“It’s endemic in the eastern suburbs – every single one of my female friends has been in a situation where they have been in a sexual encounter where there was no consent,” Ms Brown said. “Too many men think silence is consent.”
The Sun-Herald is using a pseudonym for the victim because she cannot be legally identified and has chosen not to name the offender at the victim’s request because she is worried he or his family might lash out.
In 2019 a jury at District Court in Gosford found Ms Brown’s offender guilty of one count of sexual intercourse without consent. The judge’s sentencing remarks state that Ms Brown was at a party at a friend’s beach house in Pearl Beach in 2016 when she fell asleep on a couch, then woke up to find the offender’s fingers inside her vagina.
Ms Brown testified that earlier in the evening the offender had started touching her vagina over her swimsuit when they were in the spa and she had called friends over to make him stop and then left the spa herself.
Ms Brown, who was 20 at the time of the assault, had known the man since year 8 and they did not have a sexual relationship.
Ms Brown said waking up with someone’s fingers inside her was “confusing and distressing” and she broke down crying on the beach with her friends but it was not until someone asked if she was planning to go to the police that she registered the fact it was a crime.
Ms Brown later received a text from the offender confessing and apologising for what happened. She eventually reported the attack at Waverley Police Station, wanting to put it on record in case it happened to anyone else and initially believing she could just record the incident rather than be part of a prosecution.
It was a harrowing couple of years while she waited for the case to get to court and the first six months were the hardest as she dealt with the fallout among her friends.
“I was super emotional … and I just couldn’t understand why all these men that I was friends with couldn’t really relate or empathise and were still hanging out with him,” she said. “I couldn’t believe they wouldn’t see it as black and white like the girls did.”
Ms Brown said she was not sure what changed but her male friends stopped spending time with the offender after about six months.
When they got to court the first time, the judge recused himself because he knew the defendant. After preparing herself mentally for the trial, Ms Brown was devastated.
When it finally got to court in 2019, Ms Brown gave her testimony by video link so she didn’t have to face her offender but he kept moving to appear in the corner of the frame.
Ms Brown said the cross-examination was “horrendous” because a defence lawyer “can just say whatever they want” to provoke a reaction even if the propositions are not part of anyone’s testimony or other evidence before the court. She believes that should be reformed.
Ms Brown said the defence lawyer accused her of stroking the offender’s penis, hiding her Facebook account from the police, and allowing the assault to happen based on the fact she had been taught sex education at school and didn’t use what she knew to stop it occurring.
Ms Brown also thought it was unfair that a criminal defence case did not have to set out its own truth but could wait for the prosecutors to hand over evidence and then use it “like pieces of a puzzle to construct a lie”.
Ms Brown said she regretted going to the police many times because of the stress, but she would still encourage other women to report assault because it was the only way to achieve change.
When she finished testifying, she felt “euphoric”.
“By the end of the week, I had this strange confidence where I was walking past him and his family with my head held high because I felt so proud of what I did,” she said. “Getting the guilty conviction was literally just the cherry on top.”
Her testimony was recorded for future court proceedings but Ms Brown was told this week there is a small chance she would be called back as a witness in the appeal hearing. A panel of judges will decide whether to allow an appeal in August.
Ms Brown said the police and public prosecutors who worked on her case were excellent. She says this is one way her case differs from Ms Higgins’ experience, where the alleged rape was allegedly covered up.
But other elements feel similar. Ms Higgins has called out Prime Minister Scott Morrison for language she feels is “victim-blaming” and Ms Brown believes the news article published in The Sunday Telegraph last weekend was too.
She felt sick to the stomach” when she read it because it was obviously her case but it skipped over key facts proven in court like the fact she was asleep at the time of the assault. She felt belittled by the way it described them all as “rich kids” at a drug-fuelled party and the headline referring to a “sex charge” rather than a conviction.
“I thought it was over,” she said. “I’ve walked away from it with my head held high, but now it feels like my character is getting dragged through the mud.”
Ms Brown said the fact she has successfully gone to court and proven her allegations beyond reasonable doubt to a jury of 12 people should confer credibility, given how difficult that is. The Australian Institute of Health and Welfare estimates one in six women and one in 25 men have experienced sexual assault since the age of 16 and in four cases out of five the perpetrator is known to the victim. However, only about one in 12 female victims report it to police and if the case makes it to court, only about half result in a conviction.
Sunday Telegraph editor Mick Carroll said he was more than happy to talk to the victim directly about any concerns she had with the newspaper’s reporting of the court proceedings.
The offence carries a maximum sentence of 14 years’ imprisonment and a non-parole period of seven years. In August 2020, four years after the rape, the offender was given a non-custodial sentence of community service and rehabilitation, with the judge citing the offender’s poor mental health and unlikelihood to reoffend.
Ms Brown said she was disappointed with the sentence in principle but the guilty verdict was enough personal satisfaction and she did not need to see him go to prison.
NSW Rape Crisis Line 1800 424 017
Caitlin Fitzsimmons is a senior writer for The Sun-Herald, focusing on social affairs.