By Karen Fredericks
Under the law of Pakistan, a woman's own evidence is not admissible in a court considering a charge of rape. A conviction may be obtained only on the evidence of four "reputable" male witnesses, or upon the confession of the rapist, repeated on four separate occasions. If a woman complains of rape and the charge is not made out then she is liable to the same punishment as an adulterous woman or convicted rapist: public flogging or death by stoning.
Under English common law in the 18th and 19th centuries, the direct source for Australian common law, rape was an offence against the "owner" of the woman who had been raped, either her father or husband. Women who were able to speak of rape were considered unworthy to receive the "protection" of the law against rape; thus a woman was unable to give evidence of any sexual offence against herself.
These overtly sexist laws may seem light years from the modern Australian legal system, but the assumptions behind them persist in the rape and sexual assault laws currently in force in most Australian states, and in the hearts and minds of the majority of legislators, police, magistrates and judges.
It remains the case, under Australian law, that a survivor of rape or sexual assault places herself in a an extremely vulnerable position simply by making an official complaint. From the moment of her report, attention focuses upon the physical evidence she can provide and upon her character, behaviour and sexual history.
If a rape survivor fails to prove she did not consent, to show the requisite bruises and to meet the necessary "moral" standards, legally she has not been raped.
In the US, so-called "civil rights" lawyer Alan Dershowitz (the lawyer conducting Mike Tyson's appeal against his conviction for the rape of Desiree Washington) has suggested that women who bring rape charges and fail to make out those charges should be punished with sentences comparable to those given to convicted rapists.
In Australia, only one in three rape cases results in a conviction. Even without the threat of stoning or imprisonment, the disincentive to report rape is such that fewer than one in four rapes are reported and less than half of the women who report rapes proceed with legal action.
Out of 255 sexual assault survivors who responded to the sexual assault phone-in conducted by the Victorian Real Rape Laws Coalition in April 1991, less than a third had reported their assault to the police, and only 40% of the assaults reported to the police resulted in legal action being taken.
Of the women who proceeded with legal action, 38% said they would not to court again if given the choice, and they would advise other women not to go through the process either. One woman encapsulated the problem when she said, "It took me longer to get over the court experience than the actual rape. I was treated as the criminal."
It is little wonder, then, that rape and other sexual assault continues to be a major, although largely hidden, problem in Australia. Australian laws continue to reflect a devaluation of the word of women and an acceptance of male dominance over women as "natural".
Under our laws, a person from whom money has been stolen is not required to prove harm has resulted from the theft, or that they did not actually make a gift of the money, but a rape survivor must prove that she was "damaged" and that she did not consent to the damage.
Under our laws, an accused person's previous criminal history and character cannot be evidence in a criminal case against him or her (except in sentencing), but a rape survivor's sexual history and "moral" character can become the evidentiary centrepiece in rape cases in nearly all Australian states.
Most states retain the requirement of "corroboration" in rape cases, a requirement based on the long-held notion that the evidence of the woman alone is suspect, or at least unreliable. Corroboration may take the form of additional witnesses, signs of struggle or other physical evidence, or evidence of "fresh complaint". In practice the legal notion of "fresh complaint" (report of the rape as soon as possible after the attack has taken place) assumes that failure to report a rape immediately implies that there was no rape.
Judicial attitudes to sexual offences, as expressed in judgments which interpret the statutes and become the common law, reinforce the bias of the written law and even accentuate it.
A recent example is provided in the Victorian case of Hakopian, in which Judge Jones of the Victorian County Court held that a convicted rapist's sentence should be less if their victim was a prostitute than if she was a "... happily married woman living in a flat in the absence of her husband when the miscreant breaks in and commits rape on her".
"One important consideration with respect to sexual offences", he reasoned, "is the effect on the victim. The forcible act of sexual intercourse very often has a serious psychological effect on the victim. I do not think that applies to the same degree [in the case of a prostitute]. On my assessment, the likely psychological effect on the victim of the forced oral intercourse and indecent assault, is much less a factor in this case and lessens the gravity of the offences."
Marion Brown of the NSW Women's Legal Resources Centre points out that the judge made a "common but false assumption in equating sex with rape ... [assuming] that it is the physical contact or act atic response many victims experience as a result of sexual assault.
"Rape is not just a matter of unwanted sexual contact and often has nothing to do with sexual gratification", she says. "It's about women losing control of their safety, autonomy over their bodies, and often fearing for their lives while being subjected to an attack."
The notion that rape is a sexual act rather than a crime of violence and degradation stems from a deep-seated sexism which dates from the days when women were no more than goods and chattels under the law.
The Real Rape Law Coalition in Victoria is an excellent example of women organising to force change to sexist laws. Its research and analysis have prompted a thorough review of the law relating to sexual offences in Victoria by the Victorian Law Reform Commission and have inspired a similar coalition in Queensland and a sexual assault phone-in, based on the Victorian model, in NSW.
Rape law reform is also one of the demands of the Reclaim the Night marches taking place around Australia this week. The marches both symbolise the right of women to live without the threat of violence and form a part of the ongoing political struggle to rid the legal system, and society as a whole, of sexism. The marches, an annual event in Australia since 1978, will take place in most capital cities and some other metropolitan centres such as Newcastle. (See pages 22-23 for details).