Practising Critical Reflection to Develop Emancipatory Change

Challenging the Legal Response to Sexual Assault

Christine Morley

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781138248427
• eBook ISBN:
  9781317076476
• Topic: Politics & International Relations
• Subtopic: Peace & Global Development
• Index: Politics & International Relations

Overwhelmingly, critical practitioners working across a range of human service fields, who are committed to emancipatory and progressive social change ideals, report feeling powerless, alienated from the means of change, and hopeless about their capacities to make a difference in the lives of the individuals, groups or communities with whom they work because of restrictive contexts that ultimately determine the nature and parameters of their work. This ground-breaking book addresses this dilemma by demonstrating how critical reflection as an educational tool enables practitioners to envision possibilities for change. The legal system, particularly in its response to sexual assault provides a perfect example of this type of context and this volume explores the work of sexual assault practitioners that are engaged in supporting victims/survivors of sexual assault through the legal process. By reshaping ideas that have previously been considered as predominantly theoretical and abstract, Morley's work provides an innovative framework that enables social work and human services practitioners to find hope, agency and practical strategies to work towards change, despite operating in contexts that appear immutably oppressive.

1 Introduction

DOI: 10.4324/9781315601953-1

This book provides an innovative framework that enables social work and human services practitioners to find hope, agency and practical strategies to work towards change. Many social workers, particularly those who are committed to critical and emancipatory goals, report feeling exhausted, powerless, alienated from the means of change, and hopeless about their capacities to make a difference in the lives of the individuals, groups or communities with whom they work. This is testament to the complex, challenging nature of the work they undertake, the demanding roles they fulfil, and the rapidly changing, uncertain and often, restrictive contexts in which they practice.

However, by demonstrating how critical reflection as an educational tool enables practitioners to envision possibilities for change, the research presented in this book supports and resources practitioners who are interested in continuing the struggle for a more socially just, democratic and equitable world, despite having to work in contexts that appear immutably oppressive. The legal system, particularly in its response to sexual assault, provides a consummate example of this type of context. Hence the research presented in this book explores the work of sexual assault practitioners that are engaged in supporting victims/survivors of sexual assault through the legal process.

It is therefore a book about resistance – not only to the problems embedded in the legal response to sexual assault, but to the full array of dominant discourses (such as neo-liberalism, professionalism, medicalisation, colonisation) that impact the contexts in which social workers operate, and often limit our perceptions of our capacities to resist. The research explores the type of theorising and political engagement that is not limited to dismantling formal structures, but harnesses the potential of critical postmodernism and critical reflection as emancipatory tools that can assist practitioners to critique received wisdom and agitate for change in multiple ways. Specifically, this book presents the findings of original research to demonstrate how a particular model of critical reflection, first developed by Fook (2002) and later refined by Fook and Gardner (2007) and Fook (2012), was used to enable sexual assault practitioners to develop a clear capacity to think about their personal agency to work towards change.

This book makes a solid contribution to the practical theorising of critical reflection, by reshaping ideas that have previously been considered as predominantly theoretical and abstract, to make them accessible for practitioners to inform their thinking and action in meaningful ways. The book demonstrates the contribution that critical reflection makes to professional practice, not only for the field of sexual assault, but also for a range of fields of practice where social workers feel overwhelmed and disempowered by seemingly insurmountable structural barriers to change.

Locating Myself in the Research

The research presented in this book explores counsellors/advocates’ ¹ perceptions of their capacities to bring about change in the legal response to victims/survivors of sexual assault. Whilst counsellors/advocates are the ‘frontline people’ to assist victims/survivors, they are typically neglected in the literature (Maier 2008: 786). The research was conducted in the context of the Australian legal system that is widely lamented amongst practitioners who work in the field of sexual assault as unresponsive and hostile to victims/survivors and impervious to change.

1 This term is used to refer to the practitioners who work in Centres Against Sexual Assault. These practitioners are usually social workers, psychologists or qualified professionals in related disciplines.

The focus of this research emerged from my experiences of working as a counsellor/advocate at a number of Centres Against Sexual Assault (CASA) across regional Victoria. My work predominantly involved short- to longerterm counselling with adult women who had either experienced recent rape or been subjected to sexual assault in childhood. ² I also worked as an after-hours counsellor/advocate, providing a crisis intervention response for victims/survivors of recent rape, while coordinating police and forensic medical involvement.

2 In particularly acknowledging the experiences of women, I do not wish to deny that men also experience sexual violence (Carpenter 2006, Doherty and Anderson 2004, Graham 2006, Oosterhoff et al. 2004, Rumney and Morgan-Taylor 2004, Stermac et al. 2004, Washington 1999). The use of gendered language in this book, however, is quite deliberate in reflecting the gendered nature of sexual assault in that statistics consistently demonstrate that the overwhelming majority of victims/survivors are women and children (Dekeseredy and Joseph 2006, Gilmore 1995).

My practice in this role spanned just over seven years during which time I supported numerous women through the legal process. Sometimes, in my after-hours capacity, this process included advocating with police and forensic medical professionals for the victim/survivor immediately after an assault. This generally involved supporting the victim/survivor during the forensic examination and the making of an initial report to police.

More comprehensively, the business hours counsellor/advocate response would often follow the legal process in its entirety. The legal aspect of this role included supporting the victim/survivor to make a formal statement to police, ensuring that the victim/survivor was kept informed of the progress of an investigation, being notified if and when a perpetrator was charged and preparing the victim/survivor for the court process. Finally, in those rare cases in which the Office of Public Prosecutions (OPP) decided there was enough evidence to proceed, my role involved preparing the victim/survivor for the committal hearing and trial process, including cross-examination, and supporting her through this (see for example Campbell 2006, Yancey Martin 2005). As other practitioners acknowledge:

The fact that sexual assault is a crime means that as sexual assault counsellors we are working in the context of the criminal justice system. The criminal justice system may exist on the fringes of counselling for victims of sexual assault but it is a constant presence, always there in the background influencing our practice. The consequence being, that we are constantly making decisions in the context of not only competing professional and ethical codes, but also complex legal codes. (Gardiner and Roberson 1995: 229)

Although engagement with the legal system was not the most significant part of my role, it was the aspect that often caused the most frustration and disillusionment. The inappropriateness and failure of the legal system to deliver just outcomes can be devastating, particularly for those who have had the courage to pursue legal justice for the crimes committed against them, but also for the practitioners who are charged with the responsibility of supporting them. These practitioners repeatedly witness the acquittal of perpetrators, and the demeaning legal processes to which victims/survivors are subjected, with a sense of powerlessness.

Despite the countless police statements I have witnessed being taken and the numerous committal hearings and trials I have attended, I never once worked with a complainant of sexual assault whose engagement with the legal system resulted in the conviction of the perpetrator. Of those cases that proceeded to trial, all of the perpetrators were acquitted usually on the basis of lack of sufficient evidence to convict.

I have been present in the court room while defence lawyers have asked the victim/survivor a seemingly endless number of irrelevant and ridiculous questions, demanding that she give precise details, specific dates and times; sometimes when the abuse had occurred more than 10 to 20 years ago, and sometimes when, at the time of the abuse, she may only have been five or six years old. Courts have seemed disinterested in the fact that the energies of that child were understandably dedicated to surviving the abuse at the time, rather than memorising specific details so that they could be recalled exactly in court decades later.

When following the legal process, my work with these women would typically involve responding to the consequences of their experience with the legal system_ police who had not believed victims/survivors, trivialised their experiences, or had generally been disrespectful; detectives who did not prioritise their case, and who did not tell them when developments had occurred; long delays; several adjournments; defence lawyers who had intimidated victims/survivors, accused them of fabricating their experience of sexual assault, blatantly used myths about sexual assault to blame victims/survivors and discredit their version of events whilst exonerating the accused; perpetrators who had sneered and disturbingly stared at victims/survivors during the hearing to make them feel intimidated and uncomfortable; magistrates who had blamed victims/survivors and dismissed important evidence; and juries who had not believed victims/survivors and ultimately acquitted the perpetrator. The devastation of this often humiliating and distressing legal process, combined with a legal outcome that denied victims/survivors’ experiences, was often interpreted as a secondary assault by the system which caused a level of trauma that rivalled the initial sexual violence.

I always felt apologetic at this point; apologetic that each woman had endured one of the most abhorrent experiences possible and that the legal remedies available to her would almost certainly compound and exacerbate the original injustice. Perhaps more pertinently, I felt apologetic about the fact that my role was to support her but that I was powerless to change her disempowering experience. I despised the fact that my role as counsellor/advocate seemed to position me in the placation of the victims of an unjust system, rather than meaningfully organising for resistance and change. I knew that these women deserved more from me than an acknowledgement that they had been wronged.

I am not alone in these observations. Other practitioners have similarly observed:

In our counselling and court support with clients over many years, we have witnessed the struggle of many children and adults enduring the legal process. We have also often worked with clients for months after their court appearances in counselling as they address the traumatising effects of their participation in court. (Mitchell et al. 1995: 123)

However, despite the extensive acknowledgement of the inadequacies of the legal response to sexual assault (documented in chapters 2 and 3) victims/survivors have a right to expect that they will not be subjected to processes of secondary victimisation by the criminal justice system. They have a right to be heard, to be treated with respect and integrity, to feel safe during the legal process and a right to a fair trial.

Some practitioners refer to the disparity between victims/survivors’ basic rights and their actual experiences in the legal system as a ‘crisis of witnessing’ (Jarvis and McIlwaine 1997: 3). For some researchers, such experiences have contributed to initiatives to study victims/survivors’ experiences in a more systematic way (see for example Carmody and Carrington 2000, D’Arcy 1995, Heath 2007, Mitchell et al. 1995). However, as Carmody (2003: 199) asks, ‘How is it that we now know so much about the extent and manifestations of gendered violence, yet remain unable to find ways to stop it happening or at least to reduce its occurrence?’

For myself as a practitioner/researcher, the impact of the experiences that I have witnessed as part of my work heightened my awareness of the need to explore possibilities to create change. My observations fuelled my motivation to research alternative ways to think about the kinds of practices that might assist practitioners to envision their exercise of agency and power, to develop different ways to engage with the judicial system and to...

Table of contents

• Cover
• Half Title Page
• Dedication
• Title Page
• Copyright Page
• Contents
• Foreword
• Preface and Acknowledgements
• List of Abbreviations
• 1 Introduction
• Introduction
• 3 Theorising the Impact and Thinking about Change
• 4 The Need for Law Reform
• 5 Alternatives for Thinking about Change: Critical Postmodernism and Critical Reflection
• 6 Stories from Front-line Practice
• 7 Identifying and Challenging Barriers to Change
• 8 Finding Alternative Paths: Resisting Further Obstacles to Change
• 9 How Does Critical Reflection on Practice Develop Possibilities for Change?
• 10 Critical Postmodern Theory: Enhancing Feminist Practices and Prospects for Change
• 11 Final Reflections and Concluding Comments
• Appendix 1 Deconstruction Questions
• Appendix 2 Reconstruction Questions
• References
• Index