The law and sexual violence: A troubled relationship

KATY HAMPSON
Volume 8, Issue 10

*Warning: Contains references to sexual assault *
Over this year’s winter break, I, along with many other JD students, took the intensive subject Evidence and Proof. We were lucky enough to have a guest lecture on the laws of evidence from Justice of the High Court, Kenneth Hayne. At the end of the lecture, he asked if anyone had any questions. From the back of the crowded lecture theatre, with perhaps a little shakiness in my voice, I piped up:
 

“What do you think of the law reforms regarding the questions allowed in cross examination of sexual assault victims, and do they go far enough?”
 
Asking that question set off a chain of events that affected me profoundly, leaving me uncertain about my future career and study. After that class, I was contacted by someone else who had been in the lecture. They told me how they thought it was great that I had asked that, but they were really embarrassed because they started crying and felt that they had to leave.
 
I felt so guilty. I knew that feeling, the feeling of isolation, of not being able to participate in a discussion that actually was so relevant and important and personal to you, because of the overwhelming emotion, shame and traumatic memories it brought up.
 
The previous semester I was taking a class called Cyber Law. One day, I came into the law school early so I could have some lunch and catch up on readings before class. I opened my readings and there, right on the front page, was the title “Rape in Cyberspace”.
 
I had no warning, no knowledge that this would be the topic of the readings this week. I swallowed and thought to myself, grow up, stop being so sensitive.
 
I began to read the reading and it was the most horrible and offensive way to go about presenting the topic.
 
First person, sensationalised, a rape narrative, acting as if this person as an “avatar” being made to do things at all compared to the actual bodily violation rape is.
 
I started to have flash backs thinking about what had happened to me. I felt tears forming in the corner of my eyes, while I sat there in the library where everyone could see. I don’t know why it affected me so strongly but I think that the fact there was no warning, no preparation I could take, was the main reason.
 
I went and found someone to talk to and then found ways to calm down and get back on track. I tried to attend the lecture but the lecturer insisted on showing a documentary about this topic, without saying when it would end, and I knew I wouldn’t want to watch it, so I left and didn’t know what time I could have come back to hear the rest of the lecture.
 
There is a right way and a wrong way to talk about sexual assault. Talking about it as a hypothetical concept, as an abstract, as something that could be divorced from the actual reality that is experienced by people, is something that only people who are lucky enough not to be sexually assaulted can do.
 
It leaves a lot of people who want to engage with the topic, who are close to it and have a stake in it, outside in the cold.
 
The conservative figure for the amount of women who have experienced sexual assault is one in six. The current trend of enrolments in law are that there are just slightly more female students than men.
 
Depending on class sizes, we could safely say that each class is likely to have at least 2 women who have been sexually assaulted. Not to mention the small percentage of men that have been. When we shut them out, either purposefully, or accidentally, through carelessness or through not even thinking that they exist, we limit their ability to learn.
 
Our university has sometimes been, and at times continues to be, an unsafe space for women. The most likely person to sexually assault someone is someone known to the victim.
 
I know several people who have to put up with the person who assaulted them being on campus.
 
Recently there was an outcry on social media by some male law students about the idea of creating a women only space within the law school.
 
It seems that instead of being concerned with why women weren’t feeling safe in the law school, people were concerned that they were somehow being slighted by this.
 
It can be hard to attend classes if you are in fear of the person who sexually assaulted you popping up around the corner. It can be hard to attend classes if you are suffering from post-traumatic stress disorder, which it is estimated affects to up fifty percent of sexual assault victims. And the law school does not record classes, and it expects people to attend them all.
 
Which brings me back to the lecture in which I asked that question of the Former Justice.  His response was the changes in the law helpful and a step in the right direction. But he admitted that we aren’t doing enough to make it so that victims can come forward and engage with the legal system. And then, resignedly, that he doesn’t have the answers. Which frankly isn’t good enough.
 
Legal theory taught us that critical legal theory is out of fashion, and that lawyers don’t think like that anymore. The law is the law is the law. But I don’t think I can think like that. I can’t watch people go to jail for petty theft knowing my rapist walks the streets. 
 
The hardest part about being a law student who has suffered sexual assault is the law itself.
 
The law is our advocate. The law is our adversary. The law is indifferent to us. The law is a system that is fundamentally flawed. The law is clueless.
 
Some days it feels like I’m studying just to know thy enemy. But mostly I want to be inside the law changing it, rather than waiting on the outside. And Universities need to support us all in doing this.
 
Katy Hampson is a second-year JD student

Melbourne Law School. Public Domain