Calls for independent legal representatives for victim-survivors of sexual violence in Australia
Warning: This story contains details that may be distressing to some readers.
Laura Rowe will never forget how empowered she felt reporting the sexual abuse her brother subjected her to as a child.
"The process of deciding to go to the police was a really long one," Ms Rowe said.
"For me, the primary consideration was that I didn't want harm to come to anybody else.
"Slowly, over the years, it got to a point where I started to feel I was assisting in covering up his crimes."
Laura Rowe's brother was found guilty in 2022 of six counts of sexual intercourse without consent against a child. (ABC News: Toby Hunt)
Having just completed a law degree, Ms Rowe had an idealistic picture of what navigating the criminal justice system as a victim would be like.
"I felt a lot of power in handing it over to a system that was in pursuit of truth and justice for the betterment of the community," she said.
She was surprised to find the reality vastly different and struggled with the isolation of not having anyone in her corner.
"The prosecutor made it very clear to me that her obligations, at the end of the day, laid with the community and she couldn't act in my interests — I was merely a witness,"Ms Rowe said.
"Obviously, defendants are able to have a full brief of evidence — I felt like I had so much less information and there wasn't really anyone I could speak to, which I found really difficult."
Finding support in the legal system
After her brother's trial was committed to the Supreme Court of the Northern Territory, Ms Rowe sought independent legal representation, provided on a pro bono basis, and immediately felt supported and informed.
Critically, Ms Rowe's lawyer helped her to understand what to expect during cross-examination, which she still described as "awful".
"It was actually a very traumatising experience for me," she said.
"Having said that, I was able to go in there understanding what the process of cross-examination was about — to put that seed of doubt into the minds of the jury.
"I knew it was up to me to answer the questions in a way that was truthful, authentic and honest, and also not take to heart the things that were being said about me, that I was a very confused girl, that I was very malicious, that I'm a troubled mother.
"One thing my lawyer said to me that really stuck with me was that I had the most powerful thing and that was that I was telling the truth."
Ms Rowe's brother — a former senior NT parliamentary staffer — was found guilty in 2022 of six counts of sexual intercourse without consent against a child.
He was sentenced to five years behind bars, which were suspended after two and a half years.
Making the case
Sarah Rosenberg is the executive-director of the organisation With You We Can. (Supplied: Caitlin Duffus)
A new report by victim-led advocacy organisation With You We Can makes the case for all victim-survivors of sexual violence to have access to independent legal representation, like Ms Rowe did.
Executive director Sarah Rosenberg started the organisation after learning first-hand how traumatising navigating the criminal justice system can be for victims.
"It's difficult to put into words just how demeaning and belittling being just a prop in the pursuit of justice for your own rape feels," Ms Rosenberg said.
"The process wouldn't exist without me — we were prosecuting my perpetrator and yet, I was completely unrepresented in that process, and it was terrifying."
The report, What No One Told Us, highlights low reporting rates of sexual violence across the country and the fact that of those who do report, 85 per cent of cases do not progress to a perpetrator being charged.
"Of the 15 per cent of reports that result in charges, two out of five defendants have all charges withdrawn by prosecution, dismissed due to mental health or otherwise disposed of before verdict," the report states.
A new report, What No One Told Us, highlights low reporting rates of sexual violence across the country. (Supplied: Caitlin Duffus)
The report recommends a national rollout of independent legal representation for all victim-survivors to address those damning statistics, to be funded by the federal government.
That would mean all victims have early access to an independent referral point, where they are provided a lawyer who is independent of the prosecutor and prioritises the victim's interests during criminal prosecution.
"Giving victim's lawyers is not ground-breaking, it's really nothing new — Australia lags behind so many jurisdictions that give victims independent legal representation for criminal proceedings," she said.
"We're not trying to blow up our adversarial legal system, we're not trying to make victims a party to legal proceedings.
"We're just trying to make sure it's perpetrators that are the ones on trial."
The ACT, Victoria and Western Australia have introduced independent legal representation pilot programs, with all other jurisdictions to follow suit next year.
Ms Rosenberg said awareness of its availability among victims and frontline staff was minimal, the scope of the pilots was restrictive, and funding wasn't secure long-term.
"The funding needs to be long-term and ongoing so that we're not pulling out on victims halfway through the process and so that lawyers can adequately do their jobs without burnout," she said.
"It's also not going to get us anywhere if victims aren't aware that representation is available."
Victims are entitled to independent legal representation in some European countries, including Italy, Germany and Sweden, parts of the UK, the United States and Japan.
Professor Kerstin Braun, an Associate Head in the School of Law and Justice at the University of Southern Queensland, says victims have legal rights in Australia, which are set out in various pieces of legislation, but many aren't aware of what those rights are.
For example, victims have a right to be informed about different steps of the process, to receive certain information about their particular case and for their sexual history to be questioned in very specific circumstances.
"If a victim had the right to be independently legally represented, that would mean they would have one person who is exclusively in charge of safeguarding their rights,"she said.
"And they would also have legal standing at trial."
Professor Braun said that would be a game-changer for low reporting and high attrition rates, and especially during cross-examination.
"A legal representative during cross-examination who has standing at trial could actually then object to questions that cannot be asked," she said.
"Ultimately, they would be responsible for safeguarding the rights of the victim and that, in turn, would also give victims more agency about their own rights.
"It wouldn't be a third party as such, it would simply be a legal representative who is safeguarding existing rights."
There is disagreement among lawers about whether an independent legal representative is needed for sexual violence victims. (ABC News: Demi Lynch)
Professor Braun said Germany, where legal representation was possible as early as the point of reporting, provided a strong case study for the benefits of independent legal representation.
"Recent studies in Germany have shown that victims who are legally represented early on report that they feel more confident about the criminal justice system and that the whole process was a lot more transparent to them than those victims who are represented later on or not at all," she said.
"Ultimately, the hope in Australia would be that, through independent legal representation, victims have a better experience in the criminal justice system, that they don't feel traumatised and that it would also increase low reporting rates.
"And it would increase their overall trust in the justice system."
An 'unworkable' solution: barrister
Greg Barns, a barrister and former president of the Australian Lawyers Alliance, has significant hesitation about allowing an additional legal representative in cases of sexual violence.
He described the prospect as "unworkable", adding he had great confidence that prosecutors and judges were adequately protecting victims' rights.
"I've done a lot of sexual assault trials and I can indicate that the way in which questions are asked today is very, very different, and rightly so, to the way they were asked 20 years ago or even 15 years ago,"Mr Barns said.
"It's the role of prosecutors to ensure that there is fairness in the questioning, and they can object to lines or questions and, of course, it's the judge's role ultimately to ensure that questions are appropriate and relevant.
"And whilst you're going to get isolated cases where that doesn't happen, generally it does."
Greg Barns, former president of the Australian Lawyers Alliance. (ABC News: Steven Martin)
Mr Barns said he was supportive of victims having an advocate as an extension of the prosecution team in the pre-trial period, but to add a third lawyer to the bar table "had dangers attached to it".
"The problem with having a legal representative is that it complicates the trial process and it would also lengthen the trial process,"Mr Barns said.
"It would also increase the number of appeals.
"If there are concerns among victims, that they're not getting the support they feel they need, those matters are matters of policy that should be taken up by government with directors of public prosecution around Australia."
As for Ms Rowe, she believes giving victims access to a lawyer who has a seat at the table would greatly increase the community's faith in Australia's justice system — and that's a worthy goal.
"If you could convince me that the only way for fair trials to happen in this country was to re-traumatise victims, I would accept that as a necessary by-product," she said.
"But the reality is that actually treating people with dignity and respect is the very thing that would make this system operate how we think it does as a community."