Defence attorneys know juries will often judge the victim, who then suffers character attacks in court. Photo / 123RF
These numbers should terrify us all.
A report just released by Australia's Crime Statistics Agency found that in 2009 and 2010, more than 3500 rapes were reported to Victoria Police. Of those, a tiny 3 per cent ended in a court conviction.
Even more startling, 41 police reports were made against alleged perpetrators who already had at least six prior sexual offences recorded. Nearly half (18) of those reports went nowhere. No charges, no court appearance, no conviction, nothing.
And these are the rapes that have been reported. Hundreds of thousands of women in Australia have been raped or sexually assaulted and never go to police.
Why are charges and convictions so difficult to achieve for sexual violence?
That's something Nina Funnell knows all too well.
Nina Funnell was sexually assaulted nearly 10 years ago, by a man who held a blade to her throat in Sydney's Hunters Hill. Despite police eventually finding DNA evidence from the crime scene, no one has been charged with her assault.
"When you don't get an outcome," she says, "you feel so powerless, and so much of the trauma of sexual violence is being powerless. It shatters your belief that the world is a safe place and that justice is something you can rely on."
Funnell's experience, traumatic as it was, became worse in her dealings with NSW police.
After she escaped her attacker and was desperately running home, she called 000. She told them what had happened to her. She was still on the street and had no idea where the man who attacked her was. The phone operator took her details and disconnected the call.
Terrified, and assuming the disconnection was an accident, she called them back. Again, still alone on a dark street, with a man who had held a blade to her throat still somewhere in the vicinity, she gave her details and the operator hung up.
Luckily, she got home safely and waited for police to arrive. She says she doesn't know how long that took, a common reaction for victims of trauma, when shock and adrenaline distorts their perception of time.
The police took her back to the scene of the attack, where they found one of her shoes and her broken necklace.
Later that week Funnell went back to the police station to review her statement and look through photos of known offenders in her area.
"It was so shocking," she says, "there were hundreds of them. And as I was looking through them all, the officer who was showing me this huge book said to me 'you poor girls, you just don't understand the risks that you take and the dangers out there'. I was still bruised and shaking from the attack, and he thought I didn't understand the dangers? It was Hunters Hill on Sydney's lower North Shore and all I did was walk home."
Funnell couldn't identify her attacker from the photos, and she was told it could take up to six months to process the DNA evidence.
Four months after the attack, frustrated, angry, and still recovering from the horror of it, Funnell couldn't wait any longer, so she went to the media. After her story aired on Channel 7 the DNA results for her test came back within days. She knows, however, that most people don't have that option.
"It worked for me, but only because I had contacts in the media. What it meant, of course, was someone else got pushed from the top of the list."
The results found male DNA, but no match in the NSW database. Funnell doesn't know if the DNA was sent to other states for matching.
"I know enough about sex offenders to know it's very unlikely a man who attacked me the way he did only did it once. But the police couldn't tell me anything about the investigation. It was incredibly frustrating, and just made me feel powerless all over again."
Police have to be extremely careful about the information they give to victims. If they tell them anything that might taint their evidence in court, it could mean the offender goes free. But they can explain the process to victims, and treat them with respect and dignity.
"Victims might be traumatised, but that doesn't mean they're stupid. The communication process in my case was terrible. I just felt like they weren't doing anything and didn't care about what happened to me."
Worse was to come. Five years later NSW policeman Marc Osbourne was found guilty of three counts of filming a person engaged in a private act without consent after he videoed himself having sex with various women and showing the films to other officers at Gladesville police station. The same station Funnell was taken to look at photos of sex offenders, and told she should be "more aware of dangers".
"I just felt violated all over again. I felt like that was the culture there, that the people who were meant to be taking my case seriously, the ones I was so vulnerable to, and put so much trust in, were laughing at sexual exploitation of women."
Police, as Funnell experienced, are the gatekeepers of criminal proceedings against sexually violent offenders. They decide whether to investigate a reported crime, and how thoroughly they are going to do so.
They also make the decision about whether to take the results of the investigation to the next stage - laying charges and bringing the perpetrator to court.
Most police take sexual offences very seriously. The problem, according to a wide body of research is not that they don't care, it's more commonly that they don't understand the difference between the reality of sexual violence and the misconception of "real rape".
Police are less likely to press forward with cases where the perpetrator was the victim's husband or boyfriend, where the victim and her assailant were on a date, where the victim was intoxicated, where she has no visible injuries, or where they believe she was not a "good" woman. It's also not unusual for police to believe the myth that women commonly
lie about rape.
The truth is that this is how most rapes happen. Most victims know their rapist. Not all victims can or do fight back. There is no such thing as "good" women and "bad" women. Not all rapists leave bruises. Rapists can be "nice guys" who have friends, families and communities.
Victims can present as very calm and methodical. And women almost never lie about rape. In fact, women are forty-five times more likely to not report a rape than to lie about rape.
This mismatch between belief and reality goes some way to explaining why so few rapes go beyond the initial report. There is, however, more to the story.
Misconceptions about rape persist beyond police: they carry through the entire justice system. Juries have been shown to "pay more attention to evidence of character and conduct than they do to substantive evidence of rape".
Defence lawyers know this, and therefore their most effective and regularly used tactic is to discredit the victim's character rather than their evidence.
Mitchell Peggie is a case in point. He was charged with sexually assaulting a 17-year-old
girl in Queensland in 2014, and was acquitted in 2015. A week after his acquittal, he raped a 21-year-old woman, and was convicted.
During the trial his victim was subjected to a gruelling cross examination by the defence barrister. He asked if she had been "moaning and gasping with pleasure" during the rape, grilled her about why she was wearing "sexy lingerie", showed photos of her bra and underpants to the jury, insisted she was lying about the rape as revenge because she didn't like the way Peggie treated her, and asked "What did you think was going to happen?" when she testified about agreeing to go for a walk with Peggie.
After his conviction, yet another woman told the Courier Mail that Peggie had sexually assaulted her, but she did not report it to police at the time.
Obviously, only in one of those cases was Peggie proved to have committed rape, but the brutal questioning of his victim in that trial demonstrates why so many victims are hesitant about taking their cases to court.
Police and prosecutors, when they make decisions about whether to take a case further must take all these things into account. Where they think a case doesn't have a reasonable chance of reaching a guilty verdict, they may decide, as much for the victim's sake as anything else, to not take it any further.
In many cases, victims will start to understand the process they will have to go through to obtain a conviction and simply decide it's not worth it.
Horrifically low reporting and conviction rates for sexually violent crimes have been the subject of several law reform commissions and numerous research projects, but very little has changed over the past 40 years.
Debunking misconceptions about rape in the public perception, and more importantly in all levels of the criminal justice system, is one essential step.
But much more needs to be done to ensure that victims are given the belief, support and respect they so desperately need.
Australia
Less than 15 per cent of rapes are reported to police.
Victoria: 2009-2010
7066 rapes, indecent assaults and incest were reported to Victoria Police (of these, 3513 were reports of rape).
2381 reports resulted in further investigation.
1643 went to court.
631 recorded a conviction in Magistrates or Children's court.
583 were transferred to a higher court (rape cases cannot be tried in the Victorian Magistrates court).
Approximately 90 rape convictions were recorded in higher courts.
Approximately 40 indecent assault convictions were recorded in higher courts.
Approximately 50 incest convictions were recorded in higher courts.
New South Wales: 2015
10,944 reports of sex offences made to NSW police.
1734 reports resulted in criminal proceedings.
1603 reports went to court.
932 reports found guilty.
523 offenders received a custodial sentence.
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