A Melbourne barrister’s suggestion that some women make false allegations about sexual assault has triggered calls for a review of legal education from more than 90 survivors and women’s safety leaders.
The group, including 11 anti-violence sector chief executives, says victim-survivors could be denied vital services if a proposal by barrister Geoffrey Steward that victims should only be recognised if the perpetrator confesses or is found guilty gained support.
Steward last month criticised a Victorian government media release which said, “victim-survivors deserve to be heard, believed and protected” for not showing interest in “accused-survivors” – a term referring to those accused of sexual assault but whose charges are not proved.
The release announced Attorney-General Sonya Kilkenny’s creation of a Victim Survivor Justice Advisory Group to drive reform strengthening responses to sexual violence.
The group will consult on reforms to ensure victim-survivors’ counselling and health records cannot be used in court without their consent, and allow them to pre-record evidence.
In a post on LinkedIn criticising the press release, Steward said, “victim survivors ought not to be regarded as individuals who make allegation(s) of sexual offending where an accused is not found guilty of [the] same”.
“A more honest and fairer approach would be to acknowledge that sometimes a complainant makes false allegations and is mistaken or significantly inconsistent about crucial evidentiary matters, which casts reasonable doubt on the truthfulness, reliability and accuracy of allegations made,” he wrote.
Steward also proposed that those accused of sex offences not be named in court unless they plead guilty or are found guilty beyond reasonable doubt.
His post was liked by 29 barristers and solicitors including three King’s Counsel and a Senior Counsel.
Steward told this masthead he did not doubt sexual assault is already underreported, but said, “it is indisputable … and clearly unpalatable to many, that sometimes women lie when making allegations of sexual assault.
“My issue is not with women referring to themselves as ‘victim-survivors’ … [it] is that they be referred to as such by others, especially governments where the allegations have not been either tested or admitted,” he said.
“Not for one moment do I, or did I, suggest that (all) ‘women lie about sexual assault’ as a matter of course.”
Steward said it was galling that many people, “including some lawyers”, were unable to accept what he said was an incontrovertible fact – “namely that sometimes those who allege sexual offences are not telling the truth when they do so”.
Australian and international research indicates about 5 per cent of sexual assault allegations made to police are false. Australian Institute of Health and Welfare data suggests that of Australians aged 18 or over, 14 per cent, or 2.8 million, have experienced sexual violence at some point since the age of 15.
Between 7.7 per cent and 13 per cent of women who experience sexual assault report it to police, according to AIHW and Australian Bureau of Statistics data, while national research has found four in 10 Australians mistrust women’s reports of sexual assault.
The survivor-led group sent an open letter to Kilkenny, federal Attorney-General Michelle Rowland, Domestic, Family and Sexual Violence Commissioner Micaela Cronin, the Australian Law Reform Commission and other legal authorities stating Steward’s comments risked reinforcing “rape myths” and excluding survivors from services. It also called for a review of whether current legal education is adequate.
Kilkenny said on Tuesday that “like most Victorians I have no tolerance for outdated views on sexual violence which only add to the trauma faced by victim-survivors”.
Victim-survivors did not need a guilty verdict before they deserved to be heard, believed and supported and that would not change under Labor, she said.
A spokesperson for Rowland said it should be easier, not harder, for people to come forward, receive support and pursue justice.
“We know that many victim-survivors never achieve the justice they deserve. That’s why all governments need to do more, not less,” the spokesperson said.
Criminologist Dr Hayley Boxall, a research fellow at the Australian National University and a signatory of the open letter, said Steward’s views and the fact they were liked by other legal professionals reflected “a pervasive assumption about who a ‘real’ victim of sexual assault is”.
“But we know from decades of research that even when victims do report, that doesn’t necessarily lead to a charge because of factors outside the victim’s control,” Boxall said.
The Australian Institute of Criminology says only one in seven instances of sexual assault reported to police progresses through the justice system. Some studies have found fewer than one-fifth of reports result in conviction.
The Victorian Law Reform Commission inquiry into justice responses to sexual offending put the high attrition rate down to the adversarial nature of the criminal justice system heavily deterring victim-survivors from staying engaged in it.
Fear of intrusive questioning, defence tactics, and judgment by legal personnel caused many victims to withdraw their complaints before a case ever reached court, the inquiry found.
Commission chair Anthony North, a former Federal Court judge, noted that some “legal dinosaur” attitudes among older barristers still existed.
Boxall said it was acknowledged prosecutors only bring charges when they believe they have a strong chance of conviction, and “may decide not to, even when they believe the victim and believe an offence occurred”.
“Speak to any police officer with experience of sexual assault crime investigations, and they will tell you believing the victim is not the only consideration when deciding whether to lay charges.”
Survivor Elise O’Neill, also a signatory of the open letter, said the views in Steward’s post were demoralising and condescending.
“That sort of attitude could lock survivors out of help,” she said. “It has a really significant effect on those already struggling, vulnerable and having a tough time speaking up.”
Monash University professor Kate Fitz-Gibbon said the absence of a conviction did not mean violence did not occur “and it certainly should not determine whether someone is entitled to recognition and support.
“We cannot have a system in which victim-survivors are effectively told that unless the person who harmed them is convicted, their experience does not count,” Fitz-Gibbon said.
“That is fundamentally at odds with everything we know about sexual violence, the barriers to reporting, the importance of victim-survivor agency in deciding whether to engage with the justice system, and the significant limitations of criminal justice responses.”
If criminal conviction were the threshold for recognising victim-survivors, the overwhelming majority of people who experienced sexual violence would be excluded, she said.
Melbourne University professor Laura Tarzia, also a signatory, said Steward’s comments would set back the recovery of people who had experienced sexual violence, for whom psychological harm can be long-lasting.
“People are already finding engaging with the justice system so traumatising and challenging ... suggesting you have to have a particular legal outcome to begin the pathway to recovery and healing is inconsistent with trauma and violence-informed principals.”
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