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Rape trials generally showcase our legal system at its worst

By Brendan O'Reilly - posted Thursday, 27 July 2017


Canberra was recently captivated by a high profile rape case involving cadets attending the Australian Defence Force Academy (ADFA).  A 19 year old male ADFA cadet had been accused of raping an 18 year old female cadet in his room during the early hours, following a night of drinking. 

As is the case with many rape trials, there were two distinct versions of events, which were "chalk and cheese" (to quote the defendant's barrister).  The defendant did not deny having sex but said he believed it was consensual, and pleaded not guilty.

I will outline (a shortened version of) events as described in the Canberra Times report.  The summary therefore is the reporter's take.

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The complainant told the ACT Supreme Court about the defendant being drunk after a dining-in night, which she said involved a three-course meal on campus with free, unlimited alcohol.  The woman described how, after texting, he joined her (about 10PM) at a nightclub and, after midnight, they took a taxi back to the defendant's room at the ADFA campus.

"It wasn't consensual. Because I just kind of went along with it but I just kept saying I want to go to sleep," she said.  "It's still fuzzy, what happened."

The complainant conceded that she kissed and lay down with the defendant, and turned over to go to sleep. "Then I came back into consciousness ... back into what was happening.  He was having sex and I just lay there because it took me a while to work out what was happening". 

Prompted by police, the woman described herself as "heavily intoxicated" that night. She had not had dinner, she felt confused, dizzy, wobbly and that she didn't have a "barrier" on what she was saying or doing.  She described how she fretted for days over whether to report it because she was worried about her career.

The defendant's barrister told the jury that his client was blown away by the accusation and claimed texts leading up to the incident showed the pair had liked each other.  He said, if someone woke up and regretted their actions after a night out drinking, that didn't mean it hadn't been done of free will.  He told the jury it was only when a friend told the woman that what had happened was wrong, that the woman started to question the night's events.

Prosecutors suggested the jury would have no trouble concluding beyond reasonable doubt that the woman did not consent to sexual intercourse.  Alternatively, if the jury did find there was consent, the Crown said it was the woman's intoxication that caused the consent. Under ACT legislation, consent caused by intoxication is negated.

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There are a number of aspects on the case that show legal procedures surrounding the case in a bad light.

Firstly, the Court ordered that the identity of the complainant be suppressed, and allowed her to give evidence by audio-visual link from a remote witness room.  The judge said this was standard procedure in the ACT for sexual assault and rape cases, and jurors were not to assign any more or less weight to her evidence as a result. 

I don't have a problem with all this, except that the same protections were not available to the defendant. 

While the complainant remained anonymous in the media, the Canberra Times named the defendant in every report, as it was legally allowed to.  Additionally the paper (in either hard copy or on the internet) presented multiple pictures of the defendant, his legal team, and his family.  Given that the defendant is presumed innocent unless convicted, surely he ought to have his identity suppressed as well.  Irrespective of the outcome of the case, the defendant would suffer irreversible damage to his reputation. 

Another unfortunate aspect of the case was that the woman spent  almost ten hours over several days giving evidence, answering a barrage of embarrassing personal questions during cross-examination (that had her in tears on occasions).  While examination of witness testimony is important, especially where accounts of the facts differ, ten hours seems an enormous length of time, and was obviously traumatic.

I will outline some of the cross-examination reported in order to illustrate its invasive and personal nature, which nevertheless in many aspects was necessary to test her evidence. 

Hundreds of messages between the two cadets in the lead-up to the alleged rape were scrutinised for meaning and intent.  The defence suggested many were "flirty". The woman said she had been joking, not flirting. "It's reasonable to joke with someone that you know. I was joking with a friend."

Barristers pointed to the woman's seemingly coordinated movements around the club, in nearly two hours of surveillance footage, and text messages sent with no spelling mistakes, in an effort to cast doubt on the Crown's contentions she was too drunk to consent. 

The defence also focussed on a kiss the pair shared at the top of a Canberra lookout the evening before, and a visit to his room later that night.

"And the next night you had a few drinks and jumped a few steps in this relationship building, and decided to have sex with him, didn't you?"  "No," came the woman's answer as she choked back tears.  "And then like kissing, you felt bad about it and you regret it in the morning?"  "No."  "And you were okay with it, apart from your own guilt, until [another cadet] said to you that was wrong. Correct?"  "No."

The woman agreed that she had gone back to the defendant's room after going nightclubbing, and consensually kissed him, but she said this was a kiss between friends. She also agreed he had with her consent touched her.  "Was he touching you as a friend?" the defence barrister asked.  "No. I don't know what you're trying to imply," she said.  "You were allowing him to touch you intimately ... because you wanted to have sex with him."  "No," came the reply.  The barrister suggested the woman in fact had consensual sex with the defendant in a natural progression of their flirtation and then felt guilty about it and made up the allegation. "I don't agree with that," she said.

In the end, the jury found the defendant not guilty, taking just over an hour to return the unanimous verdict.

There were no winners in this case.

The Crown spent a lot of time and money running the prosecution but failed to get a conviction.

The complainant, would have had to endure over a year of build-up to the hearing, several days of difficult cross-examination, and in the end did not get the conviction she sought.  There may also be negative repercussions if she stays on at ADFA.

The defendant also suffered substantially despite being found not guilty.  He would have been under great stress for a year, and had faced the threat of a significant jail sentence and legal costs (some of which he may still have to pay).  In a statement read by his father, he said the last year had been the worst of his life.  "Not only did the prosecution continue to run this case when it was clear the complainant was not telling the truth, but they only agreed to disclose crucial evidence to my lawyers after they threatened to have the trial stopped for unfairness."  He said they intended to make a complaint to the ACT Attorney-General "about the conduct of the police and the prosecution".

There is an inherent difficulty in proving rape in that, firstly, it is necessary to both prove that sex took place and that it was non-consensual, and, secondly, it is in the nature of rape that it is generally unwitnessed.  Consequently "he said, she said" situations are almost inevitable in the courtroom, and invariably many perpetrators go unpunished (due to insufficient evidence and "beyond reasonable doubt" rules), partly to ensure that innocent accused are not wrongfully convicted.

While there is no obvious solution to the problem of getting convictions in cases of genuine rape (where there is lack of evidence), the law (in my view) has become unbalanced due to "reforms" introduced by "progressive" legislators, aimed at increasing conviction rates.  In response to the common difficulty in proving lack of consent, legislators have introduced a wide range of circumstances, where there is deemed to be a conclusive presumption of lack of consent.  

The ACT is a peculiar jurisdiction in that, while it is widely regarded as very lenient on criminals, this is not the case in respect of crimes against women, both in law and in sentencing.  In rape cases most states mandate that there is no consent where the complainant is so affected by alcohol or other drugs as "to be incapable of freely agreeing". In the ACT, there is no such qualification.  Section 67 of the Crimes Act (ACT) simply says that "consent is negated... if that consent is caused by the effect of intoxicating liquor".  In this case the Crown sought to use Section 67 to gain a conviction, even if the defendant could demonstrate actual consent.

Given that there must be thousands of acts of drunken sex annually, according to the law in places like the ACT, there are many men that could be charged with rape, if reported on by their partners.  Such charges might be reasonable if the woman is very drunk and her male partner is relatively sober.  The question is, is it fair that, when both parties are drunk and engage in impulsive ill-considered sex, that blame is placed solely on the male to the point that he faces a jail term, while she is deemed blameless and treated entirely as a victim?

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About the Author

Brendan O’Reilly is a retired commonwealth public servant with a background in economics and accounting. He is currently pursuing private business interests.

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