Rape Culture within the Court Room

INTODUCTION 1 in 5 Australian women and 1 in 20 Australian men over 18 have been forced into unwanted sexual activity. 15% or less are reported to the police Cases involving victims who used alcohol are less likely to result in convictions Juries pay more attention to character and conduct of victim than actual evidence of rape (rape culture/victim blaming) Changes have be subverted by a legal culture that tends to discredit and disbelieve women and children who allege sexual abuse Victims accused of lying/false reports Behaving in sexually provocative ways (victim blaming, rape culture) Questioned about alcohol intake Asked about the way they are dressed Rape complaints have significantly different experiences within the court room than victims of other violent offences Differences between offences in the way stereotypes of deserving and undeserving victims are constructed The way in which defence counsel try to define normal, typical victim behaviour (e.g. be a traumatised wreck, be a virgin, not dress like a slut) Suggested to portray victims as legitimate victims by prosecution, so the jury think they look weak and like a victim, not like a slut who deserved it

SEXUAL HISTORY Focus on character of victim-complainant persistent (reflects societal attitudes towards rape) Suggest sexual reputation and chastity a sign of truthfulness and reliability as a witness Reformed laws in 1970/80 regarding sexual history evidence Recognised that unjustified use could be humiliating and distressing Its unjustified use could jeopardise a fair trial, producing unjust acquittals Attacks on credibility due to past sexually activity could imply that victims were unworthy of legal protection/partially responsible Not permitted in any jurisdiction but NT Sill being admitted (studies show) Legislation offers little guidance on distinguishing between sexual reputation )not admissible) and sexual history (sometimes admissible) Past sexual history evidence restricted in every jurisdiction Must apply and obtain permission of the court Establishes criteria that has to be satisfied Must not allow sexual history evidence to be introduced unless it is relevant to facts that are disputed in the case

Not substantially relevant if it only implicates the general disposition and general character of the victim complainant Sexual activities cannot be used in victim complainant cross examination about credibility of victim (unless it would be likely to substantially impair confidence) QLD law states that victim complainants cannot be regarded as less credible just because they have had sex Key reason to reform: causes distress and humiliation Defence cross examination dealing with sexual experience (brought up by prosecution) can allow wide-ranging access to sexual history Many sexual offences committed by partners (poor rates of reporting/conviction), sexual history evidence most likely to be used. The pervasive admissibility of sexual history in such cases maintains the myth that consent to sexual intercourse on previous occasions implies consent on all occasions. Reforms to law of evidence resisted by defence barristers Prosecution struggle to counter rape myth defences Prior convictions of the accused are generally not admissible, yet rape culture consistently denies female sexuality the ability to change over time. Hard to identify how sexual history of victim could relate to the reliability of victim complainant unless it begins from the premise that sexual promiscuity might make a woman less likely to tell the truth. Defence argue that evidence/allegations of prior rape implies victim complainant evidence is unreliable (because of emotional and psychological damage) Unclear whether evidence of prior assaults falls within the scope of provisions restricting admissibility of sexual history Different judges make different decisions Cross-examination of priors can be painful and humiliating Reform of specialisation in court lists and creation of specialist sexual offences courts Ensure compliance with legislative requirements -

http://www.aifs.gov.au/acssa/pubs/sheets/rs1/ Reforms and trends In the last 30 years, there have been major changes to the law concerning sexual offences in every state and territory in Australia. These changes generally reflect a shift away from a reliance on common law to guide judicial decision-making and, more specifically, a shift in how the offence of sexual assault is understood. There have been a range of changes introduced that encompass many aspects of sexual assault and rape laws, and this Resource Sheet will discuss some of them more closely in the next section. However, some of the major developments include:

a move towards a more statute-based model of law (i.e., legislation made by government); a shift in the previous conceptualisation of sexual assault (these shifts in the understanding of sexual assault have resulted in consent becoming the key focus and matter of contestation in a sexual assault trial) (see Table 4). acknowledgement of the circumstances in which a complainant is incapable of giving consent, or that undo any consent given, and the representation of this in the legislation of various states; for example: use of force; threats of violence or force; use of fear/intimidation; and complainant is asleep or otherwise unconscious (including as a result of voluntary consumption of drugs/alcohol); introduction of limitations in regard to the type of evidence that may be introduced about a complainant (such as in relation to their sexual history), in order to minimise the traumatic nature of the trial process for the complainant; and recognition that rape in marriage constitutes a criminal offence.

While these reforms have resulted in many positive changes to the way sexual assault cases are handled by the criminal justice system, victim/survivors navigating the legal system still encounter significant difficulties and barriers throughout the court process, often as a direct result of the way in which criminal offences are structured, as the next section will explore.

In attempting to discredit the complainant's version of events, it is common for the defence to insinuate that the complainant was in fact consenting. Research indicates this has occurred in recent sexual assault trials (Heenan, 2002-2003; Taylor, 2004). If the defence counsel is able to cast doubt as to the reliability of the complainant's version of events, or her credibility as a witness, then the occurrence of a sexual act without consent cannot be established beyond reasonable doubt, and the defendant cannot be found criminally responsible for his actions. This has frequently resulted in the defence counsel drawing on information about the complainant's sexual history, and a host of other information appealing to a jury's belief in rape myths (Taylor, 2004). Rape myths consist of inaccurate, "commonsense" understandings of what sexual assault is and what causes it. Rape myths may include beliefs such as:

women "ask" to be raped by dressing seductively or acting in a promiscuous manner; or men have a "right" to sexually access their partners.

As such, by introducing evidence that the complainant is, for example, sexually "promiscuous", this may cause the jury to believe the complainant was likely to have been

consenting to the sexual encounter under examination in the trial as well. That is, the defence counsel falsely uses such "evidence" to construct consent where there otherwise was none. As a result, many complainants have labelled the criminal trial process as akin to a "second rape", as their behaviour and sexual history, rather than the defendant's, is scrutinised throughout the trial (see Taylor, 2004 for a detailed overview of the tactics used by the defence counsel in attempting to discredit the complainant's version of events and construct consent). Recent amendments have been introduced (in Victoria, for example) that aim to reduce the ability of the defence to construct the presence of a complainant's consent through:

her past sexual behaviour and history; her clothing prior to the assault; consumption of alcohol - in many states individuals are now considered incapable of consenting if they are extremely intoxicated; and appealing to a jury's acceptance of rape myths to make it appear that the defendant had reasonable grounds for believing that the complainant was consenting.

However, such legislation prevents the introduction of information to varying degrees, and there is no state or territory legislation that imposes a total ban on the introduction of sexual history as evidence in sexual assault trials (Heenan, 2002-2003; Taylor, 2004). While these reforms are positive, and may reduce the traumatic nature of the trial, there is still evidence to suggest that information regarding factors such as a complainant's sexual history is raised as a matter of course during sexual assault trials (see, for example, Loughman, van de Zandt, Saw, & Hunter, 2007a & b; Heenan, 2002-2003; Taylor, 2004; Heath, 2005). For instance, a Victorian study found that evidence relating to sexual history and reputation was included in 76.5% of cases observed (Heenan, 2002-2003); although it should be noted that other studies have indicated that such evidence is introduced at a lower, though still significant, rate (see Heath, 2005). Likewise, in many cases the complainant's behaviour prior to, and during, the sexual assault are considered relevant in demonstrating her consent, or lack thereof. Certainly, establishing the mens rea requires some examination of the behaviour of the defendant, particularly under current "positive" notions of consent, as it is appropriate to expect that the defendant will have taken active steps to ascertain whether or not the complainant was consenting. However, the process of establishing the mental state of the defendant often results in an examination of the behaviour of the complainant. That is, it is through the complainant and her actions that we can figure out the likely mental state, and belief in consent, of the defendant. This raises similar issues to those discussed in the "Consent and actus reus" section of this commentary: namely, that the trial is focused on the actions and behaviour of the complainant, rather than the defendant; and that the "reasonableness" or likelihood that the defendant's belief in the complainant's consent may be based on "commonsense" (and inaccurate) understandings of normative heterosexual interaction (e.g., that a woman who has previously been sexually active will be consenting to any sexual encounter).

Indeed, a defendant may construct his entire defence on the basis of his knowledge of the complainant's sexual history, and consequently his belief that she was consenting to having intercourse with him also (Heenan, 2002-2003). Likewise, a complainant's belief in outdated notions of sexuality and gender roles, or misinterpretation of a woman's actions, may be used as grounds for establishing belief in consent. This is illustrated by a case observed by Heenan (2002-2003, p. 8), where the defendant posited that "his knowledge of her sexual conduct with other men allowed him to confidently presume she would also agree to have sex with him". (Note that the introduction of this sexual history evidence would also be relevant to establishing actus reus, as it also insinuates that the sexually "promiscuous" woman is more likely to have been consenting in the first place.) As Heenan notes, the true intention of this sexual history evidence is consequently difficult to decipher. While the outcome of this trial (and hence the success of this tactic) is not documented, it nonetheless demonstrates how inaccurate or stereotypical understandings of heterosexual sex and sexually active women may be commandeered to establish the defendant's belief in consent, or to create reasonable doubt as to the defendant's knowledge of the complainant's non-consent. While establishing the mens rea2 of the defendant is a mandatory component of most criminal offences, the preceding discussion indicates that the manner in which mens rea is constructed in sexual assault trials poses particular difficulties. This is because a woman's experience of sexual assault may be denied based on the mental state and knowledge of the defendant. That is, a defendant's honest but inaccurate belief in consent is privileged above a woman's actual knowledge of her non-consent.

http://www.aic.gov.au/documents/5/E/A/%7B5EA20012-C1F3-4EFB-8FADE6C8F4E45DD6%7D2004-10-decisions.pdf There is persuasive empirical evidence that victim characteristics are influential factors in prosecutors assessments of the prospects of conviction and therefore in their case processing decisions. This has raised concerns about the role of stereotyping in prosecutorial decision making. Estrich (1987) has put forward the influential argument that police, prosecutors and the judiciary do not treat all women and all sexual assaults equally. She argues that decisions in rape cases are not based on an indiscriminate, sexist mistrust of all victim/survivors, but are mediated by an interaction between the type of rape alleged and how closely victims conform to a set of characteristics attributed to genuine victims. From this perspective, a victims believability is evaluated by distinguishing between aggravated and simple rapes, which differ on the characteristics of the attack and the victim-offender relationship. Aggravated rape (real rape) features extrinsic violence, such as weapon use, threat with a weapon, or physical force, and is perpetrated by a stranger or by multiple assailants. In a simple rape, a sole perpetrator who knows the victim carries out the assault without using weapons or physical force. The relationship between the victim and offender determines whether resistance is required or non-resistance is plausible. Resistance is not required in inappropriate relationships where it is presumed that sexual access would be denied, so suspicion falls only on women in potentially appropriate relationships, who might

be confused, ambivalent, or having belated regrets about sexual activity. The profile of the genuine victim has been summarised as: a woman whose moral character is not in question, who did not engage in any type of risk-taking behavior at the time of the incident, who was raped by a stranger, who demonstrated her nonconsent by both screaming and physically resisting her attacker, and who reported the crime to the police immediately. (Spears and Spohn 1996: 192)

Extract from Reported Offences http://www.police.qld.gov.au/Resources/Internet/services/reportsPublications/statisticalRevie w/1011/documents/StatReview2010_11.pdf

Extract from Cleared Offences http://www.police.qld.gov.au/Resources/Internet/services/reportsPublications/statisticalRevie w/1011/documents/StatReview2010_11.pdf http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/ Chapter 32--Rape and sexual assaults 347. 348. 349. 350. 351. 352. Definitions for ch 32 Meaning of consent Rape Attempt to commit rape Assault with intent to commit rape Sexual assaults

349 Rape (1) Any person who rapes another person is guilty of a crime. Maximum penaltylife imprisonment. (2) A person rapes another person if (a) the person has carnal knowledge with or of the other person without the other person's consent; or (b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or (c) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent. (3) For this section, a child under the age of 12 years is incapable of giving consent. 350 Attempt to commit rape Any person who attempts to commit the crime of rape is guilty of a crime, and is liable to imprisonment for 14 years. 351 Assault with intent to commit rape Any person who assaults another with intent to commit rape is guilty of a crime, and is liable to imprisonment for 14 years.

While the statistics are good, make sure you focus on court-based statistics within the body of your essay. I would only refer to one or two of these charts/tables in my Background Information or Introduction. Make sure everything you discuss is court based.

http://www.aic.gov.au/documents/0/B/6/%7B0B619F44-B18B-47B4-9B59F87BA643CBAA%7Dfacts11.pdf

Rape occurs if one person has: Carnal knowledge (s6 If carnal knowledge is used in defining an offence, the offence, so far as regards that element of it, is complete on penetration to any extent) of or with a person without their consent. The vulva, vagina, anus of a person is penetrated to any extend by a thing/body part that is not a penis without consent The mouth is penetrated to any extent by a penis without consent A child under 12 cannot give consent

Consent is freely and voluntarily given by one who has the mental capacity to do so. It is not freely given if it is obtained by: Force Threat/intimidation Fear of bodily harm Exercise of authority False and fraudulent representations about the nature/purpose of the act Mistaken belief induced by the accused person that they were the victims partner

In a criminal court of law within Queensland, the prosecution must prove beyond a reasonable doubt that the accused is guilty. Therefore, the defences job is to create doubt within the jury/judge about the evidence being used by the prosecution. Within rape cases, the defence generally tries to disprove the victims statements and accounts of what happened, going as far as to prove the victim as a whole to be unreliable and untrustworthy.

ISSUE VICTIM BLAMING IN COURT ROOMS 1. Investigate the issue: Why are parties in conflict? Explain relevant legal principles and arguments from the parties What is the social justification and implications for those principles and arguments? What community issues are involved or should be involved? 2. Reflect upon a solution: Are there any possible / preferable solutions? What are social implications for these solutions? Do solutions involve the perceived application of concepts of justice, fairness, equity and ethics? What is the social justification for solutions? Does the legal system adequately address the issue? If present solutions / system is considered inadequate, what are alternatives that should be made and why are they socially better? 3. Resolve the issue: What are the alternative procedures available? What are the consequences? What is the legal solution? What is the social justification

CORROBORATION No legal requirement for evidence that confirms a single witness statement In the PAST, Australia required that juries be warned of convicting sexual offence accused with uncorroborated evidence Victim complainants treated as potentially unreliable witnesses Because of ease of making unfounded allegations, difficulty of refuting, jury sympathy and womens tendency to lie RAPE CULTURE Feminists argue that this creates barriers to reporting/prosecuting, produces acquittals and adds additional humiliation for the victim-complainant Statutory reforms means warnings no longer legal required High Court Australia handed down decision no longer be regarded as unreliable witnesses, abolished requirements for corroboration warnings, judges still retain discretion to give warning if warranted Judge may be obliged to give warning even if corroborating evidence, and defence hasnt requested warning Warnings could direct jury to scrutinise victim-complainant evidence Reforms have not been universally affective Reforms suggest legislative guidance on when warnings are required, propose mandatory instructions to the jury References for Inquiry

http://web.ebscohost.com/ehost/detail?sid=25a3cd79-8021-490e-8a8ef2778cc1402c%40sessionmgr4&vid=1&hid=22&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3 d%3d#db=anh&AN=201210301003540910

http://web.ebscohost.com/ehost/detail?sid=9d17b21e-adcb-4b05-b5332960917c8e48%40sessionmgr15&vid=1&hid=22&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ% 3d%3d#db=anh&AN=apn.R01G5KVI POSSIBLE CASE STUDY

http://web.ebscohost.com/ehost/detail?sid=b0ed2e09-103c-4a34-8a8e6a74453b6dc8%40sessionmgr14&vid=1&hid=22&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ% 3d%3d#db=anh&AN=201211062007577579

http://web.ebscohost.com/ehost/detail?sid=2b3e3ce7-1951-41e0-94b9e000aa4d70d7%40sessionmgr4&vid=1&hid=22&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ% 3d%3d#db=anh&AN=P6S135169454612 POSSIBLE CASE STUDY

http://web.ebscohost.com/ehost/detail?sid=bd4362f7-af2c-4ea2-b212c99678a83ef7%40sessionmgr10&vid=1&hid=22&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ% 3d%3d#db=anh&AN=201208156020047111

http://web.ebscohost.com/ehost/detail?sid=47407cd5-59f7-4fea-b5bf1d729ce4dc08%40sessionmgr4&vid=1&hid=22&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3 d%3d#db=anh&AN=201205101001848477 POSSIBLE CASE STUDY

http://www.pandys.org/whatisrape.html - SUPPORT WEBSITE

http://www.lukesarmy.com/content/child-protection-boss-scandal-defended-they-getaway-murder - GANG RAPE SCANDAL

http://www.theaustralian.com.au/news/child-rape-sentence-pathetic/story-e6frg6oo1111115072997 - GANG RAPE SCANDAL

http://conservativeweasel.blogspot.com.au/2007/12/ten-year-old-girl-consents-to-gangrape.html - PROBABLY CONSENTED

http://worldlii.org/au/journals/AUIndigLawRw/2009/6.pdf - GANG RAPE CASE PDF

http://jezebel.com/332377/prosecutor-says-gang-rape-of-10-year+old-girl-was-childishexperimentation GANG RAPE SCANDAL

http://news.smh.com.au/national/aurukun-gang-rape-case-prosecutor-quits-200801041k7z.html - GANG RAPE SCANDAL PROSECUTOR QUITS

http://web.ebscohost.com/ehost/detail?sid=8c7479da-bc9b-45da-a5c37269aa65dd8e%40sessionmgr13&vid=1&hid=22&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ %3d%3d#db=anh&AN=74C2972026062 STATS

http://ozcase.library.qut.edu.au/qhlc/documents/qsr_criminal_law_sexual_offences_act_19 78_1nov81.pdf - Legislation

http://www.alrc.gov.au/sites/default/files/pdfs/publications/25.%20Sexual%20Offences.p df REFORMS

http://www.brissc.org.au/resources/for/for_7.html - SUMMARY

http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/ - CRIMINAL CODE

http://www.austlii.edu.au/au/other/VicOmbPRp/2009/1.pdf - VICTORIA STATS

http://www.austlii.edu.au/cgibin/sinodisp/au/other/lawreform/VicLRCmr/1976/5.html?stem=0&synonyms=0&query= rape REFORMS

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CriminLwSexOA78.pdf CRIMINAL OFEENCES ACT

http://www.legislation.qld.gov.au/LEGISLTN/ACTS/2000/00AC043.pdf - CRIMINAL LAW AMMENDANT ACT 2000 http://www.austlii.edu.au/au/legis/qld/bill_en/clab2000215/clab2000215.html - BILL EXPLANATORY NOTES

http://www.qccl.org.au/documents/Sub_TOG_4Feb00_Women_and_the_Criminal_Code.p df - TASK FORCE ON WOMEN AND THE CRIMINAL CODE

http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1411&context=blr

http://www.nricc.com/en/support/legal.asp

http://www.guardian.co.uk/social-care-network/2013/mar/26/supporting-rape-victimsin-court

http://www.dailymail.co.uk/news/article-2321131/Bravery-violinist-Frances-Andradedriven-suicide-abuse-trial-inspires-30-women-come-forward.html

http://www.dailymail.co.uk/news/article-47156/Rape-victims-face-tougher-courtquiz.html

http://www.today.com/news/rape-victim-shocked-when-court-ordered-her-computerrecords-1C6380851

http://justicewomen.com/testifying_tips.html

http://www.aifs.gov.au/acssa/statistics.html - STATISTCIS

http://www.aic.gov.au/documents/0/B/6/%7B0B619F44-B18B-47B4-9B59F87BA643CBAA%7Dfacts11.pdf STATISTICS

http://www.criticalidealism.net.au/blogfiles/deathpenalty_linx.pdf OPINION

http://www.nationmaster.com/graph/cri_rap_percap-crime-rapes-per-capita STATISTICS

http://www.hindustantimes.com/India-news/newdelhi/Issue-guidelines-on-rape-victimsSupreme-Court/Article1-1047807.aspx - Reform

http://justicewomen.com/help_special_rape.html#two Investigation

http://justicewomen.com/handbook/part2_d.html#typical Investigation

http://www.scribd.com/doc/104614917/Unfair-Treatment-of-Rape-Victims-during-CrossExamination-in-Court - CROSS EXAMINATION

http://www.aifs.gov.au/acssa/pubs/issue/i4.html - INFO AND REFORMS