What does it take to get a successful prosecution for rape?
On Tuesday, the justice system served up an answer when a jury found former rugby league hero Jarryd Hayne guilty of two counts of sexual assault.
It takes three trials, one appeal, an aborted jail sentence, almost five years, countless dollars in legal fees and taxpayer funds, and unquantifiable amounts of trauma extracted from the victim.
It helps if you have sustained injuries during the assault and if a video of a blood-soaked bed has been tendered in evidence, and also if you have contemporaneous communications expressing your lack of consent to what occurred.
But even then, juries will struggle to reach a unanimous verdict. This will prolong your ordeal.
Hayne, who has maintained his innocence throughout, has already said he will appeal the verdict, so it is not over yet, anyway.
The saga of Hayne’s journey through the justice system has kept court reporters and barristers in business since 2018, when he was charged by Sydney police for the alleged sexual assault of a then 26-year-old woman in Newcastle.
Hayne had visited her home in a taxi, which he kept running outside her home, while he went into her bedroom.
The prosecution alleged he digitally and orally assaulted her, with such violence that she bled.
The first trial was delayed for six months due to COVID restrictions, and during the proceedings, the complainant stepped down from the witness box and cursed Hayne as she walked past him in the dock.
She called him a “f–king piece of shit”. She later apologised.
That jury failed to reach a verdict and was discharged.
A second trial began in Sydney in 2021.
During that hearing, the prosecution argued that Hayne felt “entitled” to sex with the young woman, as he was missing the NRL grand final to be with her.
The defence said Hayne respected that she didn’t want to have “sex”, but believed she had consented to oral and digital sex.
The jury didn’t accept his defence, and found him guilty of two counts of sexual assault, having known or been reckless to the fact that the woman did not consent.
Hayne was found not guilty of a lesser charge, but sentenced to five years and eight months for the two more serious ones.
He had only served nine months in prison before his barrister successfully appealed the verdict, on the basis that the jury had been given faulty directions.
A third trial was ordered – it contained little new evidence apart from some testimony from another man the victim was in contact with at the time of the assault.
He said she had told him that if he didn’t come and see her, she would get Hayne to come over instead.
The trial began in March.
The prosecution said that the woman had been open to the prospect of sex but that “evaporated” when she realised Hayne had a taxi waiting outside – this became apparent when the cabbie honked her horn.
The case was atypical because it involved a high-profile perpetrator, and because a conviction was (eventually) secured.
But it was typical of most sexual assaults in other ways.
It involved a perpetrator who was known to the victim. It involved some level of sexual or romantic interest on the part of the complainant (however small or vague), and it involved what is often termed an “imperfect” victim.
Although the aperture for “perfect” victim is so narrow, one wonders how any woman can pass through it.
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