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Michael Bradley

The criminal justice system fails complainants like Brittany Higgins every day, everywhere

The ACT director of public prosecutions, Shane Drumgold, delivered the indictment of his career when he announced that the sexual assault charge against Bruce Lehrmann would be dropped due, he said, to an “unacceptable risk to the life of the complainant”.

Lehrmann’s journey through the criminal justice system is over; he walks away with the presumption of his innocence intact, but no conclusive determination on the public record either way. Nothing more of any utility (or safety) can be said about that.

There is a minor lesson in the outcome for the ACT’s criminal justice system in particular, being the urgent necessity of addressing its lack of an option for the complainant in the retrial of a sexual assault charge to not have to give evidence a second time.

But that should not obscure the bigger picture. Nor should the inevitable catcalls that will be cast in Brittany Higgins’ direction — that she brought this on herself by going public with her allegation and that she could have opted for anonymity, which the law guarantees complainants, and protected herself from the public glare. So the theory goes.

These are distractions. I know this from my work with dozens and dozens of survivors. I don’t know one who has come out of the criminal justice system in better shape than they went in. To be clear, they all come out considerably worse. That is regardless of outcome. And it is regardless of whether their names were known or not.

I am tired of this insanity. Nobody with a conscience could look at what happened to Higgins and think this is a system working well. It is a system that failed in her case, not because of her case but because it always fails. This is so in every Australian jurisdiction, all the time.

What is the measure of success of a legal system response to a crime? Whatever you think it may be, it is not being met in the context of sexual violence. The incidence is not going down; rape remains endemic. The probability that a rapist will be charged, prosecuted and convicted is so close to zero it might as well be that. To put it more gallingly, rapists have a near-perfect chance of getting away with it.

Here’s something else I know. The rate of reporting, since brave women like Higgins stepped forward, has gone through the roof. The rate of prosecution has not. The consequence of this is simple: many more survivors subjecting themselves to the system and being disappointed by it. By disappointed, very often I mean broken.

For the complainants in the few cases that do go forward, the odds have not changed. The constant tinkering with the law of consent has not changed them by more than a tiny margin. The experience of complainants in court remains hideous; an ordeal to which you would not subject anyone if you cared about their sanity.

I said not long ago that it’s medieval, because it is. What we do to people who say they’ve been raped is not much different from what we used to do people we thought might be a witch: dunk them in the river to see if they float. We demand that survivors undergo procedures that are designed to tear them to shreds.

I’m not just talking about the cross-examination, the brutally forensic deconstruction of their truth in the quest to find a sliver of reasonable doubt. When a survivor first goes to the police, they are required to make a statement. They are required to describe, in precise anatomical detail, every moment of the degradation and trauma they have suffered and which is living in their body. This statement will be used against them when they give evidence at the trial, with any slight inconsistency of memory displayed as an exhibit of untruth.

That’s just the starting point, and it doesn’t get better as the process unfolds. If we wanted to retraumatise victims, we’d do what we’re doing.

Ultimately, I cannot comprehend that we would be satisfied that the system we maintain is perfect, when that system can produce this result: that a case must be dropped because otherwise it might cause an innocent person to die.

You don’t have to know much to know that this is mad.

If you or someone you know is affected by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit is on 13 11 14 and Beyond Blue is 1300 224 636.

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