Financial Review: Calls for more legal avenues for assault, harassment cases

With many women reluctant to report sexual assault or harassment, former district court judge Anette Schoombee says consideration should be given to non-criminal avenues for victims to pursue their culprit.

A highly respected decade-long veteran of Western Australia’s district court, Ms Schoombee also advocated for better education for victims and judges on the experience of women in the courts.

“The whole process starts from the premise on the defence’s side that you are lying or making it up or you are exaggerating. So, you have to recount a very traumatic experience under those circumstances,” she said.

“It is very confrontational for a complainant who has to give great detail about her sexual assault and will be asked repeatedly over and over questions about exactly what he was doing.

“Was the door closed, was it open, were your panties up or were they down, were they over your knees or under your knees?”Advertisement

Ms Schoombee said further training for judicial officers about what conduct is appropriate would benefit the system, while education for victims on what to expect could make the court experience less confronting.

However, given the high stakes in criminal proceedings, there was often good reason for vigorous questioning.

“If the offender gets convicted, he’s got a conviction for the rest of his life, and if he’s convicted of a sexual assault, he’s most likely going to go to jail,” she said.

Sexual assault survivor and consent education advocate Chanel Contos said the process made women relive their trauma over and over, “first to the police and then in court, and then there’ll also be the media”.

Many harassment and assault experts refer to the reporting process as a secondary trauma that often outweighs the harm of the initial crime.

Ms Contos is pushing for better sentencing options focused on education and training for a type of rapist she describes as the “entitled opportunist”: someone so privileged they believe their sexual desires are more important than anything else.

She said there also needed to be more alternatives to jail for perpetrators because it sometimes acted as a disincentive to victims coming forward.

“There’s a social stigma to reporting because our society has a perception of rapists as the sadistic type we see on Netflix documentaries,” she added. “It’s hard to think of going to the police about someone you probably know and trust.

“You also often don’t want them to go to jail and they don’t necessarily need to [in order to ensure they do not reoffend] … I think a lot more people would be willing to report someone they knew if they thought the consequences may not be as bad.”

Women who experience sexual harassment outside the workplace often feel they have few avenues to pursue their harasser, with the exception of launching potentially costly civil litigation under tort laws.

Ms Schoombee said it would be useful to investigate whether appropriate pathways existed for women to make complaints through a civil process that would have a lower standard of proof, less burdensome evidentiary standards, non-adversarial questioning but also less serious outcomes for respondents.

“It would be helpful to investigate whether there are adequate avenues for making a complaint to a civil tribunal,” she said.

“Civil inquiries could be dealt with on a much less confrontational level, allow a wider range of evidence and be perhaps also much quicker.”

For sexual assaults, anonymous reporting to police has also been raised as a mechanism to report in the first instance, following the success of NSW Police’s anonymous reporting system “Operation Vest”.

The operation aims to make victims aware of the NSW Police Sexual Assault Reporting Option (SARO), which enables them to share their story in an online questionnaire without formally reporting the matter to the police.

It does not trigger an investigation, with the information instead kept on file in case the alleged perpetrator is reported for similar offences in the future. Victims can choose to remain anonymous and alleged offenders are not notified.

Ms Contos, who worked alongside NSW Police on the operation, hopes this approach helps mitigate many of the factors that turn sexual assault victims off going to the police.

“It helps because you don’t have to go to a police station, your friend can do it for you or you can when you’re mentally able, and it still holds people accountable for their actions.”

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