's contextualise first. We need to think about at least three issues regarding the prosecution of rape.

Rape is a difficult crime to prosecute. It's an inherently difficult crime to prosecute, regardless of whether or not the legal system is horribly sexist, precisely because rape is a crime that involves an act that for most people, most of the time, is consensual and pleasurable. At any given instant of time, millions of consensual sex acts are going on around us. Determining which ones are the non-consensual (criminal) ones is hardly going to be straightforward. It's not a typical problem for a homicide detective to have to consider whether or not the murder victim really wanted to be killed and hence their death was the deliberate result of a consensual act. (Yes, yes, I know it's possible, but it's not that likely.) But it's a fundamental issue surrounding sex crime allegations.

Add to this, the longstanding tendency of Western legal systems to start with the presumption of innocence of the accused. This is an important presumption because it's easy for a powerful legal and/or political system to railroad anyone it wants if the system is set up to allow that to happen. The presumption of innocence is an insurance policy against the worst aspects of human nature in the political arena.

Add to this, the very real issue of false rape allegations. Researcher Eugene Kanin famously reported that in his case study of a small metropolitan community, 41% of reported rapes turned out to be false allegations. (For (in)famous cases, think Kobe Bryant, or the Duke lacrosse team.)

Balance all of this against the possibility that a woman (it won't always be a woman, but mostly it will) really has been violently raped and is seeking redress against her rapist. How should the legal system operate given all of these considerations? What latitude should prosecuting lawyers get? What about defence lawyers? How aggressive should they be allowed to be? How much control should a judge exert during a cross-examination?

According to legal columnist Richard Ackland, these questions are at the heart of a stoush going on in New South Wales legal circles.
At the heart of the strife is a concern that the leadership of the [NSW Bar Association] has too readily acceded to government wishes to corral aggressive cross-examination, specifically in sexual assault trials. A significant proportion of the bar council and much of the rank and file want the leadership to stand up to the Government. Indeed, that was one of the points implicit in Gleeson's resignation.

It was leaked to the media last week that a defence barrister, Tania Evers, has been referred to the Legal Services Commission by the Director of Public Prosecutions, Nicholas Cowdery.

The leak may have had the purpose of exerting leverage to get the bar to relent and pass new conduct rules designed to make it a disciplinary offence for a barrister to cross-examine witnesses in an intimidating, oppressive or humiliating manner, or to seek to stereotype a witness.

The only trouble was that the story about Ms Evers's cross-examination was over-egged. It claimed she had cross-examined a 15-year-old complainant in a sexual assault case for three days and that the judge aborted the trial because it had "gone completely off the rails".

But the cross-examination ran for less than two days and it was not the reason the trial was aborted.

Putting the rights or wrongs of the Evers cross-examination to one side, what the leaking and counter-leaking do signify is a subterranean struggle to change the "culture" of the bar. It raises the intriguing question whether accused can get a fair trial if defence barristers are prevented from reducing alleged victims to jelly in the witness box.

It could be that if these rules came into force everyone might be pleasantly surprised to discover that the job can still be done without counsel belittling, insulting, humiliating and generally crucifying prosecution witnesses.

See, while judges can intervene with discretion in instances of aggressive cross-examination, they are loathe to do so if they think it'll create avenues for appeal. So the state government is trying, with some force, to decrease the power of the (quite powerful) barristers, and give more to the judges.

That's what it comes down to, in the end. The issue of how lawyers comport themselves in sexual assault cases boils down to a pitched battle between senior lawyers and government ministers over the relative distribution of power and influence.


TheFuckOffKid was never prouder of his girlfriend than when she was a juror on a rape trial.

web address: http://suicidegirls.com/news/politics/23111/