of spring last year, Luke* was called to the witness box at Melbourne’s County Court. “Nice big voice for the jury,” Judge Anne Hassan instructed the operations coordinator for a property services company, who stood before her accused of rape. “Yes, your honour,” the 25-year-old replied. But Luke would need more than a big voice to convince the jury of his innocence. Several things he’d done, before and after the alleged rape, were difficult to explain.
Holly Harris has a different story. Still very drunk, she remembers turning around in the shower to find Luke standing in the bathroom.. She remembers asking him what he was doing. And the next snippet of memory, like a scene from a roughly edited montage, has him on top of her, on her bed. Looking back, she believes she may have had a “fawn” response, a common and instinctive reaction of compliance aimed at minimising injury.
But accountability is one thing. Following last year’s high-profile rape trial of former Liberal Party staffer Bruce Lehrmann, many Australians might be wondering whether the personal price of going to court is intolerably high, an almost self-destroying pursuit regardless of the outcome.
But consent is just one element of a rape charge. The Crown must also prove beyond reasonable doubt that Jonathon did not reasonably believe she was consenting. The judges decided it was possible the woman had given him the impression of consent and quashed the rape conviction. In his reasons, Justice Forrest wrote: “It is plain that, as the normal English term ‘asleep’ is understood, there are various stages of sleep, ranging from deep sleep to something just short of full wakefulness.
A few of these directions are recent additions, but Quilter found that, in general, the ones that were available to judges during the period she studied were not used in a timely or consistent way. She found cases of judges forgetting to give them or disagreeing with them. She has little time for this sort of thing. “Well, you know, it’s the law,” she says, via phone toOlder “dinosaur barristers” pass on their playbook of how to defend a rape case with little attention paid to the changing law.
A month after the alleged rape, she broke down and told her mother Anthea about it. Encouraged by Anthea, Holly met with one of Victoria Police’s specialist Sexual Offences and Child Abuse Investigation Teams, which started looking into it. Holly then briefly dropped the complaint, thinking that, after being questioned by police, Luke would take the situation seriously. But when she heard, through friends, that he still denied responsibility, she reopened the case in mid-2019.