I originally intended Nolle Prosequi to be a book solely about the non-prosecution of sexual assault matters, but the definition of Nolle Prosequi has unexpectedly widened in this book to include the discontinuance of my own newly developed civil matters that are inextricably linked to the failed prosecution of my child sexual assault. And that’s really how the problem starts: when the Criminal Justice System (CJS) doesn't work for victims of crime, it leaves victims in an unenviable position still trying to find another forum for justice.
And if there are other contemporaneous matters that also rely on a conviction for success, like family law and child protection, then life gets even harder for the victim and their children once the criminal case fails. And the success rate of the OPP securing a conviction for sexual assault is 1% so the situation becomes dire. I tell fictional, manufactured client stories that show just how hard things get from my experience working as a Royal Commission lawyer (family violence and child sexual assault), family violence duty lawyer, child protection lawyer, and as a family lawyer.
However, life gets easier for the perpetrator, with a lawyer to provide legal representation, advice, adjournments, excuses, defences, alibis, pleas, and endless appeals. And 99% of the time the defendant’s crimes go unpunished. My criminal defence lawyer husband Jon Irwin also tells fictional, manufactured client stories from his experience as a lawyer whose clients accused of sexual assault win 99% of the time, just to complete the criminal injustice picture.
For those of you who have read the prequel to this book, my memoir Doli Incapax, you will know that my anger and frustration with the legal system had its genesis in my years as a young lawyer in a glossy ‘top five’ law firm. But my anger quickly snowballed as the gloss wore off and I realised that the law and sex assault are completely at odds with each other. Through legal practise in my hometown, Ballarat, I came to learn that it’s still survival of the fittest, or should I say the richest, man when it comes to sexual assault and child sexual assault, as women and children keep being denied, distrusted, and disbelieved!
And my old friend ‘Lady Justice’ whom I discussed in Doli Incapax; she’s still the only one in the court precinct warning me from the grave, “You’re going in blind lady, enter at your own risk!” for the gender war is still raging as ladies seeking justice are still being bloodied and battered both inside and outside the court building. She stands as a warning to all women pursuing justice, joining me in the chorus saying, “Don’t do it!” And to think that I once considered the courthouse a splendid backdrop for my wedding photos - cringe. Now I see her picture on the court wall as her headstone.
In 2017, at the launch of a new evidence-based resource for police and lawyers developed by Victoria Police to assist in breaking down misconceptions about sexual assault, former Attorney General, Minister and now Director of the Centre for Innovative Justice Rob Hulls stated that there is only a 1% conviction rate in sexual assault matters that are reported to police.2 So, that’s only 1/100 victims who get justice for sexual assault when they report, which means that the already woeful statistics in my first book Doli Incapax3 (a 3% conviction rate) understated the dire situation.
A great deal has happened in the past 2 years, both legally and personally, since I wrote Doli Incapax that I urgently need to update you on, matters of public interest that I consider to be deeply concerning including; The Australian Constitution, Statute Of Limitations, Deeds of Release, Doli Incapax, Suppression Orders, The Redress Scheme, The Apology, Lawyer X, The matters of George Pell, and other ridiculous legal capers. These legal updates all effect sexual abuse survivors in negative ways that appear to undo all the good work of the Royal Commission into Institutional Responses to Child Sexual Abuse. We have seriously gone backwards in our assistance to survivors. The truth is that nothing much is happening to make justice paths for survivors any easier. The legal landmines are still there. I will discuss these current issues and other important legal updates together with my compelling client stories; clients caught in the slipstream of unpunished criminal behaviour.
And this is what Nolle Prosequi is all about; the survivors and clients left in the wake of the Apology, the Family Law and Child Protection Systems, Intervention Orders, DHHS Applications, SOCIT reports and the courts after they disclose sexual abuse to the police. They are the clients that occupy the grey area that the law pretends it has no answer for - the 99% who come forward and disclose sexual assault all for nothing in real terms. People just like me that the legal system labels and processes as follows: ‘police complainant’ or ‘witness’ in a police matter; ‘affected family member’ in an intervention order matter; ‘plaintiff’ in a civil matter; ‘victim of crime’ in a VOCAT matter; ‘applicant’ in a family law matter, and ‘witness’ in a Royal Commission. People wronged seeking redress, justice or safety for their children and themselves. Truth tellers! Well, these truth tellers are all kept out of the court room as much as possible, but it’s not to save us from the trauma – I say it’s to keep the legal games playing without criticism. Victims of crime are also denied the right to a lawyer or to have any legal standing in a criminal matter. This is both shameful and legally untenable in 2020.
When the criminal act of sexual assault isn’t processed criminally through to a conviction, the victim is left with the following options: doing nothing further, seeing a psychologist or counsellor, applying for an intervention order, suing the perpetrator for physical and/or psychological injury in the County Court, making a VOCAT application, making an application under the Redress Scheme or other church scheme (if applicable), making a statement to a Royal Commission, trying 'restorative justice,’ and if all else fails, going to the media about it, or even writing a book like I have. The point is that the victim's energy and expectation after disclosure must flow somewhere when police drop it or it resolves in an unsatisfactory way as determined by police or the courts, with the victim having no legal say. The fact that a tribunal such as VOCAT even exists is telling about how the criminal and civil justice systems don’t work, as it acts as a giant safety net, as is the new Restorative Justice program; justice for sexual assault victims needs a separate program apparently, for its admitted by those at the top in our criminal justice system that victims hardly get anything like justice in our mainstream justice systems, as Doli Incapax so painfully detailed.
The burning question is, why don’t we fix the CJS instead by giving a victim legal standing and a lawyer rather than encouraging victims to by-pass it? After all, the CJS is and should be the proper forum for seeking justice for sexual assault because it’s a crime so why doesn't it work? My first book Doli Incapax has explored many answers to that question but the rising statistics of male violence towards women resulting in abuse, assault and death seem to conveniently miss the political agenda of the major parties, even though men’s violence against women is a pandemic.
In my view, politics remains a sexist and racist cesspool. Images on the television of male political leaders flanked by their pretty little daughters and wives grate on my nerves, for the statistics warn that those very girls also have a high chance of being in the same position as me after reporting sexual assault: livid with a result of nolle prosequi. A case ending in Nolle Prosequi contrasts with a case being dismissed, discharged, or withdrawn as they are completely different outcomes and have different legal consequences for both victims and defendants. Regardless, the biggest problem with all of these formal criminal outcomes is that they are entirely within the discretion of the OPP, and there is no way for a police complainant (victim of crime) to have a legal say in this decision making. The OPP solicitor asking you about your views is not the same as you giving instructions to a solicitor of your own who is obligated to act on them. A victim/witness/complainant has no legal say.
How do we know if the correct guidelines have been followed at the OPP? Has nepotism or politics crept into DPP decision making? Remember, complainants currently have absolutely no legal standing in any criminal case, a case that’s ironically all about what happened to them, yet they have no right to a lawyer. They are not even a party to the proceeding, yet I believe that they have the highest interest
