Who Stands For Us
Victims are brave enough to take the stand, but who stands for them?
The problem
Victims of sexual violence across Australia are not represented in the criminal case against their own perpetrator. The accused gets a barrister, the prosecution represents the state, but the victim is entirely alone. There is no one to guide them, decipher legal jargon for them, or advise them of their options.
There is also no one to represent them when defence barristers subpoena their private records - text messages, school and employment records, sexual history, medical and therapy notes. Defence barristers regularly access these records to find information that can be distorted to intimidate, humiliate or discredit the victim on the stand, or scare them out of testifying in the first place.
Not only does this deter complainants from seeking help (let alone reporting) the disclosure of intimate information without consent exacerbates trauma, erodes trust in the justice system, and compromises the integrity of trials.
Our solution
Independent legal representation provides victims with a lawyer to exclusively advocate for their interests - separate from the prosecution.
The lawyer can ensure that they are informed and updated, and can represent them at certain points of the justice process - namely when defence barristers attempt to access their private, sensitive and confidential records.
Having an independent lawyer can reduce the feelings of isolation and fear that drive low reporting and high attrition rates, can reduce delays, better prepare victim's to testify and lead to improved substantive justice outcomes. Long-term, it improves employment outcomes and lowers health costs.
Australia lags behind countless jurisdictions when it comes to affording victims with independent representation - it's time we catch up.
The Australian Law Reform Commission agrees
The Australian Law Reform Commission's recent Inquiry into Justice Responses to Sexual Violence represents a landmark national effort to examine systemic gaps and recommend improvements across the criminal justice system. The Inquiry emphasised that existing laws fail to adequately protect vicim-survivors’ privacy, dignity, and procedural rights, particularly in relation to sensitive counselling communications and sexual experience evidence.
The Inquiry's recommendations reflect extensive consultation with legal practitioners, specialist services and victim-survivors, including Executive Director of With You We Can Sarah Rosenberg, who sat on the expert advisory group informing.
Recommendation 1 calls for the funding of independent legal services for every person who has experienced sexual violence, Recommendation 9 supports independent legal advice and representation for victim-survivors, and
Recommendation 10 would codify participation for victim-survivors in applications concerning their private and sensitive records.
What the experts say
Victims should not be bystanders in a system that would collapse without their cooperation. Independent, trauma-informed legal representation allows victims to participate as equal and genuine participants in the justice process whilst respecting its adversarial nature.
Michael O’Connell AM APM, Australia’s inaugural Commissioner for Victims’ Rights
No one decides to work in the criminal legal system with the intention of causing further harm to victim-survivors - but the reality is, that’s what’s happening. Independent legal representation means victim-survivors have someone in their corner advocating for them, leading to a more empowering experience regardless of the outcome.
Eleanor Danks, Lawyer, Ex OPP solicitor, therapist and survivor advocate
Gaps exist in the protection of sexual assault victims at trial that cannot be filled by victim advisers, prosecutors or the courts, due to the limitation of their allocated roles in the criminal justice system. Only a legal representative can ensure the respectful treatment of the victim at trial.
Professor Kerstin Braun, University of Southern Queensland
We have been struck by the role of ILR in helping to promote transparency and information sharing through holding state institutions and criminal justice stakeholders to account.
Professor Jacqueline Kinghan, Co-Director of the Emma Ritch Law Clinic at the University of Glasgow
Equality in representation is a cornerstone of a fair and just adversarial system. Legal representation for victims is a step towards that goal.
Dr Adam Booker, barrister , researcher and lecturer at Sydney Law School
It is not a zero-sum game, where additional rights for complainants can only be gained at the expense of a fair trial for the accused.
Fiona Raitt, Professor of Evidence and Social Justice at Dundee Law School
Can you help us show decision-makers that Australia supports a fairer justice process?
1.
Email your Attorney-General
(Victoria, we're starting with YOU!)
