Few victims of sexual assault will report the crime to police – even fewer will see the inside of a courtroom.

There’s one key element common to a staggering number of sexual assault cases that experts believe the justice system is yet to properly confront.

Warning: This story contains details of sexual assault. 

When Bec was allegedly raped, she thought she did all the right things. She went to the police. She saw her doctor. She told her psychologist and friends.

But she was told the alleged perpetrator would not face prosecution, in part because her memory was clouded by alcohol. 

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The law where Bec lives – Tasmania – is clear. If a person is too drunk to make a rational decision to consent, they cannot consent. Bec told the police she couldn’t fully remember what had happened, but the alleged perpetrator confirmed in a text that they had unprotected sex. She had spoken with two close friends soon after the alleged assault, and one had even filmed her distress in case it was later needed as evidence.

“Even with all the tick boxes, it still wasn’t good enough,” Bec said.

“Is it when it’s only violent? Is it when it’s a total stranger? Is it when it’s only that you’re sober, or that there’s no alcohol or drugs involved?

“It has to tick these very small boxes, which we know isn’t the case for most rapes.”

Academics estimate alcohol and other drugs are involved in about half of sexual assaults.

Experts told 7.30 the justice system particularly struggled to respond to such cases.

One of them was Full Stop Australia’s client and clinical services director, Tara Hunter.

“We still see attitudes that people make false allegations because they woke up in the morning and regretted what happened,” Ms Hunter said.

“We need to create a system where people feel much safer to come forward.”

‘I didn’t remember it’

Bec and Tom* were what she described as “surface-level friends”.

One night, they met for drinks at a bar. The night started with a shared bottle of wine.

Tom shouted her a third drink, then a fourth. About 15 minutes into that fourth drink, her memory became patchy.

“I recall him saying to me, ‘Oh, we need to get you out of here,'” Bec said.  

“My next memory is … walking back to the car,” she said.

“And it’s a couple of seconds of memory where I kind of reflect to him, ‘Hey, like, we shouldn’t be driving’.

“And he goes, ‘No, it’s fine.'”

“My next memory is getting out of the car outside my house.

“And then my next memory is the rape, and I really have one very small memory of that.”

The next morning, one of Bec’s friends encouraged her to contact Tom to confirm exactly what had happened.

“His response to me was, ‘Hey, yes, we did have sex last night, sorry that you don’t remember it, I also didn’t use protection,'” Bec said.

Bec said she felt “overwhelmed” when she read Tom’s response.

“I think the part that shook me the most was the blatant kind of disregard for the fact that I didn’t remember it,” she said.

“I thought that might be a clear sign that, hey, something awful had happened. I think if I was in that circumstance, I’d be pretty shocked and appalled by the thought that someone I had sex with didn’t recall it.”

The police process

At the urging of a friend, Bec contacted Tasmania Police. She was buoyed by supportive interactions with the assigned detective and pushed forward with a formal report.

But her feelings about the process from that point are “complicated”.

Rewatching CCTV from the night was traumatic, and toxicology, which was testing for alcohol and drugs, took six months rather than an expected four weeks. 

Police believed neither would help prove her case. She was told she did not look “too intoxicated” in the footage taken by security cameras as they left the bar – despite her view she was unsteady on her feet – and the results of the blood test were inconclusive.  

A Tasmania Police spokeswoman acknowledged the toxicology delay: “While six months is not in keeping with expected time frames, unfortunately, this process can take some time due to the complexity of testing, required processes and workloads.” 

Bec believed a video taken by a close friend soon after the alleged assault, which she said showed she was disoriented and distressed, was not given enough weight.  

But most shocking was speaking with a second woman who alleged she had a “troubling” experience with the same man.

At the end of the almost year-long process, the Director of Public Prosecutions (DPP) recommended against prosecuting Tom. The decision was communicated to Bec over the phone by police while she was at work.

“The feedback from the DPP was, you don’t remember it, the CCTV footage could be used for mistaken consent.

“My first reaction was, this is why I didn’t want to report. I didn’t think I had a chance in terms of obtaining a conviction or result from this from the get-go.

“If the reason that I don’t remember is the reason that you won’t continue, in what case does this get prosecuted? Who has a chance?” 

The DPP’s office said it was unable to comment on individual cases.

Calls for reform

Tasmania was one of the first jurisdictions in Australia to pass legislation requiring sexual consent to be communicated by actions or words.

Associate Professor Terese Henning is the former head of the Tasmanian Law Reform Institute. While not commenting on Bec’s case, she said sexual assault cases involving intoxication were challenging to prosecute.

“You have to prove that sexual intercourse actually occurred, and you have to prove the absence of consent, and all of those things have to be proved beyond reasonable doubt,” she said.

“Sexual offences cases are often really, really hard, because they’re word against word cases, and so if the only thing that the prosecution has to rely on is the account of the complainant, and there is no other evidence substantiating the complainant’s account, then that can make things very difficult.”

Ms Hunter said victim-survivors who were intoxicated at the time of a sexual assault often did not report the incident because they feared they would not be believed.

“There’s still a lot of work to do in terms of what happens at that front end, when people walk in the door and say that they’ve been sexually assaulted,” Ms Hunter said.

World-first research published earlier this year examined the accuracy of memories of intoxicated people.

A team of researchers led by Professor Heather Flowe in the United Kingdom conducted a study involving 90 women who were randomly assigned to drink three vodka and tonics, or just tonic water, in quick succession.

They were then engaged in a hypothetical scenario centred on a date with a man named Michael, who made progressively aggressive then non-consensual sexual advances depending on their responses.

The women were interviewed about the situation a week later.

Professor Flowe said the study found while intoxicated women remembered fewer details than those who were sober, the details they could recall were equally accurate.

The University of Birmingham senior lecturer told 7.30 she believed greater knowledge about her team’s findings could result in fairer outcomes for victim-survivors.

“Where the problem comes in is where the police repeatedly question people about details where they’re less certain, and if you engage in that kind of interviewing practice, then you find that the memory report is less good,” Professor Flowe said.

“The other thing is that if the public were more aware (of our findings), then when they serve on juries they would be less likely to think that when individuals report that there are gaps in their memory that that means the whole of the testimony is inaccurate.”

But Professor Flowe emphasised that there were times memory was not relevant at all.

“If a person is completely blacked out, for example, and they’re sexually assaulted, that’s a crime,” she said.

It was a sentiment echoed by Ms Hunter.

“In my experience working with victim-survivors, they often have their own set of questions around what’s happened, they do have gaps in their memory, but they’ve woken up questioning something for a reason, because it doesn’t feel okay,” she said.

A stacked system

According to the Australian Institute of Health and Welfare, almost nine in 10 women who were sexually assaulted in the past decade did not contact the police.

“As we sit here today, we know 87 per cent of people that experience sexual violence in our community don’t feel free to come forward to seek a justice response,” Ms Hunter said.

“If you’re someone that’s perpetrating sexual assault, it is highly unlikely you’re going to get caught, and if you get caught, you may not have any kind of accountability for your behaviour.”

Associate Professor Henning said consistently low conviction rates suggested the system was stacked against complainants.

She told 7.30 it was time for major reform, saying it should be on the defence to prove an encounter was consensual on the balance of probabilities – instead of the prosecution having to prove the absence of consent beyond reasonable doubt.

“I think that we have gone really far down the track in making the law in Tasmania as good as it can possibly be, but if we’re still not managing to shift these myths and stereotypes, and problems of perception, with juries, we probably need to do something much more radical,” Associate Professor Henning said.

“It subverts, to a degree, that golden rule that the prosecution must prove its case beyond reasonable doubt … (but) things are so stacked in favour of the defence that some leavening of the burden of proof can be justified.”

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Tasmania Police declined an interview. A spokeswoman said in a statement: “Tasmania Police takes all reports of sexual assault seriously and we are committed to ensuring victim-survivors are supported in a trauma-informed way.

“When making a report, victim-survivors are provided with information about their range of options, including evidentiary considerations.”

The spokeswoman said police were trained in interview and investigative techniques, as well as intoxication.

“This training, delivered in conjunction with the University of Tasmania, includes role-playing scenarios to identify indicators of intoxication, and adapting the police response accordingly,” the spokeswoman said.

‘If you don’t remember it, you can’t consent’

Bec is sharing her story publicly for the first time because she wants to contribute to the national conversation about sexual assault.

She is supportive of affirmative consent laws, which require all parties in a sexual encounter to seek and express consent, but said such legislation only works when it is understood and able to be enforced.

“My interaction with the police didn’t reflect affirmative consent,” Bec said.

“I think affirmative consent is if you don’t remember it, you can’t consent.” 

Bec believes changing attitudes in police stations and courtrooms starts with changing the every-day conversations people have at school, work and home.

“When we have these what we might consider kind of mundane conversations amongst ourselves, thinking, do we believe her, do we not, it just reinforces that you don’t talk about it,” she told 7.30.

“I hope that by more people speaking out, we can really hand back that shame to the people that hurt people.”

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Credits

Reporter: Emily Baker 
Photography and videography: Maren Preuss, Shaun Kingma
Graphics: Nina Maile Gordon, Chan Woo Park 
Digital production: Jenny Ky, Shiloh Payne