by Bri Lee
Jessica was so difficult to get information out of that her evidence-in-chief carried over until the late afternoon. Eric had to loop back over things twice, three times. She said that after she woke and pushed Phillips off her, yelling out, she ran to the bathroom and locked herself in there. That was when she remembered that she had her period, and needed to get her tampon out from where it had been shoved right up inside her.
‘And you flushed the tampon down the toilet?’ Eric asked her.
‘Well yeah, I mean, I wasn’t really thinking straight,’ she said defensively. I winced at the wasted opportunity for DNA testing before remembering that even if a tampon full of semen could have helped her prove intercourse, it wouldn’t have helped her prove a lack of consent. Nothing could help her ‘prove’ that, not really.
Jessica refused to answer questions about her alcohol intake that evening, and this became an issue. She was unable to be clear about the different statements she’d made at different points in the investigation: sometimes she’d said ‘I never drink’ and sometimes she’d said ‘I didn’t drink on that night’ and sometimes she’d said that she had ‘one or two UDLs’ but that she ‘didn’t normally drink’. It interfered with her medication.
‘What difference does it make!?’ she would say back to Eric when he asked her to clarify her answer, again. ‘I could have had ten drinks and still never said “yes” to that creep.’ Unfortunately Jessica seemed only able to string entire sentences together when she was angry.
Sensing that tensions were high, or maybe just exhausted himself, Judge adjourned for the day once Eric announced that evidence-in-chief was finished. ‘We’ll begin cross-examination tomorrow morning, thank you.’
The cross-examination started in the morning and went for hours, all the way through to the afternoon. Jessica’s evidence-in-chief with the prosecutor had been difficult, and she arrived in the morning already anxious and aggressive, as though she’d been on the stand in her nightmares throughout the previous evening. She was like a cat stuck in a storm drain: panicked, lashing out, too terrified to differentiate between those trying to help or harm.
Defence started at the top of the night and combed through every inconsistency from across her previous statements. There were many, and the alcohol intake was a pain point. The defence barrister asked her many times how many drinks she’d had, and she refused to give a straight answer, until they got angry at each other. She insisted it wasn’t relevant information, and that regardless of how many drinks she’d had, it hadn’t been enough to impair her judgement. Defence replied, correctly, that she was in the stand and needed to answer the question.
They got so heated that Judge interrupted them. ‘I don’t think that line of questioning is getting us anywhere,’ he said.
‘Yes, your Honour,’ the defence barrister replied.
As though testing Jessica’s memory of the evening, he asked her what she had been wearing, saying he wanted to check it against the police records of that night.
‘But the skirt you were wearing was a short skirt, correct?’ he said.
‘Why are you asking me about my skirt?’
‘Answer the question.’
‘Whatever! Fine!’
‘So you admit you were wearing a short skirt? A miniskirt?’
‘Fine.’
When the barrister got toward the climax of his interrogation, he suggested that she’d simply regretted her choice in sexual partner then changed her mind the next morning. The story seemed to be that Phillips wasn’t even that ‘into’ her.
In response, Jessica called the defendant ‘ugly’ and said that tradies weren’t ‘her type’. I flinched and looked through the juror cards: four of the men had a trade listed as their form of employment.
‘I put it to you that you initiated sexual intercourse with Mr Phillips, and—’
‘No.’
‘I put it to you that—’
‘No.’
‘Please let me finish.’
‘Finish what!? Stop making these statements at me! Are they questions? Why are you just telling me what you think happened!?’
Judge adjourned for us all to have a lunchbreak, but within ten minutes of resuming the tensions were even higher and Jessica seemed worn right through. One of the final questions asked her to name all the medications she was taking.
There was something about the process of cross-examining a rape complainant that made me want to slap even the gentlest defence counsel. The logical part of me knew that defence was all a part of the legal process and that if someone made an allegation, of course the onus of proof lay with them, and their version of events could be challenged. But when women and girls were crying and saying they’d been raped, surely it was unnecessary to badger them about why they flattered themselves to have caught the defendant’s eye in the first place. Suggesting a woman was presumptuous to say the defendant would even want to have sex with her was just cruel.
How do we reconcile these competing interests? These horrors? It’s impossible to have every inch of public space covered by CCTV, and even if we did, sex offences mostly happen in private. The acts are committed against vulnerable people by the ones they trust. There is no physical evidence. Even where semen is recovered, it can only be proof of intercourse, not consent. The women who have both levels to prove are fighting to convince jurors that they are both desirable and unwilling.
Studies show that we actively dehumanise overweight people and people who we believe look different to us—how is an overweight woman of colour, for example, supposed to convince an all-white jury that she was raped, if a fit, white defendant says he wouldn’t want to have sex with her? Jessica had a nervous disposition, struggled to enunciate her words, had a temper and was medicated for anxiety and depression. She was at such a monumental disadvantage for not appearing as what average jurors might consider irresistible. It’s the ultimate terror—perhaps the worst form of gaslighting—for a woman who complains of being raped to be told she isn’t desirable enough for that to be true.
The next witness was the counsellor who’d heard Phillips’s confession. Her testimony started simply. Phillips was at a clinic in New South Wales a few weeks after the incident, and he thought the counsellor was prevented by doctor–patient privilege from sharing what he said to her; in fact, she was obliged by her professional code and workplace to report threats or admissions of criminal conduct. Defence spent a while trying to tell the doctor that she was mistaken, that Phillips had told her that he had been accused of raping a woman, or that he may have raped a woman because that woman had said so.
‘No, that’s not what he said,’ the counsellor responded. ‘I made notes at the time. He said he did it.’ She was clear and succinct. This felt good to me, as if things were back on track in time to wrap up, so I started doing some paperwork. But then defence asked the doctor about her sister having been attacked. I swivelled my chair around, my eyes wide.
‘What does that have to do with this?’ she asked the barrister.
‘Just answer the question.’
‘What was the question?’
‘Are you sure your judgement in this matter isn’t impaired because your sister was sexually assaulted by a man relatively recently?’
‘No, it is not.’
Defence badgered her until she admitted that, on some level, these ‘themes’ might make her ‘upset’. Strange, though, that someone being emotional about a horrific crime makes them less believable.
I didn’t have time to wonder how he knew about the woman’s sister before I was doing the paperwork for the next witness—the doctor who’d inspected Jessica in the wee hours of the morning after she called the police. Unfortunately for Jessica there was no physical harm. No real bruising, no wounds—not even small ones—and her vagina hadn’t shown signs of trauma. The doctor explained that this lack of injury did not necessarily mean Jessica wasn’t raped. I thought back to her evidence of how careful Phillips was as he tried not to
wake her. Of course there wouldn’t be grazes and bruises. He fled as soon as she called out; struggle and violence wasn’t a part of this narrative.
As though I needed a final reason to loathe the defence barrister, he asked Jessica’s doctor about the medications she was on, and the doctor answered with a variety of specific prescriptions.
‘What about anything else? Any contraceptives?’ the barrister inquired, pretending to be casual about it. He had put on a now-the-grown-ups-are-talking attitude with this doctor, the first man in the witness box.
‘Yes, the contraceptive pill,’ the doctor replied.
It was lucky we took a break after the doctor’s evidence. I was fuming. I’d had Implanon—a semipermanent contraceptive implant—injected into my arm just weeks before. If I were raped on the way home from work that night, a barrister like this one might use my Implanon as a sly suggestion of promiscuity. What else could it be? There was no other reason for defence to inform the jury of Jessica’s being on a contraceptive but to suggest she was the kind of woman inclined to engage in casual sex. It was slut-shaming at its finest, proudest pinnacle. The jury had been listening, some taking notes, some sipping water. Did they buy it? Were this barrister’s bullshit antics only apparent to me?
We heard from the ex-boyfriend that afternoon too. I was optimistic before his testimony because it’s rare to have someone be so near to an assault of this nature. It could be incredibly valuable to have someone—especially a man—describe the complainant’s and the defendant’s actions immediately after the event.
His evidence was that he woke up in his bedroom to hear Jessica screaming that she’d been raped, and he heard Phillips leave, then he went back to sleep. When the prosecutor questioned his behaviour, he explained that he was just tired of Jessica bringing so much drama into his life.
‘Maybe he should be on trial for being a top-notch loser,’ I said to Megan at lunch.
The verdict wasn’t up to us: it was up to twelve random people. Supposedly a cross-section of society, but really they were mostly men—because defence had vetoed eight women and one had withdrawn—four of them tradesmen, and nobody under or even close to thirty. When they entered the courtroom I tried to image how old they were when the pill went mainstream, and what they all thought about the ‘kind of women’ who took the pill.
I kept my sunglasses on for the walk home that afternoon, considering the chasm between morality and the law. Everyone in the room looked at Jessica as if their shoulders were shrugged and their hands in the air, palms up. Nothing we can do about it, sorry love! And I imagined myself in the courtroom, in the witness box, telling my story to a room of men with their shoulders shrugged and their hands in the air and the corners of their mouths turned upward in pity.
Later that night I drove to the shops to get something for dinner, but one block away from home I came across a possum that had been hit by a car. It was dragging one paw along the ground but there was blood coming from its mouth and anus, and I knew—from a childhood in a possum-filled area—that the RSPCA would say what they always did: if possible, and if the poor bugger is this far gone, put it out of its misery. I checked that the street in front and behind was empty, shifted gears and hit the accelerator, thump, then stopped the car again. The noise made my arm hair stand up and I stretched my neck around, the natural human response for disgust or shame. I checked the back mirror to make sure no cars were around, then I saw the possum was still twitching. No! It couldn’t!? How cruel could I be? Had I only hit a leg? Had I made it worse? I couldn’t leave it there now. I reversed over it and the thump wasn’t as loud—I couldn’t go as fast in reverse. The car rolled back far enough to reveal the animal from under the bonnet.
‘No!’ I screamed out, part in horror, part in anger. Its entire lower half was a squashed and wretched mess, but it was still twitching. I cried as I shifted gears into drive once more, checking again that nobody was around, and changed the angle of the tyres so I would run over the head. This time, after a fast, third thump, I didn’t look back.
‘Oh, the nerves still twitch sometimes after they’re long dead,’ my dad said, giving me a rough hug when I turned up to the front door crying. ‘They look like they’re alive but they’re not.’
‘You did the right thing,’ Mum added.
When I was falling asleep I wondered why we draw so many distinctions between animals and humans. We will put a possum or dog ‘out of its misery’ but euthanasia is mostly still illegal for humans. And why do we think there’s so much difference between physical and emotional pain—chronic, debilitating emotional pain? It’s a sliding scale. A possum run over is okay. A person choosing to end their physical pain is almost, kind of, sometimes okay. A person like me choosing to end an internal type of suffering is definitely not okay. I fell asleep with a box cutter in my hand. Definitely not okay.
In his closing address the next day, the prosecutor showed the jury a photo of the mattress on the floor where the rape allegedly occurred. It had a sheet quite neatly placed over it, with an assortment of personal belongings and household items sitting on top. It looked awkward.
‘Does this image seem like it fits the rest of the apartment?’ the prosecutor asked the jury quite casually. ‘The apartment is very messy, and Jessica remembers that when she woke up with the defendant on top of her, with his penis inside her, they were lying on the bare, dirty mattress.’
I shuddered.
‘And this mattress has a sheet placed on top, and lots of little things placed on top of it…’ He trailed off, allowing the jurors to consider the image, also allowing it to seep into their minds to make the picture they were all painting more real. ‘The prosecution submits that the sheet and the belongings on this mattress were placed there by the defendant before he fled the scene, in an effort to make the bed look like it hadn’t been used at all, while Jessica was in her room across the hall, calling the police.’
The Phillips case was the first time I saw a highly paid defence barrister explain the differences between consent and mistake of fact. In Queensland it’s not enough to prove that there was no consent: the defendant is allowed to argue that they had an ‘honest and reasonable belief’ that the complainant consented. Everyone may know and agree that she did not want to have sex, but if defence can prove ‘mistake of fact’ the defendant will not be convicted. That’s what Phillips’s defence was contending, that Jessica was extremely drunk and not only consented but also initiated the sex, and that either (a) she was awake the whole time then changed her mind and ‘went nuts’, or (b) she passed out and he kept going, mistakenly believing she was still conscious.
‘He can’t know that she was thinking it was her boyfriend,’ the defence barrister said in his closing address.
But that didn’t seem to me to be the point. Jessica had taken about a minute to fully come around to consciousness and realise she didn’t recognise the shape above her. It was disturbing to me that a sleeping woman could wake to a man inside her and think: Oh, it’s okay, I know him. Did this woman not know what consent meant, or did she not care? Had their relationship been respectful? The mistake of fact defence wouldn’t be so openly available nor so flexible in fitting so many defendants’ situations if there were more women making laws, more women enforcing laws, and more women on first-response teams. I don’t like mistake of fact because it gives juries an easy reason to acquit. They can say, ‘Sorry love, you didn’t ask for this’, but simultaneously, ‘He’s not responsible for his actions.’ Without mistake of fact, at least jurors would have to admit they were calling women liars. I like to think that might make a difference.
‘She wouldn’t be the first or last man or woman to regret what was done under the grip of intoxication,’ the defence barrister said. But Jessica didn’t just wake up the next day with a hangover and a bad feeling. She woke up with a stranger inside her and yelled out and screamed as soon as she had the physical consciousness and capability to do so. Would it be enough?
/> Later in chambers, while we waited for a verdict, Judge and I talked about juries and what they wanted. Judge told me that women jurors were often tougher than male jurors on women complainants. I thought that must be a generational thing too. I wore miniskirts and had a contraceptive implant; so did many—if not most—women my age. Judge said that statistically and anecdotally, juries prefer big-eyed child victims, along with defendants who are scary and jump out of bushes.
Hours went by and no note came. After six hours, Judge recalled everyone and asked how they were doing, and they didn’t have an answer, so he sent them out to try again, and we waited. I always had a panicked feeling while I waited for a verdict. A claustrophobic feeling, that I was strapped for time, that a monumentally crappy thing would happen at any moment. That the worst day of either the complainant’s or the defendant’s life was about to happen. Each verdict I waited for reminded me that one day it could be my verdict. The old dizzy feeling would return. The blurry vision at the edges. The pressure building behind my eyes and the tightness of my chest. My ears would fill with a static fuzz. White noise.
When I finally stood to take the verdict, it occurred to me that I was the only woman to speak for the court. Judge, the prosecutor, and the defence barrister were all men. One witness had been a woman—the counsellor who’d heard Phillips’s confession—and the defence barrister had implicitly accused her of being motivated to somehow avenge her sister, who had been attacked by a man.