'Claims of a 'fake rape crisis' are a slap in the face for victim-survivors.'

This story discusses sexual assault.

"Verdict first, trial later: rule of law under threat." I remember the headline well, from The Australian in May 2023.

Lawyer of multi-accused rapist Bruce Lehrmann, Steven Whybrow SC, was claiming that the #MeToo movement was dangerously warping the presumption of innocence and the right to due process. 

Well, a different process took place last week, Justice Michael Lee finding it probable that Bruce Lehrmann raped Brittany Higgins.

"Having escaped the lion's den, Mr Lehrmann made the mistake of coming back for his hat. [Mr Lehrmann] has now been found at the civil standard of proof, to engage in a great wrong. It follows Ms Higgins has been proven to be a victim of sexual assault," Justice Lee said.

Just weeks prior, self-proclaimed men's rights activist Bettina Arndt announced that she would be platforming Lehrmann in protest of his "trial by media", which she says undermined the presumption of his innocence. We'll likely now watch her pivot to attack the civil system, because now that he lost the case, it's very clear that Lehrmann sought out that trial by media himself.

I won't dive into data about how 34 per cent of Australians still believe victims lie about assault for "revenge", and I'd hate to give Bettina air-time, but let's talk about the presumption of innocence of charged perpetrators of sex crimes, and how this relates to due process. 

Due process aims to ensure that all individuals are treated justly under the law. It encompasses the right to notice, the presumption of innocence, the right to a fair and impartial hearing, the right to present evidence and confront witnesses, the right to legal representation and the right to appeal.

Funny that we only talk about due process in relation to perpetrators. You know what else we don't talk about? The number of hours and resources spent collecting, collating and analysing evidence of a person's guilt for that person to even be discussing the right to due process. 

A fraction of victims report sexual violence. 

A fraction of those reports are investigated. 

A fraction of those investigations result in a charge. 

A fraction of those charges proceed to trial.

Do you know how sure the state has to be that a perpetrator is guilty in order to expend the resources needed to prosecute them? By cooperating as a witness for the state, victims are subjected to a loss of voice and agency, undergo humiliating questioning, and are at the mercy of a prosecution who does not represent them. They entirely lack preparation for the scrutiny and distress to come, and have no control over how a trial unfolds. (Believe it or not, those victims count themselves lucky to be in the tiny cohort that gets their 'day in court', when so many others are not afforded the 'privilege' because of how they look, who they love, or the way in which they were assaulted). 

But the average juror doesn't know that. The jury in the trial of my perpetrator would have thought the 'R' in 'R v XX' stood for Rosenberg, my surname. 

Watch: women and violence, the hidden numbers. Post continues below.

When juries misunderstand the role of a victim witness as a community safeguard, are not dissuaded from relying on rape myths, lack awareness of the statistical unlikelihood of isolated offending, and are not once told of the efforts invested in substantiating a perpetrator's guilt to even get them to a courtroom, it feels pretty far-fetched to say that victims who speak out about the crimes committed against them are threatening the presumption of innocence. 

Sure, for any high-profile criminal prosecution, it's hard to find a juror who hasn't read the news. Mind you, a trial by media goes both ways, and is usually heavily victim-blaming. 

But the notion that victims are believed often, let alone enough to impact juror decision-making in the criminal prosecution of sex crimes is categorically untrue. Aside from the deep-running rape myths that pervade the legal system, in most cases, victims must stay silent around legal proceedings to which they are a witness for risk of causing a mistrial or affecting the alleged offender's sentencing if there is a conviction.

While perpetrators are literally platformed, victims await trial with their lives on hold, scared to sneeze for fear of derailing the state's prosecution. Further, the process of self-identifying in the media for a victim is not easy, nor is it cheap. Thankfully, Nina Funnell's #LetHerSpeak campaign has been correcting that process, abolishing the gag laws that restrict victims from telling their story without risk of prosecution. 

The double standard is a joke, really, and particularly unfair when the legal system hinges entirely on the cooperation of victims. I had to sit on the With You We Can resource for close to two years while awaiting trial, a national-first website that offers critical guidance around the police and legal processes for victims of sexual violence, who are most often progressing through those systems blindly. I was told that if the defence got wind that I'd created a victim-centric resource, no mention of its capacity to help the community, services and the state’s prosecution itself, I'd be painted as being "on a witch-hunt for perpetrators". 

So, what's my point? 

Spreading mistruths about the legal system to discredit victims increases victim-blaming, perpetuates rape myths, decreases rates of reporting, increases rates of attrition, discourages help-seeking, cultivates mistrust of the system and excuses perpetrators. We know this. 

But we forget that misconceptions about the legal system pain the state, too, often rendering already challenging efforts to prosecute sexual violence futile. Jury members, largely ill-informed about the functionality of the legal system as described, who hear without correction that a victim reported for revenge, interfered with proceedings for a book deal, or is in control of a trial in any way, is not going to convict, no matter how strong the evidence against the perpetrator. And, they'll take those reinforced myths out into the world with them. 

The Bruce Lehrmann defamation case verdict is a step in the right direction. It's vindication, not justice, for Brittany Higgins. But we have miles to go to make tangible change.   

With only so many 'levers' a defence lawyer can pull to discredit victim witnesses, it is our duty to push back on the ones that rely on our ignorance about the legal system. 

What I'm really trying to say is that championing the presumption of innocence for charged perpetrators of sex crimes, above all else, doesn't make you morally deficient... it makes you uninformed about the police and legal systems.

Sarah is the Executive Director of With You We Can, a victim-led network demystifying the police/legal processes for victims of sexual assault while working to improve it. 

If this has raised any issues for you, or if you just feel like you need to speak to someone, please call 1800 RESPECT (1800 737 732) – the national sexual assault, domestic and family violence counselling service.

Mamamia is a charity partner of RizeUp Australia, a national organisation that helps women, children and families move on after the devastation of domestic and family violence. Their mission is to deliver life-changing and practical support to these families when they need it most. If you would like to support their mission you can donate here. 

Feature Image: Getty.