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Michael Bradley

The criminal ‘justice’ system is medieval in concept and medieval in practice

The darkest part of human nature is the part that feels entitled — obliged, even — to pass judgment on a case like the one that consumed Brittany Higgins.

The criminal “justice” system that we maintain invites and encourages this indulgence of our malevolent instincts by setting up a brutal binary: guilty/not guilty, with catastrophic consequences for someone either way. It is no different, in effect, from a bloodsport.

The trial in the case against Higgins’ alleged rapist has just collapsed into a mistrial, the legal term for a waste of everyone’s time. There will be a retrial. The show continues.

But put aside the temptation to have an opinion on whether a particular alleged rape occurred; whether a swimming instructor molested the children who said he did; whether Amber Heard was the victim of violent abuse or its perpetrator. These are just the most recent examples of the genre; the system into which we feed the accused and their accusers will continue to generate trials by combat for our entertainment.

It is a useless pursuit, this parsing and judging, in the sense that it holds no social utility whatsoever. It is, however, extremely harmful, an act of violence in and of itself. Its victims are not only re-traumatised but freshly traumatised, brutalised by their experience of the system that supposedly exists to prosecute and punish the cause of their original harm.

I know this, not in theory, but in the lived reality of dozens of rape survivors with whom I have directly worked. We tell them to go to the police, to pursue justice for all our sakes, and then we throw them to the wolves. From their perspective, this is not hyperbole.

The criminal justice system was not designed with rape in mind. When the structural elements of the system were being constructed, with the presumption of innocence at their core, rape was still a property offence. The system is unsuited, ill-adapted and hopelessly ineffective when it comes to crimes of sexual violence.

As American psychiatrist, trauma expert and author Judith Herman wrote: “If one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law.” My observation of its effect on survivors causes me to agree, and to advise them to avoid it altogether.

There are legal, structural and human reasons for this. We know enough to understand each of them and to initiate a serious conversation about something better. We are nowhere near having that conversation, however; instead, we persist in the pretence that what we have, for all its obvious flaws, “works”.

If our social goal was to ensure that the rate of reporting and prospect of conviction in cases of sexual violence remain suppressed, and that its actual incidence remains high, then we’ve perfected the means of achieving it. The system, in that sense, “works”.

It comes at a price though, and the price is paid exclusively by complainants.

Here’s the reality: the system doesn’t work. It fails to deliver on social utility (the reduction of crime — the probability that a rapist will be prosecuted and convicted is well below 1%); it inflicts direct, appalling and permanent harm on already vulnerable people; it creates and maintains a false binary that contributes to our warped understanding of positive sexual relationships.

The system is medieval in concept and medieval in practice. It forces people, who are complaining that they are victims of terrible violent harm, to perform, re-enact and re-experience their own trauma, while the system questions and sits in judgment of their actions, omissions, words and silences. It hears only one side of the story, and it turns trauma into sport. For all the well-intended efforts to reduce the risks, some of which have helped and some not, it is still completely and utterly broken.

Just ask yourself this: contemplating the high-profile rape trial of your choice, does the word “spectacle” come to mind? If you’re being honest, surely it does. Then ask yourself why we think it’s acceptable to make a spectacle of rape.

If this is the best we can do, then we are medieval too.

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 22 4636.

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