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It is routine that every single utterance from the complainant about the alleged crime, as well as events after and before – whether to a friend, a work colleague, an ambulance officer, a doctor, a police officer or during the trial – is forensically examined for “inconsistency”. Why? Because the ability to offer an entirely consistent account of what occurred is still regarded as a hallmark of authenticity. This is so, despite the availability of jury directions (underpinned by what we now know about trauma, memory and recall) that expressly reject such a contention. This is how a complainant’s different accounts of how much time elapsed before she again wore the clothes she was wearing on the night of the alleged rape can, bizarrely, become a central issue in the trial.

Decades after legislatures began to try to write the practice out of trials, it is still routine for the defence to suggest that the complainant did not act in the way they “should” have done after the alleged sexual assault – as if there is a “right” way.

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If at all possible, the defence will attempt to convince the jury that the complainant fabricated the rape allegation by evoking a motive to lie. I have encountered numerous such claims over the years. Many of them are so spurious or implausible that it almost beggars belief that they are advanced as reasons why a person would put themselves though the ordeal of a rape complaint, investigation and trial. Claims that a woman falsely alleged rape to protect her employment or garner publicity and financial advantage may well be regarded as outrageous, but they are by no means atypical in the day-to-day conduct of Australian sexual offence trials.

In an estimated 50 per cent of sexual assault cases, the complainant’s intoxication is a familiar line of defence scrutiny. A complainant’s intoxication is routinely engaged to undermine the Crown case – in one (or both) of two ways. First, the alcohol or drugs ‘disinhibited’ the complainant (resulting in consent) and they simply cannot now remember their active engagement or they are embarrassed by their behaviour and now looking for ‘excuses’. Second, they were so intoxicated that they can’t remember what happened, or their memory is so partial and fragmented that they cannot be said to be a reliable witness. Again, such claims feature regularly in trials despite the scientific research literature showing that a witness who was drunk at the time of the events is no less likely to be inaccurate about central issues, even if their recall about peripheral details is imperfect.

In announcing that the sexual assault charge against Lehrmann would be dropped, the ACT DPP cites the “unacceptable risk to the life of the complainant”. This phrase evokes the enormity of what has been at stake for Higgins and should remind us about the toll that engagement with the criminal justice system can take on so many sexual offence complainants. This case and its conclusion also remind us that, 40 years on, the mission to transform sexual assault trials, and rid them of rape myths that work profoundly to the disadvantage of victims of sexual violence, remains unfinished.

Julia Quilter is an associate professor in the School of Law at the University of Wollongong.

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