Legal columnist HUGH SELBY offers a spirited response to an opinion column by Kelly Saunders in which she posed the question over a defendant’s right to silence in a sexual assault prosecution. Selby argues she’s wrong… 

I don’t think I’m alone in wishing that the standard bearers of “we women are victims of male aggression” would pause for long enough to think through how denigrating such an overstated assertion is of all those women who are not victims, and all those males who are not aggressors. 

These unremarked fellow citizens might just be the majority.

Writing early this week about the outcome of Bruce Lehrmann’s defamation trial I hoped that it was put to bed and that we could all move on.

Alas, not so. The flag bearers for a new age, one which ignores the rituals of human “sexual attraction”, seem to think that the results of the defamation trial justify their 21st century return to the fear driven “witchcraft trials”, but with this difference: male devils replace female witches.

Bruce Lehrmann chose to bring a civil action. The outcome doesn’t just show how foolish he was. It also shows that there is a real, powerful difference when the civil standard of proof, “balance of probabilities”, is applied instead of the criminal standard of “beyond reasonable doubt”.

In earlier articles I have called for a serious look at giving a person who asserts that s/he has been sexually assaulted the right to take a civil action (seeking money compensation from the alleged aggressor), rather than being compelled to opt for being a complainant in a criminal trial, beholden to the whim and talent of police and prosecutor. (Note: there are cases where the State must, in the interests of us all, prosecute.)

It is so much easier to get over the line on the civil standard. What’s more, while there is – for good reason – a “right to silence” in criminal matters, a defendant in civil matters who fails, after the plaintiff has given a credible, coherent account, to go to the witness box and give the “other version” is going to lose.

The well-meaning author of an article this week (here) asserts that the failure of the criminal trial and the recent success in the defamation trial in showing that he did rape his fellow staffer, “compels us to think more creatively about approaches to prosecuting sex crimes, acknowledging a stark reality: in an ‘adversarial’ legal system, a fair trial in these cases is rarely achieved by providing one of usually only two parties with a right to silence.”

The quest for a “fair trial” is much broader than satisfying a niche campaign to whittle down well-founded legal fundamentals to advantage a “we should be believed more than anyone else” group of complainants. 

The criminal standard of proof, the power and resources imbalance between State and accused, and the fundamental nature of our “adversarial system” come together to entail that the “right to silence by an accused” is, and must remain, a component of our criminal trials. 

I endorse the need to “think more creatively”: that’s a path that might be wider and nicer if “restoration of self” rather than “vengeance will be mine” was emblazoned on the traveller’s T-shirt. 

The article then suggests the following:

• Despite ongoing reforms to improve things, victim-survivors of sex crimes still regularly face abuses of process in the current system.
• This includes a culture of defence barristers using rape myths to destroy a victim’s credit as a witness. It also includes women being silenced by the law from talking about their experience and trauma.
• Lee’s masterclass in sorting the evidentiary wheat from the chaff shows how judges with solid understandings of trauma and sexual assault are perhaps better suited than juries to navigate complex legal concepts such as “probative” and “prejudicial” evidence and witness “credit”, as they apply to sex cases.

It is troubling that these claims of a dangerous culture, rape myths, and being silenced are repeated over and over. 

The “being silenced” attacks the professionalism of police investigators and prosecution staff.

The use of the term “rape myths” and the implied inadequacy of juror understanding is an attack upon every one of those Australians who has sat on a jury and contributed to the combined evaluation of all the evidence put before them. 

It’s true, to err being human, that jurors can get it wrong. So too can judges. So too can commentators. But exceptions do not make the rule.

To assert that competent, ethical defence barristers can, or would, deceive the jurors with “rape myths” is as wrong as it is improper. Barristers have a duty to the court. They must not mislead. Jurors are not dumb.

That is not to deny that all of us are much better informed than a generation ago about the need to be mutually respectful in relationships, and the requirement to be so when either or both are thinking about sex.

That means being aware of boundaries, assuming nothing, understanding what flirtation entails, and respecting our sexual partner (hoped for, or actual).

It’s Anzac Day: time to remember what the fallen bequeathed us – a safe world, providing we make the effort to keep it so.

Former barrister Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

In sexual assault, is the right to silence wrong?

How Lee nailed the Lehrmann defamation judgment