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.