Comment

Jacinta Masters
How to ease the trauma of sexual assault testimony

The path to justice shouldn’t lead to further harm. For victim-survivors of sexual assault, however, seeking recourse through the criminal legal system often means being resubjected to denial of agency and control.

As the trial of American rapper Sean “Diddy” Combs unfolded in the media over recent months, we have heard much about women confronting their abuser years after the alleged incidents, and recounting some of the most horrific moments of their lives in open court. This gruelling process is standard for complainants in sexual assault proceedings in both the United States and Australia.

It doesn’t need to be this way.

More compassionate and trauma-informed legal processes are available. Indeed, the Australian Law Reform Commission’s (ALRC) recent inquiry into justice responses to sexual violence came up with 64 recommendations for improvements. One in particular, if nationally adopted, would make a world of difference for those who want to access it. It’s hoped that the upcoming Standing Council of Attorneys-General meeting will attend to it.

All victim-survivors should have the option to prerecord their testimony.

The ALRC inquiry’s report, released in January, affirmed what victim-survivors of rape have been saying all along: the legal system doesn’t support them to seek justice, and of those who do end up engaging with the system, many experience ill-treatment and retraumatisation.

Giving evidence not only requires a victim-survivor to recount their trauma. While doing so, they can expect to be questioned on the specific details of the sexual assault in minute and graphic detail.

Sexual violence is about power and control. Too often, the court system replicates this dynamic by not giving a victim-survivor options to better protect and support themselves through the process. It should provide them agency to choose whether they want to confront in court the person who harmed them, or prerecord their testimony and start to move on with their lives.

A prerecord is usually conducted outside a courtroom, in a safe, private and secure location. The recording is then played to the jury at trial.

This process allows the complainant to testify in a less intimidating environment, closer to the time of the abuse; and means they do not have to attend the trial or be in the presence of the accused if they don’t want to be. Prerecording also means they are less likely to have to repeat painful retellings of those experiences in retrials or other proceedings.

It can also improve the quality of a complainant’s evidence by allowing them to provide their account closer to the time of the assault. As I have mentioned in conversations with attorneys-general, it is much easier to recall the details of something that happened months ago, rather than years in the past.

Critically, prerecording evidence can also reduce the distress associated with cross-examination, which many victim-survivors report as the most harmful aspect of court proceedings and as a type of revictimisation. Unfortunately, despite attempts to improve procedural rules, complainants are too often subjected to invasive questions, many of which perpetuate rape myths that are irrelevant and inadmissible. These may include questions about the complainant’s sexual history or what they were wearing at the time the incident occurred. Ideally, such inadmissible and irrelevant questions would not be asked at all, but when cross-examination is conducted through the prerecording process, they can be edited out so that the jury will never hear them.

Studies on the use of pretaped cross-examination with children have found it reduced stress for complainants, improved their experience of the process and reduced the danger of the complainant encountering the defendant at court.

Prerecorded testimony can also be a way to avoid the pain of waiting to give evidence during the trial process. Many victim-survivors wait years to give evidence, due to lengthy trial delays and adjournments, in the meantime suffering anticipatory anxiety and prolonged stress. Some I have worked with in New South Wales and Victoria have said that delay can be one of the most significant forms of retraumatisation – a fact also acknowledged by the ALRC.

Pretaped testimony allows victim-survivors to give evidence much earlier, enabling them to move on with their lives and focus on their wellbeing. Seeking justice should be a healing path, and prerecorded testimony aims to safeguard against the reopening of wounds, offering survivors a more trauma-informed and empathetic course through the justice system.

The Fair Agenda movement is campaigning for legislative reform across Australia so that all victim-survivors of sexual violence have the option to prerecord their testimony.

Along with Sexual Assault Services Victoria, we are calling for all jurisdictions to adopt an approach to testifying that gives the victim-survivor more agency. Complainants in sexual assault cases should have the option to prerecord their evidence for all stages of the process: evidence-in-chief, cross-examination and re-examination. Courts should be permitted to edit testimony for admissibility and relevance, which would mean excluding questions that the court’s own rules say should never have been asked. This approach would also prioritise a survivor’s mental health over judicial continuity – that is, whether or not they will have the same judge throughout the prerecord and trial process.

These proposals were largely supported by the ALRC’s report on justice responses to sexual violence, but most states and territories are lagging when it comes to implementing critical changes and are falling behind on community expectations.

Reforms are before the Western Australian parliament right now, and it’s disappointing to see that their model fails to provide the necessary agency. Instead, the bill requires a victim-survivor who wants to prerecord their testimony to go through the process of securing consent from a judge first.

To date, only the Northern Territory and Queensland have laws that allow all victim-survivors to prerecord their testimony. The NT has integrated this procedure as standard for the past two decades, while Queensland introduced it in 2024. Both jurisdictions allow it as a right of complainants, and the choice is not left up to the discretion of the judge. In fact, NT legislation states that an order may be made if requested by the prosecution, and the court must comply with that order unless there are good reasons not to.

Victoria, New South Wales, South Australia, the Australian Capital Territory and Tasmania are yet to implement any changes to allow adults the option to pretape their testimony.

Despite the ACT government’s recent claim, such reform can be delivered without causing delays to trials – as demonstrated by longstanding experience in the NT. Adequate technology is already in place around the country to allow the seamless introduction of prerecorded testimony in adult sexual assault trials. Currently, all states and territories allow pretaped testimony for child victims of sexual abuse, for all stages of the trial process, including evidence-in-chief, cross-examination and re-examination, as well as any retrials and other proceedings.

One possible advantage of extending this right to all complainants in sexual assault trials is that, over time, it might encourage more reporting as the process becomes more trauma-informed. We know that sexual violence is under-reported: the most recent Personal Safety Survey data collected by the Australian Bureau of Statistics detailed that about nine in 10 women did not take their most recent experience of such abuse to the police. Moreover, only a small fraction of reported cases lead to a charge: a study tracking the progress of sexual assault reports made to the NSW Police Force in 2018 showed that just 15 per cent resulted in criminal proceedings.

Alongside its recommendation to make prerecorded testimony more widely available, the ALRC also advised that complainants should have access to a justice system navigator or independent legal services to help them make an informed choice about whether or not to prerecord. The commission also called for more training for judges, prosecutors, police and court staff in trauma-informed and culturally safe practices. In order to ensure people who do not speak English as their first language understand the options available to them, the commission also recommended offering more interpreters and multilingual information on court processes.

The key people who could make prerecording a reality across Australia are the attorneys-general of each state and territory. This week, they are meeting for the quarterly standing council, and the ALRC inquiry recommendations are on their agenda.

We’re urging the attorneys-general to act on the recommendation to allow for this form of testimony nationwide. It is a decision that would help ensure victim-survivors navigating court have more agency and less fear in their fight for justice.

This article was first published in the print edition of The Saturday Paper on August 9, 2025 as "Easing the trauma of testimony".

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