A Duty to Justice

I am currently completing a post-Law-degree course that will let me become a qualified lawyer in Australia. All of our instructors have been practicing in their fields of expertise for many years, so frankly, I shouldn’t have been surprised when some of those barristers and advocates supported slut-shaming and victim-blaming as ways of conducting rape and sexual assault cases. And then justified that attitude as a duty to their defendant client.

In Australia, about 1 in 5 women experience sexual assault and violence. Of those one in five, only 1 in 3 of those assaults are reported to police. Of those assaults reported, only 1 in 3 proceed to trial based on the likelihood of prosecution and wishes of the victim (PDF link).

Criminal proceedings are notoriously bad when treating victim giving witness testimony. Not only must they relive the crime in a courtroom under the scrutiny of lawyers, judges and jurors, but they are often asked highly invasive questions during cross-examination. (I should note here that now a lot of cross-examination is filmed privately on video and played to the court as evidence instead of live testimony.) Of course, any witness testimony will inevitably be difficult for a victim, and witness testimonies will always be necessary to satisfy the criminal burden of proof in an adversarial, common law jurisdiction. But there is never a justification for using arguments or questions grounded in victim-blaming as part of a defence. There is never an excuse to quiz the witness on what they were wearing, how many people they’ve slept with in the past and whether they were inebriated. There is never an excuse to reinforce rape culture.

The argument I most commonly run against is: that, in absence of evidence beyond conflicting testimonies, lawyers need to use whatever favourable “evidence” they can find, because they have a duty to do their best to win the case for their client.

Call me old fashioned or just a fresh-faced graduate from law school, but I thought lawyers were supposed to be officers of the court first.

Jurors aren’t rational and objective beings beamed down from the planet Vulcan to sit in judgement on our legal cases. Living in a rape culture, it should surprise no one that jurors will often hold prejudiced, misogynistic and anti-victim views. Using arguments and reasoning that appeal solely to a person’s prejudice only reinforces that prejudice and in cases of sexual assault and rape, only reinforces rape culture.

People trot out the evidence argument as if it is an unsavoury yet necessary practical component of sexual violence prosecutions. But anti-victim arguments aren’t “evidence” of anything, and they definitely aren’t evidence of consent. Whether a victim was wearing sexy lingerie has no bearing on their consent, just like a person’s skin colour and ethnicity has no bearing on whether they’d commit a theft. Suggesting victims who don’t initially report assaults are liars reinforces misinformation about “correct” victim behaviours and completely ignores statistical realities – that contextually, a reluctance to officially report sexual crimes is probably evidence that the victim was being truthful. Relying on misogyny and rape culture to acquit a defendant is a lazy and dishonest way of conducting a case, and no different from relying on racism or classism or any other prejudice. Such overt prejudices are impossible to find in the courtroom nowadays, yet victim-blaming sadly remains rampant and acceptable.

Yes, rape and sexual assault are difficult areas of law because consent is often one person’s word against the other. However, judges and juries often make findings of fact on little or no evidence beyond witness testimonies, and often rely on how credible they found a witness to determine those facts. While jurors may still be influenced by internalised prejudice to determine issues of credibility, at least this isn’t something they’ve explicitly turned their mind to. Credibility may still place unreasonable expectations on victim behaviour, but at least some of those expectations can be prepared for and managed after the crime.

An adversarial legal system does require the defence to act as a check on the prosecution. The defence ensures there is procedural fairness, and that the prosecution has proved their case on the evidence. The burden of proof in criminal cases is much higher than in civil cases – the prosecution must prove the defendant is guilty beyond reasonable doubt. That’s a high enough burden without the defence needing to rely on victim-blaming to make the prosecution work that bit harder for our taxpayer money.

Nor are lawyers required to do everything possible to win a case. In fact many things are explicitly forbidden because they conflict with a lawyer’s duty to the court. For example, lawyers cannot knowingly allow someone to present false evidence or delay proceedings as a tactic. Lawyers should cease acting for clients who insist on presenting false evidence. From there, even if it isn’t explicitly stated in the Professional Conduct rules, I’d say that it’s necessary to imply a “Don’t reinforce the prejudices of the jurors” in the interests of justice.

DID YOU KNOW?

Under the Evidence Act 2008 (Vic), evidence that relies on stereotypes is considered improper. Evidence about tendency (ie. they’ve had sex with X before so they would have X with again in this instance!) is generally only allowed in very limited circumstances.

Of course the law is not always applied perfectly (stereotypes to a judge is likely to be more limited than someone from a social justice framework) and these laws only apply to the state of Victoria in Australia. There are plenty of places around the world where slut-shaming is a valid and legal defence.

8 thoughts on “A Duty to Justice”

  1. It makes me infuriated that lawyers hide behind their duty to the client in these cases. You don’t have a duty to manipulate the jury using harmful social norms! That is above and fucking beyond.

    I know that the economics of the client-lawyer relationship mean that a lawyer’s incentive is to do whatever she can to win the case for her client. But that’s not supposed to be what she does, and that is not how the system should work. So it looks like we have a good old fashioned incentive problem on our hands. (Boy, I know, how unusual in the legal profession!) Maybe some contract theory genius could cook up a contract that would incentivise lawyers to take their duty to the court more seriously. (Hey or the court should fine a lawyer for asking a leading question or invoking a stereotype or something!)

    1. I think what would help is specific legislation for both lawyers and judges to turn their minds specifically to slut-shaming because it’s not yet culturally accepted as a “stereotype”. Unfortunately because it’s not yet culturally accepted, there’s no cultural imperative to enact any such legislation. I think this is the sort of thing SlutWalk might bring awareness to.

      1. I think you could actually mount a s 55 challenge to the relevance per se of these sorts of questions before you even get to tendency. Would such answers rationally affect the assessment of the fact? Well, rationally, no.

        Of course the law is still an ass, and I doubt you’d get anywhere with such a claim given the minds of judges. That doesn’t mean it’s not worth a try. One decision to that effect from the high court could revolutionise sexual assault trials.

        Any lawyer who tries to argue that they can ask such questions is doing so for their client is indeed in breach of a duty to the court. Such professional misconduct is theoretically punishable – once again though, it takes an understanding of these issues by judges and law societies before we get there.

        Things will change though. Eventually. We do live in hope.

        1. once again though, it takes an understanding of these issues by judges and law societies before we get there.

          Exactly. I think any form of slut-shaming is already inadmissable evidence in the strict legal sense (at least in Australian jurisdictions), but just that the laws of evidence aren’t being applied correctly. Lawyers and judges live in a rape culture too and aren’t infallible.

  2. I’m sorry, but haven’t you actually considered the possibility that at least once throughout history, a woman has accused a man of raping her out of pure spite? And have you considered that a man trying to do that wouldn’t be taken seriously by anyone?

    Not that that should have an impact on how seriously victims are taken, but there are checks and balances in place for a reason, and those checks and balances should be of a nature that doesn’t cause trouble to victims. Victims of BOTH genders.

    Honestly the idea that everyone who disagrees with you is “slut shaming” is quite insulting. It’s possible to have a healthy idea of where the burden of proof should lie without being a disgusting male sexist pig.

    1. “I’m sorry, but haven’t you actually considered the possibility that at least once throughout history, a woman has accused a man of raping her out of pure spite? And have you considered that a man trying to do that wouldn’t be taken seriously by anyone?”

      Yes, we have considered this. That’s why defendants deserve representation in court and a lawyer who wants to see justice done. But this does not ethically permit the lawyer to do whatever she wants to defend her client. The lawyer should not use unethical methods in court for any reason. Also, I think (as I hope you do) that it’s abhorrent and wrong that a man trying to do that wouldn’t be taken seriously by many people. Though, he would be taken seriously by some people, for example, ME. I take all allegations of rape extremely seriously.

      “Not that that should have an impact on how seriously victims are taken, but there are checks and balances in place for a reason, and those checks and balances should be of a nature that doesn’t cause trouble to victims. Victims of BOTH genders.”

      We never said men aren’t rape victims. We know some men are rape victims, although we feel compelled to point out that when they are, they are almost never asked how short their shorts were at the time of the rape or if they were wearing a sexy top or how much they had to drink. That’s because the issue of bringing slutshaming in the court is related to female alleged-victims only. That’s what this post is about.

      “Honestly the idea that everyone who disagrees with you is “slut shaming” is quite insulting. It’s possible to have a healthy idea of where the burden of proof should lie without being a disgusting male sexist pig.”

      Thanks for your strawman, I’mma use it to make a wonderful fire to warm my home. Nowhere did we say people who disagree about the burden of proof are disgusting or pigs or whatever. We all agree about the burden of proof. This post is about employing slutshaming as a tactic to win a court case. If you disagree that it’s wrong to use slutshaming in a court case, then you must think it’s right to use slutshaming in a court case. That means you agree with slutshaming as a tactic.

    2. Hello Anon. As you are derailing this discussion we will reply for the benefit of the public record but delete further or similar comments of this nature.

      To add to Rachael’s reply:

      Yes, women occasionally make false allegations which is immoral. Men making false allegations is equally immoral. Some women making false allegations against men, however, does not increase the likelihood of men under-reporting rapes (I think that is what you are arguing). Sexual assault against men is an area that I did not focus on because women are overwhelmingly the victims of sexual assault. Perhaps the male victims of sexual assault will be a post for another time as I think there are some separate gender issues there.

      I specifically linked to the Evidence Act which provides broad rules about stereotypes and tendency evidence. The Act is written in a completely ungendered way, so I don’t see how I am being unfair to male victims of rape and sexual assault.

      Lastly, I am not sure what you’re even disagreeing with me about? I am not sure you understand what the phrase “slut-shaming” means. Nor am I entirely sure where exactly you think the burden of proof should lie (PS. it lies with the prosecution BEFORE even going into slut-shaming).

    3. a,

      Honestly the idea that everyone who disagrees with you is “slut shaming” is quite insulting.

      You remind me of the dickhead Christians who apoplectically denounce homosexuals as being depraved, pedophilic sex-fiends, but when called ‘homophobes’ cry that your rhetorical opponents are treating you ‘uncivilly’. People like you need to understand that the price of admission to a civil conversation is treating people with civility.

      However insulting you find the label ‘slut-shamer’, rest assured, the rape victims whose lives you’re actively trying (and succeeding) to make worse find your ignorant and offensive aspersions on their credibility far more offensive. In closing, I welcome your hatred.

Leave a Reply to mjec Cancel reply

Your email address will not be published. Required fields are marked *