Study confirms ‘rape myths’ still persist in sexual offence trials

The aim of the study was to better understand the effectiveness of the reforms that have been progressively introduced in NSW sexual assault trials since the Crimes (Sexual Assault) Amendment Act 1981 No.42 (NSW). The reforms abolished the crime of rape, instead creating three new sexual assault offences, and made provisions relating to evidence in sexual assault proceedings.

As the report on the study highlights, further reform is needed. The report, “Experience of Complainants of Adult Sexual Offences in the District Court of NSW: A Trial Transcript Analysis”, arises from the study commissioned by the NSW Department of Communities and Justice, through the NSW Bureau of Crime Statistics and Research (BOCSAR). It’s nearly 30 years since the landmark 1996 “NSW Heroines of Fortitude Report”, and 40 years since legislative reforms were first made to improve the experience of victims in sexual offence trials.

More than 30,000 pages

The study shows that many of those reforms are operating as intended, but various aspects of the conduct of trials still result in a negative experience for victims of sexual violence. It was conducted by Professor Julia Quilter from the School of Law at the University of Wollongong and Professor Luke McNamara from UNSW.

Quilter, a national and international expert on criminal law and specifically on sexual assault law reform, outlined to LSJ the task of the study:  to review the operation of legislative and privacy protections, examination-in-chief and cross-examination approaches, prosecution responses, judicial interventions, rules of evidence and jury directions.

The dataset Quilter and McNamara used was a set transcripts of 75 sexual offence trials finalised in the District Court of NSW between 2014 and 2020. This was no minor task: the dataset encompassed more than 30,000 pages of transcripts.

The trials, held in a variety of locations across NSW, involved sexual assault charges and other sexual offences. Some trials involved a jury, while some were conducted by a judge alone. The majority of the trials involved female complainants (96 per cent), and most complainants were aged 15–29 years (71 per cent).

Waves of reform

Quilter tells LSJ, “We’ve had progressive reform in this area for over 40 years, which started in 1981 followed by successive waves of reform, such as in 1987 and 2007. The most recent wave has been the changes to consent laws [in 2022]. Over that course of 40 years, there’s been lots of reforms both to the substantive offence but also to the procedures.”

In terms of what is “working well”, Quilter points to the common use of closed court arrangements, the opportunity for complainants to give evidence via CCTV from a remote location, access to a support person and use of pre-recorded evidence in retrials, which are all reforms working as intended.

Quilter says, “In the majority of cases, the complainant had a support person with them. There was good evidence across the study that where the complainant asked for a break, it was given to them proactively: the Crown’s defence counsel and judges were good at observing signs of distress and tiredness or measuring the amount of time a complainant had been giving evidence and allowing breaks accordingly.”

Quilter says, “In the majority of cases, the complainant had a support person with them. There was good evidence across the study that where the complainant asked for a break, it was given to them proactively: the Crown’s defence counsel and judges were good at observing signs of distress and tiredness or measuring the amount of time a complainant had been giving evidence and allowing breaks accordingly.”

She adds, “Three-quarters, so the majority, of complainants in our study gave evidence via CCTV footage, so that’s working well. So is the use of recorded evidence from a prior trial if, for instance, there’s an appeal and the conviction was overturned, or it was a hung jury. Additionally, there’s been a complete prohibition upon naming or in any way identifying victims, which is working well.”

Quilter also points to what is colloquially called “the rape shield” protections as improving the trial experience for complainants to a degree.

“So, questions about sexual reputation are prohibited,” she clarifies. “In our trials, we found that the application process is operating in terms of how it’s laid out in the legislation. Typically, pre-trial applications are made either by the Crown or the defence, submissions are taken, and then the decision is made in relation to the content or the types of questions to be asked in relation to sexual experience. That said, on most occasions, while the procedure was working, most questions were permitted to be asked.”

Persistence of myths and stereotypes

Quilter says trials displayed a continuing focus on the conduct of the victim, and whether they had consented, with less attention paid to the accused’s knowledge in relation to consent.

“We found that rape myths and stereotypes about how a genuine victim of sexual violence should behave featured prominently in the trials we examined,” she tells LSJ.

“The report,” Quilter adds, “identifies a number of places where we thought that the counsel had asked a question about clothing that we were not necessarily expecting to see, given [those questions are] often regarded as something typical of bygone days. Examples of that were found in both the Crown referring to clothing and cross-examination in relation to clothing. Certainly it didn’t surprise me, but it is out of step with contemporary values. My view would be that flirting is one thing, but that shouldn’t lead to some sort of assumed consent to sexual activities at a later time.”

On 1 June 2022 sexual consent laws changed in NSW, with the main amendment to the reform bill being the new definition of consent under section 61HI of the Crimes Act (NSW). This stipulates that a person consents to sexual activity if, “at the time of sexual activity, the person freely and voluntarily agrees to the sexual activity”. The recently inserted section 61HH defines sexual activity as sexual intercourse, sexual touching or a sexual act.

Quilter has comprehensively studied and reported on the concept of ‘rape myths’, an area that was addressed in her June 2022 report, “The most persistent rape myth? A qualitative study of ‘delay’ in complaint in Victorian rape trials,” co-authored with McNamara and Professor Melissa Porter.

“What ‘rape myths’ refers to is a construction of sexual assault or rape,” Quilter explains, “that is divorced from the research and evidence about how sexual assault commonly occurs. The classic example is that rape is something that happens in a dark alley, perpetrated by a stranger with a weapon, and the victim is physically injured during the sexual assault.”

The truth is vastly different, she says.

“Obviously, we know most rapes occur between people who know each other, and commonly occur in residential settings. In more than 90 per cent of our trials, assaults occurred in residential settings, and weapons can be an aggravating feature of a sexual assault but are not typically present.”

Discrediting the complainant

Myths also permeate common public expectations of how sexual assault victims will defend themselves, Quilter says.

“There are ways that people might expect the complainant to act during the time of the rape or after. Two of the main expectations are that the victim will verbally or physically fight off their attacker, and that they will make an immediate report of sexual assault. The evidence, however, is that people freeze.”

During trials, it is not only the way complainants do or don’t defend themselves, but also their sexual history that has been used to discredit them.

The study indicated that provisions of the Criminal Procedure Act 1986 (NSW) that restrict questioning on a complainant’s sexual “reputation” and past sexual experience were followed in most cases, although this did not prevent the admission of complainant sexual experience evidence in a significant proportion of trials (50 per cent).

Some of the significant findings in the study include complainants being regularly cross-examined about having made a delayed or incomplete complaint (84 per cent of trials in the study), having failed to physically resist (53 per cent of trials), having failed to verbally communicate non-consent (53 per cent of trials), and having incomplete or inconsistent recall of events (76 per cent of trials).

Inconsistent recall of events is addressed more positively in trials, Quilter says: as a researched, evidence-based phenomenon.

“We’ve got a really good jury direction in relation to differences in account. In the case of minor differences in the way that sexual assault is recalled it is considered normal because of the way that trauma affects memory.”

Areas for reform

“Experience of Complainants” identifies several areas for attention. The first is the way the Crown case is presented: there should be more emphasis on communicative and affirmative consent, the researchers say.

They also advise greater attention be paid to the rules and practices governing the relevance of evidence and the admissibility of credibility evidence, and the associated cross-examination questioning. Recommendations include the wider use of pre-trial ‘ground rules hearings’, and better use of jury directions.

The researchers also advise greater attention be paid to the rules and practices governing the relevance of evidence and the admissibility of credibility evidence, and the associated cross-examination questioning. Recommendations include the wider use of pre-trial ‘ground rules hearings’, and better use of jury directions.

It is compelling, Quilter says, that in 73 per cent of trials the complainant was accused of lying about or inventing the sexual offence allegation with ulterior motives.

She says, “Largely, historically, there has been a long tradition of assuming rape is an easy allegation to make and difficult to disprove, and that women will lie about sexual assault for different reasons. Their credibility and their reliability is often put to test during a trial, with the final outcome often being to suggest that the allegation has been made up. That’s the case in 95 per cent of the trials implicitly, and expressly in three-quarters of the trials, where it was given as a motive for why the complainant had made an allegation.”

Quilter is clear on the urgent and necessary need for further reforms.

“Sexual assaults make up a significant number of trials in the NSW District Court, so it’s important that we’re getting things right. Obviously, trials are very resource intensive, so let’s improve them. The cornerstone of justice is the presumption of innocence, but we must also ensure complainants are not left feeling that they were the person on trial.”

More changes to reduce trauma in trials

Ultimately, Quilter and McNamara found that the problem was not that judges and lawyers ignore or misapply the special rules for sexual offence trials, but that the 40 years of reforms have not made significant changes to elements of trials that are traumatic for many complainants. What is required, Quilter advises, are reforms to address the adversarial nature of proceedings, and the breadth and sensitivity of topics complainants might be asked to address.

The report also calls for the introduction of ground rules hearings (GRHs) for all sexual assault trials, which are a pre-trial procedure that was introduced or trialled in a number of jurisdictions in recent years for sexual offence trials where the complainant is a child or cognitively impaired adult. Hearings of this kind are an opportunity to discuss and decide how the complainant will be questioned by counsel, with a view to minimising distress. The report acknowledges that the resource implications of this proposal will need to be considered, and the form and parameters of GRHs should be the subject of discussion and consultation.

But there is precedent for these reforms. The Victorian Government, via the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic), made relevant amendments to the Criminal Procedure Act 2009 (Vic) mandating GRHs for complainant witnesses in sexual offence trials. Additionally, the Dorrian Review in Scotland also recommended GRHs for all sexual offence trials and consequently, in April 2023, the Scottish Government introduced legislation that will, inter alia, implement this recommendation.

Quilter is cognisant of the historic value of the study she and McNamara have conducted, and its capacity to further progress the waves of reform that have been improving the experience of sexual assault trials for complainants over the last four decades.

“I feel really privileged to be able to do this research and to have access to these transcripts because having worked for 30 years in this field, I know that it’s unusual and rare to be given this access and it hasn’t happened since the 1996 NSW Heroines of Fortitude Report.

“I think we’ve had so many good-willed, progressive reforms and I also think there’s been a big commitment from successive NSW governments to get this right since 1981. It’s a difficult area to change and specific reforms have worked well, but a lot of evidence laws allow things to come into the trial that make it particularly difficult for complainants.”