Expert Witness Evidence in Sexual Assault Trials: Questions, Answers and Law Reform in Australia and England

Abstract

A review of the psychological literature shows that jury-eligible citizens rely on a range of misconceptions based on victim and gender stereotypes when assessing the credibility of sexual assault complainants and rendering verdicts. Since these misconceptions are likely to account for the high attrition and low conviction rates in sexual assault trials in both England and Australia, this article investigates whether or not educative information ought to be admitted in these trials via an expert witness or a judicial direction. It also investigates the type of expert evidence that would be admissible in an adversarial context and the legislative models for doing so, based on Australian reforms. The article concludes by making four recommendations for reform to the laws of evidence in Australia, England and Wales.ike many other developed countries, the crime of sexual assault in Australia and England and Wales is characterised by low reporting rates, high attrition rates and low conviction rates at trial, 1 indicating that a sex offence is one of the most difficult crimes to investigate and prosecute. It is likely that the feedback effect of low conviction rates at trial influences the type of cases that police and prosecutors will investigate and prosecute, as well as the low guilty plea rate for those charged with a sex offence compared to other offences. 2Many have argued that because sexual assault is the type of crime where forensic evidence may be unavailable or unable to prove a lack of consent, the problem is one of evidence 3 or false complaints. 4 If a case involves the word of a complainant against the word of a defendant, with little or no corroborating evidence, insufficiency of evidence is said to be both the problem and the reason for low conviction rates at trial and high acquittal rates before trial.The contrary argument is that myth, prejudice and disbelief surround the reporting, investigation and prosecution of sexual assault, 5 producing a 'culture of scepticism'. 6 While this may account for the reluctance of police to investigate some cases, a culture of disbelief also permeates the criminal trial, including the jury room. It cannot be assumed that the average juror 'has a good understanding of all the insights that decades of psychological research have yielded' 7 about the effects of sexual assault on victims. This means that jurors, making decisions

It’s All or Nothing: Consent, Reasonable Belief, and the Continuum of Sexual Violence in Judicial Logic

“…In this sense, the complainant still carries the practical responsibility of unambiguously communicating the absence of consent (Cossins, 2013). The reasonableness of the accused's belief in this sense is always tied up with the credibility of the complainant.…”

“…In this way, the standards of ‘reasonable belief’:fits like a perfect jigsaw piece into the traditional conduct of the sexual assault trial, the structure of which has, historically, encouraged the jury to focus on the complainant’s behaviour, in order to determine what ‘signals’ she sent the defendant and invites the jury to blame the victim for the defendant’s belief. Thus, the inquiry remains the same whether the standard is subjective (an honest belief) or objective (a reasonable belief) (Cossins, 2019: 475).In this sense, the complainant still carries the practical responsibility of unambiguously communicating the absence of consent (Cossins, 2013). The reasonableness of the accused’s belief in this sense is always tied up with the credibility of the complainant.…”

Credibility in context: Jury education and intimate partner rape

“…For discussion that supports the admissibility of general expert evidence serving a narrow educative function, see Ellison (2005). On calls for legislative intervention see, for example, Cossins (2013).…”