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Many aspects of sexual assault law are ‘broken and wrong’
In conversation with Grace Tame, Sydney lawyer Michael Bradley recently discussed the sexual assault legislative reform he is working on with the former Australian of the Year, how to support survivors in a way that empowers them, and the care that must be taken when involving media.
Jess Feyder
Image credit: Marque Lawyers
Mr Bradley is a partner at Marque Lawyers and chair of Rape and Sexual Assault Research and Advisory (RASARA).
After the conference, Mr Bradley joined Lawyers Weekly and discussed the legal reforms he is working on with Ms Tame and her foundation, and RASARA.
“Grace’s main push at the moment is around getting rid of some of the language in sexual assault laws,” Mr Bradley explained.
“Child sexual assault laws in some states still describe it as ‘maintaining a relationship with a child’ instead of persistent sexual abuse,” he shook his head.
“There are four jurisdictions that still have that completely inappropriate language — we are pushing to get that modernised and made more consistent across jurisdictions,” he said.
With RASARA, the focus has been around consent, pushing the affirmative consent model for rape in both NSW and Victoria. “This has led to reforms which move towards affirmative consent,” he noted.
“There are many aspects of the law in this area that are broken and wrong.
“One of the things Grace has achieved, which is unprecedented, is getting all eight state and territory attorneys-general, and the federal Attorney-General, in a room and getting them to agree in principle on some basic issues.
“That has triggered a review that is being conducted cooperatively among all the jurisdictions, led by the federal government,” Mr Bradley detailed. “It is based on a paper we wrote and put in with Grace’s foundation, looking at some specific issues, and pushing towards consistency.”
“It’s very hard to get any kind of cooperative reform in criminal law,” he explained. “The states tend to go their own ways, so it’s a big step forward to get that level of co-operation happening.”
“There’s reason to be optimistic,” he stated. “The subject matter is very topical because of Grace and other survivors who have been stepping forward and using their experiences to push reform.
“It’s quite a dynamic area, and it’s very rewarding to be involved in.”
Mr Bradley detailed some important considerations for lawyers when working with survivors.
“Our job is to make them aware of their rights, options and the various pathways available to them — whether that’s making a police report and going a criminal path, bringing a civil claim, or telling their story publicly,” he said.
Each of those has risks and consequences, such as defamation risk; he said, “for survivors, it can be terrifying and daunting — so giving them information and advice about what all that looks like enables them to make informed choices”.
“It’s a critical first step in retaking control of their own story and their own agenda,” he stated.
“Our goal, our role, is to support — give independent support completely on their side and help them navigate what is an incredibly difficult fraught legal system that in no part was designed with survivor’s interest in mind.
“It’s not fun for them, but we can make that journey less retraumatising.”
Sometimes it takes a combination of legal and media strategy to help a survivor achieve what they want to achieve, explained Mr Bradley.
“It takes enormous courage and is high-risk territory — you need to know what you’re doing,” he said.
“There are good journalists who are trauma-informed, who are good at working with survivors, and there are very bad ones who have no idea what they’re doing.”
On stage at the conference, Ms Tame detailed a harmful experience she had with the media, on an ABC Four Corners episode.
The ABC briefed her before the show, she submitted, assuring her they would not discuss or ask about her trauma, but when it came to the live screening, the public broadcaster shocked her by asking her about it for the sake of creating a more sensational piece, she alleged.
“Most of the time, it’s ignorance, not malice,” explained Mr Bradley, “but the harm’s the same”.
Mr Bradley confronts this challenge by working closely with journalists who he knows are safe.
