Fight Back #70
Feature
Without Proper Protection for Victims, How Can There Be Judicial Justice?
"X, how did he assault you?"
Without a screen, I could feel everyone’s eyes focused on me.
I took a deep breath and began to testify, recounting in detail the event of that day, trying hard not to notice any movements in the direction of the defendant's dock. But whenever I looked up, I could see that person.
"X, was it this position?"
"Did he grab you with their left hand or right hand?"
"How many times did he penetrate?"
The lawyer began cross-examination, repeatedly asking me to confirm the events. I carefully tried to recall and accurately answer these questions about details that happened over six months ago. Suddenly, I caught sight of the defendant, their eyes fixed on my body. My fingertips started to go numb.
"You're lying!"
"You deliberately seduced the defendant!"
"Do you sleep around often?"
"Were you cheating, and then you got scared your boyfriend would find out, so you falsely accused the defendant?"
The lawyer bombarded me with questions. I could hear my own voice trembling and echoing in the courtroom, feeling my face grow increasingly hot. I stared directly at the lawyer questioning me, wanting desperately to scream at him for twisting the truth, that he had no right to publicly humiliate me. Then I saw the defendant smirking. With each answer I gave, I saw the defendant whispering with the defence lawyer, crafting even more outrageous questions. The defendant’s family in the public gallery frequently exchanged gestures of support with him.
I looked around at those who seemed to be judging me. My mind was spinning out of control. Was that person who just jotted something down a court reporter? Would my family and friends recognise me from the news reports? What did the expressions on the defendant and the defence lawyer’s faces mean? Was I doing badly in court?
The underwear I was wearing at the assault was being passed around among the jury. The judge, the prosecutor, the defence lawyer, the audience, the journalists, the security guards, the clerks... all of them were examining my underwear and me. I felt my soul being drained away, as if I were just an object, laid bare in the courtroom, for people to stare at, to question, to ridicule.
Suddenly, it all seemed pointless. My pain was invisible.
My once-clear thoughts started to tangle. I felt like I couldn’t go on, that I couldn’t endure this anymore. I thought that dying would be better than what I was going through. An irrational thought surfaced—I wanted to retract everything I had said, let the defence lawyer say whatever he wanted. I just wanted it to end quickly, to go home, to never see that person again. I didn’t care about the result.
Finally, when the court adjourned, I ran into the defendant at the lift.
This was a rape trial without any court protection measures.
Fear in the Absence of Court Protections: Preventing Others from Enduring the Same Pain
The story above is based on the real experience of a victim-survivor accompanied by RainLily counsellor. Many years ago, victims had to go through the trial process without any protective measures, including Miu, who testified in court fifteen years ago. Miu had to give her evidence without the arrangement of a screen or special passage, making the trial process incredibly torturous. After enduring three difficult days of trial, no one informed Miu of the trial's outcome until she read in the newspaper that the perpetrator had been convicted of rape. Two years later, the conviction was overturned in the appeal. The case was sent back for retrial. Once again, Miu was not granted any court protection measures. After much internal struggle, she ultimately decided not to testify. "If I had to rate my decision, I would say eight out of ten points were due to the lack of a screen," Miu explained. She did not want to regress to the state she was in two years ago. "Going through it again, recounting every detail from scratch—the shame and fear were emerging. I couldn’t sleep." The defendant was eventually re-convicted with the alternative charge of indecent assault, and was released immediately due to time served.
Later, Miu and other RainLily service users formed the "Survivors' Rights Advocacy Group". They worked with the organisation to advocate court protection measures for victim-survivors of sexual offences in the trial process. Miu shared her experiences with prosecutors, judicial personnel, and legislators, detailing how she was denied court protection measures and the pressure faced by victim-survivors when testifying. After five years of advocacy, revisions to the Judiciary's "Practice Directions" came into effect in 2016, stipulating that the Department of Justice must submit any requests for the use of screens, special passageways, and/or support persons to the presiding judge. The type of screen requested must be specified, such as whether it is to prevent the witness from seeing the defendant, the public, or both. In 2018, it was further stipulated that sexual offence victims could apply to testify via live television link.
Measures in Place for Years, Pressure in Court Remains
At the end of 2023, Miu gave an interview focusing on a recent case where a magistrate ruled to remove the screen in a sexual assualt trial, allowing the defendant to have "eyeball to eyeball" court confrontation with the victim. In the interview, Miu candidly shared that “Sometimes I cried at home, but still I strive to fight for justice.” Her vulnerability showed a strength of perseverance, reminding us of another survivor who expressed a similar feeling - “It feels like a bitterness that is both bearable and unbearable... but I have never considered backing down.” These unembellished words convey genuine strength and courage.
Sexual violence incidents often leave victims feeling an indescribable pain and shame. Survivors must endure unimaginable psychological pressure regardless of how they choose to speak out. This is why Miu decided to retell her story again - Not only to expose the shortcomings of the system, but also gave a voice to other survivors, in their hope that they will receive the fair treatment they deserve in the pursuit of justice. The courageous sharing of Miu prompts us to rethink: Do victim-survivors truly be able to obtain trauma-informed court protection 15 years later? Can the implementation of related court protection measures provide a safe environment for victim-witness to testify calmly and clearly without any unnecessary pressure?
In 2016, the Judiciary revised Practice Direction. However, by 2023, there were still instances where sexual violence victims were denied the use of court protection measure. In a recent interview, Miu responded to an indecent assault case, where the victim was initially granted permission during a pre-trial review to testify behind a screen, ensuring she would not see the defendant, though the defendant would still see her. However, when the trial commenced, the magistrate ruled that the "original arrangement had no legal basis" and granted the defence's request to remove the screen between the victim and the defendant, as this would infringe on the defendant's right to have "eyeball to eyeball" court confrontation with the victim. Some victims of sexual violence, who were already hesitant to report the crime, expressed that this case severely impacted their confidence in reporting the crime and testifying in court. This posed a common challenge for all individuals who consider pursuing justice through the criminal justice system.
Furthermore, based on frontline counsellors who supported survivors during the trial, we found that the needs of “adult sexual violence victims” are constantly overlooked. It is not uncommon for law enforcement and court personnel to believe that protective measures are only applicable to witnesses that match with the stereotype of “perfect victims”, which reflected internalized myth of sexual violence. This leads to harmful remarks such as "They knew each other already," or "Adults still need accompaniment?". Such attitudes undermine the needs of victim-survivors, neglecting the importance of courtroom measures like pre-trial visits, and obstruct the application for support persons to accompany witnesses, stripping them of their rights. Some witnesses were not notified about their protection measure application before the trial. All these factors contribute to heightened distress and insomnia in victim-witnesses who were about to testify.
Though from the perspective of the general public, victim-survivors are often seen as the protagonists of sexual offence trials, in reality their rights and dignity were often overlooked by both the prosecution and defence counsel. They are often treated as passive “evidence”, instead of “human” who possess feelings and vulnerabilities. The case of sexual offences is inherently difficult to have third-party witnesses or other direct evidence; at times, it becomes a 'words against words' case. Court protection measures like screens serve the important function of allowing victim-witness to testify calmly without unnecessary pressure, ensuring the quality of their evidence and upholding the fairness of the trial. If the implementation of such measures fail to acknowledge the vulnerabilities of witnesses, especially the fear they face when confronting the defendant, it would undoubtedly impact the quality and reliability of their testimony. By fully disclosing their traumatic experiences, witnesses help the criminal justice system to achieve its goal of upholding justice. The judicial system must recognize the challenges faced by witnesses, affirm their dignity and rights, and proactively address the needs of crime victims, thereby reducing the institutional harm that arises during the process.
Feature
The Ideal of "Protective Measures" vs. Reality that Left Victims at a Loss
When giving their evidence in court, victims are required to recall and recount the details of their traumatic experiences, which undoubtedly burden them with immense pressure. Hence, beyond “protecting” the physical safety of victim-survivors, more importantly is to “protect” them from secondary trauma. "Court protection measures" aim to reduce unnecessary distress and embarrassment for witnesses to testify in court, ensure the court can achieve best evidence from the witness smoothly, which is essential for reasonable and fair judgments. The Practice Directions and the Criminal Procedure Ordinance state that sexual crime victims have the right to use screens, testify via live television, and have support persons accompany them during the trial. However, the examples mentioned earlier illustrate the actual implementation was often far from ideal. Considerable challenges were encountered when applying for the protection measures, revealing a gap between expectation and reality. We hope to examine whether the current arrangements for implementing court protection measures genuinely safeguard the rights of sexual crime witnesses.
Challenges in Applying for Live Television Testimony and Support Person
Based on our experience, aside from the use of screen, other court protection measures are often difficult to apply. According to Section 79B Criminal Procedure Ordinance (Cap. 221), the court can permit vulnerable witnesses, including sexual crime witnesses, to testify via live television. This requires the police to submit the application on behalf of the victims. From our experience accompanying victims reporting incidents, we have found that different police forces have inconsistent practices. Victims are not informed about their rights as witnesses. Some frontline police officers also did not recognize sexual crime victims as vulnerable witnesses, and mistakenly believe that only children and individuals with mental incapacity are eligible to use live television for testimony and have support persons accompany them in court. As a result, police officers may fail to provide accurate information on court protection, or may discourage victims from applying the protections they rightfully deserve.
In the past, we had service users applied for live television testimony and support person accompaniment, only to be denied. Typically complainants have no way of knowing the reasons for rejection or the criteria for successful applications. The entire application process lacks transparency, leaving witnesses to passively accept the outcome or rely on social workers to follow up for clarification.
Inconsistent Application Process and Execution Standard
The Practice Directions do not specify a concrete process for each stage of court protection measures application, we found inconsistency in the application timeframe based on different victim-survivors reporting experience. Occasionally the application was made as early as the first statement-taking, while some were shown the application form right before the trial hearing. Additionally, the timing for victims to be notified about the application results also varies. There have been instance where victims were informed only a few days before the trial date that their application of “support person” was denied. The social worker was informed to submit a letter to the Judge on the day of trial hearing to make the application, which is highly undesirable as such last-minute requests may not be accommodated by the court, and would greatly increase victim’s distress due to the uncertainty. There have also been cases where victims were notified on the day of the hearing whether the screen would effectively block the line of sight between the witness and the defendant or only shield them from the public.
Screens, special passageways, and vulnerable witness waiting rooms are vital measures that help witnesses feel secure while testifying. However, as highlighted by the experiences of victims, the actual implementation of these protective measures lacks uniformity. There is a pressing need to establish more standardised and humane measures to reduce anxiety and sense of insecurity of witnesses, ensuring that the judicial process can proceed fairly and smoothly.
Lack of Clear Guidance for Support Person Arrangements
The purpose of arranging a support person is to provide emotional support to witnesses in the trial process, so as to alleviate their distress as they recount their traumatic experiences. This is especially important during testimony, which often was very overwhelming for most victim-survivors. They may even need to take breaks. According to the Practice Directions, support persons can accompany witnesses to visit the court before the trial and can be present when witnesses testify via live television. However, there are currently no clear guidelines regarding the arrangements for support persons accompanying witnesses through special passages into the courtroom or during testimony.
In most of the cases, courts generally allow our counsellors to accompany witnesses through special entrances. However, there are instances where support persons are not permitted to accompany witnesses through these passages or to the witness waiting room. When witnesses are testifying, we hope to provide emotional support by being by their side, but the positioning of support persons lacks uniform standards. Sometimes counsellors are allowed to sit behind the screen next to the witness, while other times they may be placed in the public gallery or counsels’ rows within the witness's line of sight. The related instructions remain vague.
Envisioning Courts That No Longer Inflict Harm
Other than the use of a screen, live television link, and pre-recorded evidence, countries like the UK also established “Independent Sexual Violence Advisors”, who represent victims in communication with the police and prosecution, guiding them through court visits and explaining judicial procedures and questioning processes[1]. Since 2016, New Zealand has implemented special courts for sexual offenses in Auckland and Whangarei (Sexual Violence Pilot Court), where designated judges specifically handle cases related to sexual violence. These judges are required to undergo trauma-informed training to understand the secondary trauma that sexual violence victims may experience within the criminal justice system. Prior to the trial, victims meet with prosecution lawyers to discuss court procedures and testimony arrangements. Victims can also choose to have family members accompany them during their testimony. If the judge deems any questioning inappropriate, unfair, or misleading during cross-examination, they have a duty to intervene[2]. The Scottish government has also proposed legislation (Victims, Witnesses, and Justice Reform (Scotland) Bill) to formally establish special courts for sexual offences and ensure a trauma-informed approach throughout the juridical proceeding.
We hope the government will review the practical operations and arrangements of current court protection measures, making relevant standards more transparent. This would reduce the discrepancy between Practice Directions and their actual implementation, allowing sexual violence victims to truly have the freedom to choose and effectively utilize court protection measures, thereby gaining greater autonomy and a sense of safety within the justice system. In this issue of "Fight Back," we also wish to extend the discussion on how the justice system can ensure fairness in procedures while exploring more possibilities. Perhaps one day, the justice system will become so friendly that there will be no need for "protective" measures, yet still provide better support for victims seeking justice without causing them further harm.
感言 ∙ 敢言
從受害者的角度重新思考法庭設計
To provide a space for survivors to share their ideal vision of pursuing justice through the legal process, we interviewed several RainLily service users on their thoughts on court protection measures:
If you could use any imagination and creativity, what would be the ideal way and environment to give evidence?
Through these valuable responses, we hope to better understand their genuine needs, as well as to rethink court design and explore ways to enhance the friendliness of the judicial system from the victims' perspective.
I hope……
“...to be able to testify via video from home, in an environment I am most familiar with, where I would feel safer and more confident to stay calm. When things get tough, I could cover myself with my own blanket or have a sip of water from my own cup. I don’t want to see the perpetrator - his gaze and movements would make me anxious and increase the pressure on me while testifying. If I could be in a different room from him, I would feel more at ease giving my evidence.”
“...like having counselling, to testify via video in a relaxed and comfortable environment would boost the survivor’s confidence. I don’t want the defendant to see me, nor do I want to see the defendant again, as it would increase my fear.”
“...to testify via video at a Social Welfare Department clinical psychology service centre, where the setup resembles a home or a counselling room with a sofa to rest on. There could be a doll to ease my anxiety. I would prefer to testify via video because I don’t want to see the defendant or the judge directly. I only need to see the court proceedings when I testify. And no need to hear what the defence counsel said.”
“...to have better interaction with the judge and lawyers. While ensuring I wouldn’t have to see the defendant, it would be good if they can hear directly about the harm they have caused to me. I would like to testify with a counsellor present, not only for reassurance but also to avoid being overwhelmed by sudden emotions that could affect my testimony.”
“...like a counselling room, with a sofa where I can hold onto my doll to help calm myself down, and have some snacks to ease my nerves. With a social worker beside me, I would know that I’m not facing this alone. If I feel overwhelmed, I could step out to take a breath before continuing. In the past, the perpetrator would suddenly become very angry and rush at me when I didn’t agree with him. If I could testify from another room, knowing that I am physically separated from him, it would make me feel much safer and more emotionally stable while testifying. If I were in the same room as the perpetrator, just hearing his voice would be highly triggering, affecting my emotions to the point where I might cry or become too scared to speak, which severely impacted my ability to testify.”
“...to testify in a room with a cosy and colourful environment. I am afraid of facing people. If I could testify in a private room, my psychological pressure would be greatly reduced”
“...to testify via video with someone accompanying me. It would also be fine if I could testify behind a screen with a companion”
In addition to the above excerpts, we have also compiled feedback and expectations from other survivors regarding court design. They hope to…
Avoid direct confrontation with the defendant: Victim-survivors generally worry that the defendant's gaze or behaviour will affect them. The defendant and their legal team often employ tactics that disrupt the emotional state of the survivors, sometimes causing unnecessary pressure. Therefore, it is crucial to ensure they do not have to face the defendant directly, such as arranging screens or separate rooms.
Have the option to give testimony via live television link: Allowing parties to testify in a safe environment through video can help alleviate their psychological stress and anxiety.
Create a comfortable environment: A testimony space that is warm and comfortable, equipped with items like sofa, can help survivors feel relaxed and safe, aiding them in focusing on stating the facts.
Provide emotional support: Having an appropriate support person nearby to offer immediate emotional support during the testimony and waiting processes can help survivors maintain emotional stability.
The feedback from survivors reflects not only their imaginations regarding court protection measures, but also their expectations for the judicial system's care for victim-witnesses. It conveys their desire for the judicial system to place greater emphasis on the safety and emotional support of victim-witnesses, enabling them to present the facts with confidence under the principle of fair trial, ultimately leading to justice.