“This man is not going to fuck with me” – A Review of Witness by Louise Milligan

By Amy Walters

Journalist Louise Milligan shot to national prominence following her reporting on sexual abuse allegations against both Cardinal George Pell and the clergy more broadly. Her book on the subject, Cardinal, was famously withheld from sale in Victoria while Pell faced trial. Milligan was also called as a witness in that trial as she was the first person to whom one of the complainants divulged an allegation of abuse (the ‘witness of first complaint’). By the time her day in court had arrived, Milligan had received a law degree from the University of Melbourne, had worked as a court reporter for a number of years, and was represented by a Queen’s Counsel with the backing of the ABC’s own legal team. Yet she found the experience devastatingly brutal. How, she wondered in the aftermath, can traumatised victims of sexual assault survive cross-examination?

This question motivated her to write her second book Witness. Released in 2020 and shortlisted for the 2021 Stella Prize, Witness reveals how ill-equipped the criminal justice system is to serve the interests of victims of sexual assault. The book is deeply researched, with Milligan drawing on her history of reporting on clerical abuse in addition to interviewing barristers, academics, judges, and of course, witnesses.

In the wake of the #metoo movement, there has been a flurry of memoirs and commentary both in Australia and internationally in which authors foreground their own experiences of sexual assault and the barriers to obtaining justice. Notable Australian works include Bri Lee’s superb Eggshell Skull, which took a look at the broader Queensland criminal justice system in light of her own pursuit of a conviction for childhood sexual assault, and former federal politician Kate Ellis’s recent Sex, Lies and Question Time, which reveals the deeply chauvinistic culture of Australian politics. Witness is a valuable addition to this canon. The coupling of strident personal testimony with a wide range of case studies underpins her contention that addressing sexual abuse requires a structural shift, and positions the law as a cultural artefact that can be reformed in line with society’s changing expectations. Furthermore, rather than shifting the blame on to individual defence barristers (although she certainly takes particular members of the older generation to task), Milligan examines the culture of the legal profession, particularly in an illuminating chapter entitled ‘Hornswoggle,’ which solely focuses on how notions of prestige are perpetuated.

The adversarial legal system we have inherited is based on the idea that justice is best served by two parties promulgating rival versions of events. As one barrister tells Milligan, “I am paid, fundamentally, to create reasonable doubt.” How the truth is supposed to emerge under these conditions is anyone’s guess, but a further structural problem compounds this iniquity for sexual assault victims. Legally speaking, a criminal case is between the crown and the defence. As a result, victims are technically not a party to the proceedings. Rather, they are relegated to the role of a witness, without any entitlement to independent legal representation.

The continued treatment of the courtroom as a theatre tips the scales further against victims. In the well-publicised trial of Luke Lazarus, who was accused of raping eighteen-year-old Saxon Mullins in a Sydney alley, the defence lawyer insisted on calling the then-nineteen-year-old Mullins ‘madam,’ because by his own admission, calling her by her name would ‘humanise’ her. It seems that any latitude for the victim to be portrayed as who they really are is taken by the defence as a disadvantage to their client. As Milligan uncovers later in the book, although in ACT child victims of sex crimes are permitted to appear in court by video to avoid being in the presence of their alleged perpetrators, they are not allowed to hold a teddy bear while giving testimony, because it is considered ‘prejudicial’ to the jury. 

In another blow to victims, rape myths persist in the legal arena, perpetuated by both barristers in their questioning and judges in their reasoning. Barristers continue to question sexual assault victims about personal details, such as the underwear they were wearing at the time they were assaulted, even though this is not allowed under NSW and Victorian Law. Furthermore, judges misunderstand the ways in which victims indicate they are not consenting to sexual behaviour, and about how trauma manifests in victims. After years of legal wrangling, Lazarus had his conviction overturned, and the judge Judge Robyn Tupman relied on troubling notions about consent. Whilst some commentators, legal experts and even a former police officer Milligan interviewed understood that trauma can cause issues in recall, Judge Tupman disregarded Mullins’ claim that she had told Lazarus to stop because she had initially told the police, “I think I told him to stop” (and later firmly stated that she had said this). Judge Tupman’s view that Mullins had consented was reinforced because Mullins “did not take any physical action to move away,” which disregards the fact that traumatic situations can make victims freeze rather than fight or flee. Thankfully, the law has been adapted to account for this kind of ignorance.

The legal fraternity’s misunderstanding of the nature of grooming and abuse also continues to be amply demonstrated. When Paris Street, a fourteen-year-old student at prestigious Melbourne private school St Kevin’s, made a police report about the grooming behaviour of his athletics coach, Peter Kehoe, the case went to trial and the coach was convicted. Like Saxon Mullins, Street “did not have any legal agency” in the trial. Instead he had “a run-through of the proceedings, a diorama and a five-dollar not to get him to court. He had, in the witness assistance program, someone to hand him tissues when he got upset.” During proceedings, Paris was ferociously questioned by Robert Richter QC, Pell’s lawyer, who became notorious for dismissing the assault of a thirteen-year-old choirboy as a “plain, vanilla sexual penetration case.” Furthermore, in a bizarre exchange with Richter towards the end of the hearing, Magistrate Michelle Ehrlich had even characterised Kehoe’s deeply inappropriate behaviour towards Street as “love”.

On top of this, Street was horrified to find out that the principal of his school gave a character reference for the coach. It is depressingly common for professionals and members of the community to give evidence of an offender’s “otherwise blameless life.” In Street’s case and others examined by the Sentencing Advisory Council of Victoria, these references are mitigating factors when determining a sentence, and can at times be considered to outweigh the harm that the offending caused to the victim

Both the sentencing judges and those who give references fail to recognise that appearing ‘selfless’ and embedding themselves in their community are the modus operandi of the child sex abuser; it is how they gain the trust of and access to victims. While the Royal Commission into Institutional Responses to Child Sexual Abuse recommended legislative reform to ensure the nature of grooming is acknowledged at the judicial level, in another section of the book, Milligan notes that most of the barristers she interviewed have not read the final report handed down by the Royal Commission, which, she suggests, “says something.”

A number of barristers Milligan interviewed express the view that the chauvinist culture stereotypically associated with the legal profession is dying out with the older generation. However, the recent findings against the former High Court justice Dyson Heydon and other legal figures demonstrate that misogyny remains a live issue. This is reflected in the gender imbalance at the Bar. In New South Wales, 23 per cent of barristers are women, while 48 per cent are men aged fifty or over; this means there are “more than twice as many barristers who are aged fifty-plus than women of any age.” Furthermore,fewer than a quarter of the barristers who take on sex crime briefs are women, and only one per cent of those women are senior counsel (known as ‘silks’, or formerly, as Queen’s Counsel). Men make up 88 per cent of all senior counsel in New South Wales. In Victoria, the situation is slightly better but there is still not gender parity. 30 per cent of Victorian barristers are women, and of those who work on sex crimes, 39 per cent are female. 10 per cent of male criminal barristers are senior counsel, compared to only 1.3 per cent of women. Milligan asserts:

The number of women who are appointed as silks, still quite scandalously low, has profound implications for who makes decisions about law in Australia [as many senior counsels then go on to become judges], and by extension, for the experience of everyone in courts – especially, it could be argued, the women and children who come before them as victims.

Perhaps this is why the authority figures who set the profession’s tone and values continue to have a blind spot when it comes to ingrained misogyny. Milligan, along with some of the more progressive representatives of the legal profession, are shocked that a new gallery at the prestigious Owen Dixon Chambers in Melbourne was named after Peter O’Callaghan QC, who for twenty years was on a retainer for the Catholic Church as the Independent Commissioner of the Melbourne Response, which was severely criticised by the Royal Commission. He publicly attacked the credibility of people who questioned the Response, including victims of sexual abuse. At the same time, he did not advise claimants that the Church could cover their legal fees, and he told claimants that if they made police reports, their compensation claims would be terminated. Despite such dubious behaviour, he is remembered fondly by the legal fraternity, and was celebrated by his old friend, former High Court Justice Susan Crennan, who noted with amusement at the gallery opening that he retained the use of archaic words such as ‘hornswoggle,’ meaning “[t]o swindle, cheat, hoodwink or hoax.” It is abundantly clear from this anecdote what values the profession celebrates.

All of this begs the question: what motivates a person to become a lawyer? More specifically, why be a defence barrister who spends their career trying to discredit devastated sexual assault victims, some of whom are children? Many of the lawyers Milligan interviewed fell back to the presumption of innocence as a justification for forceful questioning of sexual assault victims. William Blackstone’s eighteenth-century formulation of this principle is still invoked by lawyers today: “It is better that ten guilty persons escape than one innocent suffers.” But Milligan writes, “[i]n their genuinely noble commitment to the presumption of innocence, there is often a sense that protection of the rights of the accused is a higher pursuit.” Certainly, the lives of people who are wrongfully convicted can be devastated beyond repair, and in countries like the US where the death penalty remains in force, the consequences of such convictions are even more grave. However, a number of the lawyers Milligan had interviewed also acknowledge that false allegations are not a systemic issue when it comes to sexual assault allegations.

Milligan also observes that barristers are cagey when it comes to victims. “Victims seem to be a problem for barristers,” she writes. “They don’t quite know where to put them. They know their system doesn’t treat them well and they don’t quite know what to do with that.” More often, it seems, barristers see victims as people “whose unwieldy expectations have to be managed.” Perhaps they know, on some level, that what they are doing is morally indefensible, despite their insistence in cloaking their courtroom barbs in the veil of protecting the innocent

Milligan’s self-talk in the lead-up to the Pell trial is apt. “This man is not going to fuck with me,” she tells herself as she makes her way to the Melbourne Magistrate’s Court. But if you’re a female witness in a sexual assault trial, this is exactly what happens: you are fucked by the patriarchy. It is somewhat contradictory that barristers are willing to use their imaginations to create reasonable doubt, but can’t envisage a system that is not premised on the re-traumatisation of victims. Perhaps, as is the case with patriarchal power structures across our society, the system just suits those comfortably ensconced at its apex. Milligan’s wide-ranging discussion demonstrates not only that cultural change needs to happen across many of our institutions, but that the law itself is a cultural institution, and can be reformed to better reflect the improvements in our understanding of trauma and its effects. In writing this book, Milligan achieves what the legal system fails to do: genuinely bear witness to the suffering of victims.