*trigger warning: the following article discusses sexual assault*
The Australian criminal legal system is crippled in its ability to effectively address sexual assault. The underreporting, the fear of being disbelieved, lengthy and daunting court processes, reliving trauma and the well-known fact that a guilty verdict is usually unattainable are all significant barriers to justice in this field. However, the legislative requirement of proof “beyond a reasonable doubt” entrenched in Australian criminal law is the unassailable gate to a sexual assault conviction.
This challenge was recently reflected in the highly publicised trial and High Court decision of Pell v The Queen. In a shocking twist, the High Court of Australia unanimously disregarded the jury’s guilty verdict and acquitted Pell on the count of child sexual assault. It provides a chilling commentary on the visceral reality of our sexual assault laws: they do not support survivors.
It should be noted from the onset that Pell’s acquittal does not equate innocence; it merely concludes the evidence presented against him did not meet the requisite standard of proof to allow a conviction beyond a reasonable doubt. Moreover, the issue of Pell’s guilt or innocence or the broader issue of paedophilia in the Catholic Church is not what is paramount about this verdict. Rather, Pell v The Queen shines a spotlight on the impossible evidentiary standard victims are held to.
The struggle faced by Pell’s accuser to overcome this evidential threshold of “beyond a reasonable doubt” should unseat Australia. The legal system worked against the victim just as it has done in sexual assault cases in the past and continues to do in the future if legislative action isn’t taken.
According to the victim in Pell’s case, the only persons present at the time of the alleged sexual assault were Pell and the two victims, one of whom is deceased. This begs the question; how can a victim prove beyond a reasonable doubt that the alleged event took place when the only witnesses were the victim and perpetrator?
Oftentimes, both child and adult sexual abuse cases are committed “under a veil of secrecy” therefore there is a clear issue with proving the occurrence of an event in which there were no eyewitnesses. Moreover, reliance on physical evidence poses an additional challenge. It is rare for victims to report an assault immediately. Usually, a significant period of time would pass before a victim decides to report the crime and bring legal action. By this stage, there is little to no physical evidence which the victim can rely on. Historical sexual assault cases, like Pell’s, lack any DNA evidence to bolster the victim’s testimony. Therefore, with no eyewitnesses and an absence of physical evidence, the outcome of the case relies solely on which party’s version of events is more credible. With the absence of any proof in their favour, a victim can only rely on their special knowledge that they were sexually assaulted. But this knowledge is worthless in a court of criminal law. As such, the perpetrator shielded by the principle of ‘innocent until proven guilty’ walks free.
Pell was acquitted as the High Court believed doubt should have entered the jury’s minds. However, Ballarat lawyer Ingrid Irwin claims that “you can always create reasonable doubt” in sexual assault cases as the only evidence relied upon are the contesting testimonies of two individuals. To a reasonable person, it is clear that the required standard of proof in sexual assault cases is almost unachievable. Thus, Irwin advocates for a legislative change that replaces the criminal standard of ‘beyond reasonable doubt’ with the civil standard ‘on the balance of probabilities’ or “inventing a new standard that sits between” the criminal and civil standards.
The most obvious criticism of Irwin’s proposed change is that it has the potential to damage the integrity of our legal system and jeopardise the civil liberties of the accused. The presumption of innocence is the “golden thread” of our legal system and its importance cannot be undervalued.
It hinders baseless accusations and wrongful convictions whilst maintaining public confidence in the operation of the law. The evidential requirement of ‘beyond reasonable doubt’ is designed to reinforce this principle. Reducing ‘beyond reasonable doubt’ to a less onerous burden of proof and altering our most basic criminal justice principles could result in a higher conviction rate but it runs the very dangerous risk of wrongful convictions. As such, watering down this the required standard of proof poses significant consequences to the character of our law and those it will undoubtedly affect. Regardless, it is crucial to realise that both the presumption of innocence and standard of proof creates an implicit bias against the victim in favour of the accused. Although our leaders believe victims and recognise their plight, it seems our legal principles are designed to disbelieve victims long before their case comes before the courts.
The Australian and Victorian government have taken steps to address sexual assault against both adults and children, alongside historical child sexual assault. In Victoria, the Limitation of Actions Amendment (Child Abuse) Act 2015 was passed to ensure time limitations would not hinder victims coming forward. Additionally, a number of Victorian inquiries and law reform committees have presented recommendations on this issue. Nationally, the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse shone a spotlight on the darkness that permeated our country, lifted the veil on the silent suffering of sexual assault survivors and prompted a National Apology from Prime Minister Scott Morrison. These events signal a nationwide acknowledgement of sexual assault survivors and the steps taken by our governments must be acknowledged. It is a significant cultural shift in the identity of our nation and our belief in survivor’s stories. Unfortunately, our criminal law does not reflect these values. Albeit, the reasons for maintaining the current standard of proof are almost indestructible, the burden of preserving this system is placed squarely on the shoulders of sexual assault survivors.
The Pell decision highlights the inadequacy of Australian law. It proves beyond reasonable doubt that the system does not encourage survivors to come forward and when they do, does not support them in their pursuit of justice. Without a shadow of a doubt, it is clear that the laws require the survivor to overcome an impossibly high evidentiary hurdle. Given the importance of protecting civil liberties and maintaining the presumption of evidence are foundational to our legal system, it is unlikely that criminal courtrooms will prevail as an effective avenue for sexual assault victims seeking justice.
