Rape on trial in Australia is archaic and shameless. There has to be a better way

The trial in which Bruce Lehrmann is facing charges for the alleged rape of Brittany Higgins is being played out in a court of law. As it should. But surely cases like this raise questions — outside of that particular case — of how charges of rape and sexual assault are tried.

Industry after industry has faced disruption. Uber disrupted taxis. Airbnb challenged the old hotel monopoly. Across the public service, modern thinking has enveloped how we do business: from virtual meetings, to the use of focus groups, to the unanimous understanding that women account for half the population and should be reflected among decision-makers.

The move towards making our leadership teams more diverse is a reflection of common sense, in a world that is moving faster by the minute. And yet a woman who alleges rape, harassment, sexual assault or domestic violence is put into a witness box and asked the most personal questions possible.

Questions about previous relationships, undergarments, the number of drinks they might have consumed and their state of undress when alleged crimes took place. This is happening in courts across our nation, daily. And surely that is as archaic as it is shameless. There needs to be a better way.

Likewise with those facing serious charges. Let’s say a 19-year-old male is charged with the sexual assault of an 18-year-old Year 12 student in Western Australia, and after a long and salacious court hearing is found not guilty. Does he deserve to have had his name sullied for days and weeks and perhaps even months before a verdict is delivered?

Mud sticks, always — but especially in a world where too much is said on social media by too many about things they have no idea about. And news, rumour and innuendo travel faster than they ever have.

At the expense of angering my media colleagues, is it time that no one — male or female, defendant or victim — is named until three months after a court case is finished, when it is clear whether someone has been found guilty or not?

Or perhaps in cases where the evidence or cross-examination can be intensely personal, should the media be shut out? Yes, there is a strong argument for the public’s right to know. But there is a stronger argument for truth — and justice for those who bring the charges and for those who are accused.

Or maybe a special court should be set up, where expertise around evidence doesn’t come down to the type of underwear someone wears, or the number of shots they might have had while wearing a short dress. This is 2022, and we are trying cases in the same way we did before our daughters were born.

But there are two bigger factors here, and it’s played on my mind ever since Chanel Contos bravely put sexual assault in schools — particularly private schools — into our daily news headlines.

What if it was your son in Year 12 who was charged with an abominable offence? If my son was found guilty, I would throw the book at him. But if he was found innocent and his accuser found to have made it up, does he deserve his life to be coloured by a wilfully wrong accusation? And what if police investigations mean he is not even charged but afterwards his name is plastered across social media platforms?

The other factor relates to young women. We know now from studies that too often women don’t come forward when raped or sexually assaulted because of how claims are investigated and tried.

My daughters would always be different, I thought. Stand up. Tell it how it is. Until this weekend when I asked one what her response would be if she was ever assaulted. To hide. To feel shame. To be quiet. Not to tell the police. Maybe to tell her parents or close friends. But not to be humiliated a second time for something she didn’t deserve.

As a parent, that made me feel sick. And as adults, wanting a society where young women are respected and acknowledged as equal, it should be an almighty call to haul our evidence-gathering and court processes into the 21st century.

What do you think of the idea of delaying naming defendants in rape trials? Let us know by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.