By Karen Fredericks
The ignorance and sexism evident in judicial comments made in the course of several recent rape cases have spurred a flurry of surprise and concern in the media and amongst politicians. 91×ÔÅÄÂÛ̳ spoke to feminist activists in three states who have not been surprised by the comments, who don't see a judicial education program as an adequate response and who are involved in practical and political struggles against rape.
The night before our interview, Edith McNeill, a worker at the Victorian Women's Refuge Referral Service, took a call from a sexual assault centre on behalf of a woman who had been raped in her home and who needed a safe place to which she could escape.
Edith checked the refuge board for a placing and discovered that the board was full. As usual, there was nowhere available. The caller, like the 2300 callers in Victoria last year for whom no refuge could be found, was left to fend for herself.
Only 19% of women seeking emergency refuge from violent situations in Victoria last year were successful. Edith and her co-workers are placed in the impossible situation, as she puts it, of "having to ask for precise details of the degree to which the caller is being assaulted, so we can make a judgment" on her relative need.
Edith is also the worker at her centre responsible for "legal and police" issues for women and children escaping domestic violence. Her position is funded to allow 12 hours per week on this "portfolio", which she is presently using to produce a handbook for women escaping domestic violence, in association with the Victorian Police.
Although she has been outraged by the comments of judges in recent rape cases, and eager to capitalise on the public outrage it has generated, she has found her ability to make an impact severely limited by time. She regrets, "We are so inundated with
delivering a service to women and children that we are often unable to respond to broader political issues such as the recent comments by judges and magistrates".
That's why Edith is so excited to see the formation of a new campaigning group in Victoria, the Justice for Women Action Collective, formed on the initiative of women at Melbourne University in response to the comments by Justices Bollen, Bland and their brother judges around the country.
The group is organising a rally to present feminist demands around rape and the law, and funding for women's services, to the Victorian attorney general on Saturday, June 12. Women from rape crisis and refuge services are involved in the group, but there are also students, activists and women who have only recently been propelled into action by Judge Bland's assertion, in a Victorian County Court, that "... no often subsequently means yes".
"I've been very impressed with the energy in the collective", says Edith of the two meetings she has attended so far. "At the second meeting we went around the group and women identified why they were interested in joining, and there were a number of women who said they were interested in joining because they are in fear for their own safety."
Centre closed
In South Australia, home of Justice Derek "rougher than usual handling" Bollen, women are facing the closure of the Adelaide Rape Crisis Centre by the state's ALP government.
On May 11 workers at the centre were informed, by fax, that the cabinet had unilaterally decided to "amalgamate" the centre with the state's hospital-run Sexual Assault Services, thereby disbanding its feminist management collective, destroying its political independence and placing it firmly within a conventional medical/social structure and philosophy. Supporters of the centre see this as destruction, not amalgamation, of the service.
The Adelaide Rape Crisis Centre was established in
1976 by a group of feminists to provide support and counselling for women who had experienced sexual assault, and to provide a forum for discussion of the political issues surrounding rape, especially within the legal system.
The centre is located in an old house, complete with a lounge room in which women are welcome to sit, drink tea or coffee, chat, read or simply enjoy some time in a safe place. The centre offers individual counselling, self-defence classes and training for groups of nurses, teachers and other professionals.
Like Edith at the Victorian Refuge Referrals Service, the workers in the Adelaide centre find they have little time left for political activity in the broader community. One of the counsellors, Claire, says that the attacks on the centre by the government have contributed to this inability to get out and activate the community.
"Because of what we've had to fight in the last year", she says, "being put on committees and working parties to make decisions about cutting this and amalgamating that, it has taken our energy away from getting out into society to push for change.
"If there is this constant bureaucratic shuffling, paperwork and battles, then that keeps you within your organisation, fighting for your own survival. It stops you from going out to society, to try to change society."
But the workers and supporters the ARCC are determined to keep their centre open, independent and politically active. They have taken legal advice on how to prevent their name, and their few assets, being taken by the government, and they have begun a public campaign against the amalgamation, focusing on a meeting of the SA Labor Party Council scheduled for the evening of June 10.
"Cabinet made this decision", says Claire. "It didn't even go through caucus, so not only did they not consult the women of South Australia, they didn't even consult their own party."
The minister for the status of women, Ann Levy, has
been called to give reasons for the amalgamation at the Labor Council meeting. Members of the council have already been approached and given reasons why they should vote to condemn the decision, but they will receive further encouragement from a rally which will assemble outside the meeting venue, Trades Hall, at 6 p.m., to hear speakers, watch street theatre and make their opinions heard. Organisers have selected "No still means no" as the slogan for the rally.
"We're saying 'no' to this decision", Claire says, "but we're also saying 'no' to the ignorance that's coming out of the judiciary's mouths. This is all about rape in our society, the ignorance of the politicians and the ignorance of the judiciary. It's an outlet for women to just come and scream their lungs out and get really loud about it."
Review
When the Goss government was elected in Queensland in 1989, the new attorney general, Dean Wells, moved quickly to set up a committee to review the state's century-old Criminal Code, a huge document which contains every criminal offence from shoplifting to murder. The review was obviously overdue, but unfortunately the committee he appointed was all men and all lawyers.
The interim discussion paper the committee produced in 1991, which covered about half the code and most of the provisions relating to personal offences, did not impress women working with sexual assault and domestic violence.
Community workers from a variety of women's services — Brisbane Rape Crisis Centre, Women's Legal Service, Domestic Violence Resource Centre, Women's Health Centre and others — met to discuss a response to the paper. Zoe Rathus, legal coordinator of the Women's Legal Service, told 91×ÔÅÄÂÛ̳ that although there were many things the women wanted to say, especially on the law relating to sexual assault, they were daunted by the size and complexity of a task they would have to fit around their casework and other obligations.
"We met a number of times to talk about how [the
discussion paper] wasn't good enough", she said, "but even though many of us had written law reform submissions and had a reasonably sophisticated knowledge of the issues, we were still daunted. There were no avenues through which we felt we could respond."
The group finally received funding from the federal Office of the Status of Women to hire a consultant, Zoe Rathus, to write the report. The result is a wide-ranging gender analysis of the Criminal Code, including suggested draft legislation, entitled Rougher than usual handling: Women and the Criminal Justice System.
One third of the recommendations in the report relate to rape and sexual assault. The sexual assault chapter was produced by Zoe in consultation with a working party consisting of volunteers at the Women's Legal Centre and a worker from the Brisbane Rape Crisis Centre. Comments by other rape crisis workers were included after a period of consultation using a draft of the chapter. Zoe believes, "It is a product which, to a large extent, reflects the way women working at the grassroots with rape survivors feel about the way the law should go".
The recommendations focus on the elements of the law which impact on a rape survivor as she goes through a rape trial.
For example, central to the recommendations are provisions relating to consent, specifying that consent should not be presumed from inaction on the part of a woman. Previous, but withdrawn, consent, payment for sexual services and absence of physical injury or signs of struggle are specifically excluded as conclusive evidence of consent. A number of circumstances, including physical and other threats, intoxication, abuse of authority and various forms of deceit, are stipulated to negate consent automatically.
Broader battle
Zoe says she and the other women involved in the project see their work fitting into a far broader battle against violence against women. "Reforms to
the black letter law will only be a very small part of what is going to improve the system for rape survivors", she acknowledges.
"But a lot of the complaints women have about what happens to them in court can be sourced back to our ridiculous laws about evidence and the rules about what can and can't be asked about a complainant's sexual history, particularly their history with the accused, the rules about 'fresh complaint' [how quickly a rape survivor reports the rape] and 'corroboration' [the need for evidence other than the oral evidence of the survivor, which judges in some jurisdictions must warn is 'unreliable']."
But Zoe also points out that most rape survivors never even get to court. In 1991, for example, only 6% of formally reported sexual assaults proceeded to conviction of any offence. Rougher than usual handling she says, asserts the need to look at the whole system into which rape survivors enter once they decide to report, including medical workers and police.
The limits of a pure "black letter law" approach are also illustrated by disturbing research in NSW which has shown that even where the law has been reformed, courts continue to operate in the old ways. In NSW there have been major changes to procedural law on the issue of evidence of previous sexual history, making such evidence irrelevant in sexual assault cases. Studies of court transcripts reveal that defence lawyers, magistrates and prosecutors continually flout the new laws.
Zoe Rathus believes closer monitoring is required so that, for example, prosecutors learn to make objection to questions which are inadmissible under the new laws.
In Victoria, where the Real Rape Law Coalition successfully submitted on issues similar to those covered by the Queensland submission, similar problems have arisen under the new Crimes (Rape) Act proclaimed earlier this year. The coalition has called for the establishment of a community-based advocacy centre which would act as an independent watchdog over the new laws and practices. This suggestion has not
received government support.
Penalties
The Victorian coalition has also been frustrated by the concentration of the media, and politicians of both the Labor and Liberal Parties, on the introduction of harsher penalties for sex offenders. In the overall legal context, they argue, harsher penalties are unlikely to make much difference for women who are sexually assaulted.
Lea Corbett, an activist in the coalition, has called concentration on the penalties end of the legal system "misguided", considering that "the overwhelming majority of sexual assaults committed are not reported to the police or, if reported, the offender is not charged or prosecuted by the State".
Likewise, the preoccupation of the mainstream with judicial education as a solution seems somewhat of a furphy.
"The impression is coming through that if only judges said the right thing in court everything would be fine", comments Zoe Rathus. "But rapes get excluded from the legal system at so many stages that by the time you get to the point of judges making comments during a trial and then the even further point of a conviction and a sentencing, the percentage of sexual assaults you're talking about is microscopic."
Rougher than usual handling was handed to the Queensland attorney general on April 5. Zoe says the women who prepared the report have not been advised of the process by which it will be considered and there has been no official response.
"We are having an official launch of the document on June 22 at Parliament House", she says. "Our intention is to ensure that the public has an idea about what's in our document because we want the debate to be broadened. We're concerned that because of the difficult process involved, the community have had no opportunity to understand what's going on, much less contribute to the debate."
There can be no doubt that community awareness of violence against women has increased markedly in the decades since the second wave of feminism swept Australia in the 1970s. Rape crisis centres, women's legal and health services, refuges and, more recently, domestic violence resource centres, have played a critical role in this revelation, but they can only do so if they are supported to remain political, active and independent by a political, active and independent women's movement.
In recent weeks the Victorian Police Service conducted its own sexual assault phone-in, Operation Pegasus, with organisers admitting that they were unprepared for the enormous response. Police who were answering calls during the operation wept openly and comforted each other. Ten extra phone lines had to be connected to cope with the demand. The organiser of the phone-in, Dr Antony Williams, wept during a Radio National interview when asked what stood out for him from what he experienced during the operation.
There is also a shift in media focus, away from titillating stories about "sex crimes" to at least some reportage of the terrible experiences of the rape survivors who battle the ignorance and sexism of the legal system, forcing our politicians to make a response, for all its inadequacy.
But we are in the middle of the battle, not at the end of it. Women's services are still under-resourced, and their government funding ties them, now more than ever in this period of the ALP's "economic rationalism", to a never-ending slog of individual casework — dealing daily with situations which would reduce the toughest of us to tears.
The situation of the Adelaide centre, too, is not unique. These battles for mere existence also take energy away from political activity. Our gains can be take from us at any time, if we are not prepared to continue to fight for them.
Women are fighting now, and have been fighting for years, against rape. The instances mentioned in this article are just examples of those many and varied struggles. They illustrate the importance of building on our gains, of defending our hard won achievements
and of eternal political vigilance.