SMH/ Opinion: When it comes to answering a key question about sexual assault, NSW is flying blind

BY JULIA BAIRD

That faint thudding noise you probably heard on Thursday afternoon was the sound of a thousand foreheads slamming onto desks when the NSW Police Commissioner, Mick Fuller, suggested that some kind of consent app would prevent sexual assault.

That we could swipe to say yes or no and the whole thing would be sorted. Bing! If it wasn’t such a poorly thought out idea I would hesitate before joining the fray throwing vats of rotten vegetables at Fuller. This is partly because I support well-intentioned people who hoist new ideas up flagpoles and partly because he has been trying to increase the number of women in the police force, and recognises the criminal justice system is failing women.

But this is why the app was such a daft idea: it would be outsourcing responsibility to an app – and dating apps have hardly been citadels of female protection – that could be easily manipulated by coercive abusers. The idea is also seemingly based on the false premise that consent occurs only once, for everything. A blanket permission slip for all acts, unable to be withdrawn. All the app would do is provide cover for rapists who would insist at some point a box was ticked. Which is why it was instantly howled down.

What the entire debacle revealed was an astonishing blind spot in an influential leader. And we’ve seen so many of those blind spots lately from leaders when it comes to discussing rape and the treatment of women, so much incomprehension and tone-deafness, that we must dissect and discuss them.

Commissioner Fuller told the press conference that the number of sexual assault cases coming to the police was increasing annually – by 10 per cent last year – and the system was “overwhelmed quite often”. So he hoped the “app would stop people going into the justice system”. But isn’t the point to stop sexual assault, and to make the justice system actually work for victims?

Of all violent crimes, sexual assault is the least likely to be reported, investigated, prosecuted and convicted. And it’s getting worse: more women are withdrawing reports of assault every year, more police are rejecting or “clearing” their reports and rates of arrest are dropping.

As Fuller pointed out recently, only 10 per cent of the sexual assaults brought to the police result in charges, and less than 10 per cent of those result in convictions. And as economist Andrew Inwood, chief executive officer at CoreData Research pointed out to me this week, that is effectively zero: “A 1 per cent sample on any number is something I have effectively zero confidence in .”

It’s galling and horrifying, an epidemic our justice system is unable to stem. But this is something you might imagine the chief of police could do something about. I have no doubt Fuller would like to. He told the NSW budget estimates committee this month that in order to tackle the “extraordinarily high” reporting of sexual assault (even given the fact it is woefully under-repoted), “We are reviewing the entire gamut of our role in this part of the justice system to see if there is something we can do. If you look at domestic and family violence back in 2010 we turned that on its head and became pro-prosecution. Now that caused enormous grief and we lost a lot of matters in court. But we drove change by being pro-prosecution.”

So how to drive change here? Why are so few rapists convicted? First, some low-hanging fruit: data collection. Of all Australian state and territory police forces, NSW Police is the only one not to keep records on why a sexual assault allegation does not lead to legal action. According to a fascinating and important ABC News data investigation into police handling of sexual assaults over a decade, police reject one in 10 reports and victims withdraw one in five.

One in five! So the fundamental question is: why? And why does it vary so much between jurisdictions? Queensland rejects 20 per cent of reports, Tasmania only 5 per cent. Is it resourcing, training, bias? Is too much left to police discretion? Are cases dropped through lack of evidence then recorded as “unfounded”? These records are crucial in identifying systemic failings.https://omny.fm/shows/please-explain-1/the-aftermath-of-march-4-justice/embed?background=f4f5f7&description=1&download=1&foreground=0a1633&highlight=096dd2&image=1&share=1&style=artwork&subscribe=1

The ABC investigation, by Inga Ting, Nathanael Scott and Alex Palmer, looked into the outcomes of nearly 140,000 sexual assaults reported to police between 2008 and 2017 and found that sexual assault investigations in NSW and the ACT are half as likely to lead to legal action as they are in Victoria. Why? Why are one in every five reports of sexual assault “unfounded” in Queensland, while across the border in NSW only one in 20 are? Why do one in three withdraw in Darwin? Why are so few cases pursued by police in the Northern Territory? Are we satisfied with this?

Things have got worse in the past decade as fewer reports of assault are likely to end up in the courts. Again, why? What we lack are answers to all of these questions, although experts provide some clues.

One is the attitude of senior management. Melbourne University sociologist Kristin Diemer found in her research that the best indicator of improved investigation outcomes is “good senior-level management who are really monitoring what is going on and have … the right belief system that would support sexual assault reporting or family violence reporting, then you get a workforce who actually implement the code of practice the way that they should.”

Meanwhile, former NSW Director of Public Prosecutions Nick Cowdery and social science Professor Don Weatherburn (former director of the NSW Bureau of Crime Statistics and Research) support a national inquiry into why and how so many reports of sexual assault are being withdrawn and dismissed, or rejected by police, because the rates are uncommonly, suspiciously high in some areas.

There are myriad unresolved questions about police handing of sexual assault cases. This is why so many people roared when the police commissioner veered into technologically fraught territory. The police force is littered with well-meaning and hardworking cops who have dedicated their lives to addressing sexual assault as well as those who do not adequately understand how to deal with victims of trauma. The stories abound – of drawn-out investigations, of insulting or intrusive questioning, of women discouraged or disbelieved. Some police, of course, are genuinely concerned about victims being further traumatised in court, being shredded by systems that doubt them.

Recent reviews in Victoria and NSW have shown substantial cultural problems with sexual harassment attitudes to women in police. The pressure for women-led specialist police stations may grow, and for women in leadership positions. The number of women on the frontline in the NSW force increased by only 1.1 per cent in the decade to 2019.

The task is as urgent as it is enormous. And archaic attitudes, or lack of comprehension about consent hold everyone back, including juries. So this discussion is important; what and how we all think matters.

Commissioner Fuller said often in court you have both a credible victim and forensic evidence but juries are stymied when “an issue of consent is raised”. Let alone, he said, historic matters where there is no forensic evidence, “and then the journey for victims who get cross-examined potentially by the offender, it’s a horrendous journey”. The system is broken: it is those who have travelled this horrendous journey – Grace Tame, Saxon Mullins – who are now leading the reckoning.

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