Complainants of sexual assault want to be believed, but that doesn’t always happen. HUGH SELBY takes a close look at possible reasons for non-acceptance.

A few weeks ago our Chief Justice Lucy McCallum said some words at a conference about juries. 

The Australian broadsheet – which all readers know is dedicated to the very highest reporting standards – reported those words more than once, most recently this last weekend as, “appearing to suggest to potential jurors and her subordinate judges that there should be more convictions in sex cases”.

[I know it is tiresome, but her fellow judicial colleagues are not her subordinates.]

The Saturday article quoted the chief justice as having said that she wanted to understand why in the 2020s jurors find it so hard to believe allegations of sexual assault.

Unlike the celebrated author of the Saturday piece (who was a lawyer at one point in her career), I don’t see the necessity to jump from a desire to understand jurors to a desire for more convictions.

I don’t see a necessity to do anything other than stay grounded in what was allegedly said. 

By the way, I did make inquiries to see if what the chief justice actually said, and the context for any remarks, were available. Alas, there was nothing on the court website and no reply from her office. 

So let’s proceed on the possibly wrong assumption that the attributed remarks, or something very close, were spoken.

Complainants of sexual assault want to be believed, but that doesn’t always happen. Later in this article we’ll have a closer look at possible reasons for non-acceptance.

We all want to be believed, but it ain’t necessarily so

Let me insert here what I find to be an intriguing parallel. It goes like this.

In 2023 the same celebrated author jumped the gun with a detailed scoop of Walter Sofronoff KC’s findings in his inquiry into the unfortunate allegations made by then DPP Shane Drumgold SC following the much reported, but inconclusive criminal trial of Bruce Lehrmann for the rape of his work colleague Brittany Higgins. 

That author, along with an ABC journalist, had received embargoed copies of the inquiry report. The embargo was in place; however, the scoop was explained as being made possible by some other person leaking a copy of the report to The Australian. That got around the embargo.

No doubt the author, like any complainant of an intimate assault, wants and expects to be believed. Doubtless many did and do believe her. But not everyone. 

The naysayers scratch their heads and wonder, for example: “Who within the inquiry would want to leak when it was known that copies had been released?” 

They might also ponder: “Driven by the highest standards of journalism and knowing the strictures of an embargo The Australian might have said to any wanna be leaker: ‘If we’d known you were going to leak to us then we could have refused the embargo copy. But we didn’t know and now, in the interests of all the advantages that embargoed reports bring to journalism we must reject your public-spirited offer’.”

The result is that the celebrated author, notwithstanding her belief in the truth of her account, fails to persuade at least one or more readers beyond a reasonable doubt that her explanation that there was a leak is true. 

Note that there is no evidence of, or from the person who, supposedly, leaked the copy of the inquiry report.

The scoop-writing author may, or may not, persuade many readers on the much lower standard of proof – the balance of probabilities – as to the truth of her explanation. 

Of course, that lower standard may be irrelevant to the task – a distinction, sadly, that some people don’t grasp when considering allegations of criminal conduct where only the “beyond reasonable doubt” standard applies.

Reaching a satisfaction that claimed events happened depends upon an assessment of what facts are to be accepted which, in turn, requires “they” (her readers) to weigh up her believability (or credibility).

This can be summed up as: to accept that claimed facts occurred requires attention not just to the message about those facts, but also the credibility of the messenger communicating those facts.

Life experience matters

All of us need to understand the many reasons why today’s jurors may not accept the claims by a complainant that their intimacy with the accused was either non-consensual, or that the accused couldn’t be bothered to consider whether it was consensual or not.

First and foremost the jurors were not present during the sexual encounter. Hence, jurors understand that not only can the recollections of the participants be different, but that preferring one to the other can be well-nigh impossible. 

Those recollections are not just of the physical activity but go to all the lead up, and even what happened in the aftermath.

Really? you ask. Yes. It sometimes happens that a pleasant enough intimacy event leads to one of the participants being just a little bit pregnant. What was okay, possibly for some weeks, is now a disaster for which the other actor needs to be blamed.

The importance of “what went before” was illustrated to the nation by Justice Lee in his glass-by-glass analysis (when determining Mr Lehrmann’s unsuccessful defamation claims) of all the alcohol which Ms Higgins imbibed before she ended up on the ministerial couch.

In case you have forgotten, the effect of all that alcohol was to render Ms Higgins incapable of giving consent to any intimacy. 

There was no evidence that Ms Higgins intended to render herself insensible. Hence, the amount of alcohol and its effects being established, there was no need to wonder about her prior sexual experience (which is nearly always inadmissible), any suggestions that she was leading the other party on, or to take seriously the whispers that she’d complained only because of her real embarrassment at being found as and where she was after a consensual encounter. 

By the way, Justice Lee was assessing the evidence on the civil standard of “the balance of probabilities”. He was careful to make that clear. He did not venture into some off-handed remark that he would have been satisfied “beyond a reasonable doubt”. He kept strictly to the legal task before him – an approach that others should follow.

Let us compare the situation of the esteemed author and her readers with the situation of an “unknown” complainant in a sexual assault trial and 12 jurors.

The readers know the experience and reputation of the author. They fall into admirers, qualified admirers, and those who read the articles to “understand the other side of the coin”. The author sets out her account as she pleases, in her own time, and without interruption. She skilfully controls the narrative. In short there is a pre-existing connection between author and readers. That prior knowledge affects how the readers assess the author’s account about the inquiry report leak.

By contrast, the complainant and the jurors must not “know” each other. The complainant’s story is deconstructed by lawyers who present it and her to the jurors. That done, the complainant and her story are then attacked to highlight any weaknesses in the account or her believability or both. 

It’s hard to be persuasive if, for example, any alcohol or drugs were taken, if there was any flirting, if the two actors end up in a bedroom, if the claimed “no” or “stop” occurs too late to be practically meaningful, if there’s no attempt to get a “morning-after” pill, etcetera.

A life of experience, not a fine legal mind, grasps the real difficulties that face jurors as they “hearken to the evidence” and ask themselves:“Am I persuaded beyond a reasonable doubt that this was sex without consent?”

Readers cannot assess how journalists suss out information, but jurors can and do bring their intimacy experience into their assessment of a complainant’s intimacy story.

In this country we don’t ask potential jurors questions about their beliefs and life experiences. It follows that none of us, journalists, or even chief justices can ever understand what jurors do and do not know.

Hugh Selby, a former barrister, is the CityNews legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.