The Violence of Judgment: Judging, Credibility and Victim-Witnesses of Sexual Violence in Civil Justice

How justice systems respond to sexual violence, and specifically to people who have experienced sexual violence, is increasingly brought into critical focus by the public, the media, advocacy groups and the law and justice professions. This article explores the experience of victim-witnesses in the context of the civil justice system, with a particular focus on the role of the judge as finder of fact, the evaluation of victim-witness credibility, and its consequences for the victim-witness of sexual violence. I argue that the differing role of the judge between the criminal and civil justice systems is critically important to the experience of the victim-survivor, and that this difference extends beyond their experience in the courtroom and also encompasses how the judge evaluates their credibility as a witness. As finders of fact, judges hold the power to make a witness feel seen, or not seen; silenced, or heard; believed, or disbelieved. The act of judging, then, has the potential to inflict epistemic violence on the victim-survivor, as to whether their testimony is heard and believed. I explore how judicial methodologies for determining witness credibility operate in practice with reference to two recent high-profile Australian defamation cases, Rush v Nationwide News (2019) and Lehrmann v Network Ten (2024). These cases reveal both the influence of the effects of trauma and myths and misconceptions about sexual violence on judges as finders of fact, and also how that influence may be identified, understood and overcome. The article concludes by reflecting on the importance of judicial evaluations of witness credibility to public perceptions of the doing of justice in the civil court system.