More than 40 years ago, lawmakers began listening to sexual violence victims, advocates, and activists when they made clear that traditional criminal law and criminal prosecution were not serving them well.
in New South Wales, The Offenses (Sexual Assault) Amendment Act 1981 (NSW) It was the first of many laws introduced to address gender biases in the law. This included the unacceptable treatment of surviving victims when presenting evidence that was a feature of rape trials.
In 2023, on paper, the laws governing crime definitions, rules of evidence, and trial procedures will be very different from those of the 1970s. But how different are things in practice?
We have recently been commissioned by the New South Wales Government to undertake a text study for sexual offenses trials at the NSW District Court, as part of their Bigger review “Experiences of complainants of sexual offenses in the New South Wales criminal justice system”.
In its report for 2020 Consent in relation to sexual offencesThe New South Wales Law Reform Commission stressed the importance of follow-up research that assesses whether the intended benefits of legislative reforms have actually been achieved.
This was a rare and important opportunity, as no study of this magnitude based on access to transcripts of trials had been completed since this historic event. Fortitude heroines report by the New South Wales Department of Women’s Affairs in 1996.
By sharing our main findings here, we want to express our thanks to the complainants in the sexual offense trials examined in this report. Although we have never met them, their stories are at the heart of this study and their voices are present in the (anonymous) quotations from the texts that appear in Full report Recently published by the New South Wales Bureau of Crime Statistics and Research.
We examined more than 30,000 pages of transcripts from 75 sex offenses trials completed in the NSW District Court between 2014 and 2020. Our primary objective was to assess the adequacy of the existing arrangements to meet the legitimate needs and expectations of the complainants.
Our findings can roughly be divided into two categories: aspects of the experiments that have changed for the better, and those that have not (yet) been fixed.
We found that procedural reforms designed to improve the experience of complainants in sexual offense trials were generally working as intended. This included arrangements such as allowing complainants to testify via surveillance cameras from a remote location. Not all complainants want to testify in this way (some choose to appear in person in a courtroom), but this is an important measure to reduce the agony of being a witness and to ensure that witnesses are not in the same room as witnesses. The person they accused of sexual violence.
We also saw that complainants had regular access to a support person and, with a few exceptions, the judges took care to ensure that the court was closed to members of the public when the complainant was giving evidence.
In addition, judges and lawyers for the most part adopted respectful methods of communicating with the complainant, and were sensitive to the need for breaks when the complainant was sad or tired.
“Rape Shield” laws. contained in the Criminal Procedure Act 1986 (NSW) – which was designed to prohibit questions about sexual ‘reputation’ and to regulate questions about sexual experience – it generally worked as intended.
Against the background of criticisms that these rules are too restrictive, we note that some form of questioning about sexual experience was permissible in 50% of the trials in this study.
Experimental features that remain
Myths and stereotypes about rape were still very prominent in the sexual offense trials we examined. Many of the experiments in this study were conducted in such a way that they were framed by a set of unwritten (and problematic) rules about what “real rape” looks like and how a “real” victim of sexual violence behaves.
Importantly, this was not just a consequence of how the defense attorney had questioned the complainant – the prosecution’s case was also often built on one or more features of “real rape”.
For example, the Crown case has often asserted that the complainant physically resisted the attack, or that the complainant reported the matter immediately – although these are no longer required to support the claim.
The defense has often played the other side of the “real rape” coin, highlighting the absence of features traditionally associated with a “real” allegation.
Cross-examination and closing statements accusing the complainant of lying were common. In 73% of trials, the complainant was accused of fabricating an allegation of a sexual offense for a hidden purpose (eg, in one case, to extract compensation for plastic surgery).
Defense attorneys were allowed to ask questions on a wide range of topics. These included distressing issues such as the complainant’s history of mental illness, substance abuse, criminal convictions, or the removal of children from his or her care. Questions about previous “flirted” behavior were common, as were questions suggesting that the complainant failed to act after the event in ways a “real” victim might.
Much has changed regarding how complainants are questioned in sexual offenses trials, but much remains to be done.
Our report for the NSW Bureau of Crime Statistics and Research identified a number of additional reforms that merit consideration. These include:
A modified approach to framing the Crown’s case, with more emphasis on consent as “free and voluntary agreement”, less reliance on the attributes of “genuine rape”, and more space for the complainant’s voice.
A more robust and restrictive approach to the admissibility of evidence relating to the complainant and his actions, including what is considered “relevant”.
Initiate pretrial “ground rules” hearings for all sexual offense trials. These decisions must include prior decisions not only about how the questions are asked, but also about the topics to be covered.
These measures can contribute to the long overdue removal of rape-related myths and stereotypes from sexual offense prosecutions and unfair scrutiny of complainants.