When North looked closely at how rape trials were run, he was perplexed. The legislation was clear: free agreement to sex is the overriding definition of consent. But the focus in court is still regularly on the victim’s behaviour rather than whether they consented. Whether they flirted, what they were wearing and so on. “That completely contorted the legal framework,” says North. “And so I kept asking: ‘Why was this?’ ”
To get a sense of what was happening behind courtroom doors, the VLRC asked University of Wollongong academic Julia Quilter to analyse 25 Victorian rape trial transcripts. Quilter, who has just finished analysing 75 sexual offence trials in NSW, says her work in both states confirms the disconnect North noticed: progressive law reform over 40 years is being undermined by the way people behave in the actual courtroom.
One of the biggest changes to this area of law is that judges can address juries on common misconceptions. These “directions” can include noting that rape victims may not be physically injured and may not resist (it’s not uncommon to freeze, for example); that a person is not consenting if they wear sexually provocative clothes or have consumed alcohol or drugs; that rapes can occur between people known to each other (Australian Bureau of Statistics data indicate only one in five rapes involve a stranger); that a delay in reporting does not necessarily mean a complainant is lying; and that trauma may impact a person’s recall, such that they describe a sexual offence differently at different times, to different people or in different contexts.
A few of these directions are recent additions, but Quilter found that, in general, the ones that were available to judges during the period she studied were not used in a timely or consistent way. She found cases of judges forgetting to give them or disagreeing with them.
Source: 12ft | Sexual assault complaints have skyrocketed in recent years, but convictions remain low and the legal process is brutal for complainants. Many argue it’s time for an entire rethink.