From "Real Rape" to Real Justice? Reflections on the Efficacy of More Than 35 years of Feminism, Activism and Law Reform

Abstract

In this article, the author develops her observations made during the 2012 Suffrage Lecture at the University of Otago. Using the lecture as the starting point, the article considers what law reform over more than 35 years has actually achieved, with a specific focus on the admissibility of evidence about a complainant's previous sexual experience in a criminal case involving rape allegations. It concludes that although policy makers and legislators have been responsive to the concerns expressed by complainants about their treatment in the trial process, little real change to that experience has occurred. More fundamental work needs to be done by way of preventative education, challenging rape mythology and developing new processes to resolve allegations of sexual offending. These are the challenges for the next 35 years.

‘I Think it’s Rape and I Think He Would be Found Not Guilty’

“…This suggests that disillusionment with the criminal justice response to rape can be found in the general community, among legal professionals and among professionals working in the sexual assault field. Further research would be needed to determine whether this finding is generalizable, however, it is broadly in line with previous studies showing that the legal process is widely perceived as offering poor outcomes, often at high personal cost, for victims of sexual assault (Lievore, 2003; McDonald, 2014; Stern, 2010).…”

“…Further research would be needed to determine whether this finding is generalizable, however, it is broadly in line with previous studies showing that the legal process is widely perceived as offering poor outcomes, often at high personal cost, for victims of sexual assault (Lievore, 2003;McDonald, 2014;Stern, 2010).…”

“…For example, New Zealand legislation uses the reasonable grounds formulation ( Crimes Act 1961 (NZ) s 128(2)) and the Court of Appeal has approved a jury instruction on this provision as meaning that ‘no reasonable person, in the accused’s shoes, could have thought she was consenting’ ( R v. Mustafa Can [2007] NZCA 291 at [36]). Notwithstanding this strongly objective ‘reasonable person’ standard, conviction rates in New Zealand are comparable to those in other common law jurisdictions (Daly, 2011: 4) and juries have acquitted defendants in circumstances that have caused public outrage (MacDonald and Souness, 2011: 34).…”

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

“…New Zealand also endorsed a strong objective ‘reasonable person’ standard. Yet conviction rates in New Zealand are comparable to those in other common law jurisdictions (Daly, 2011), and juries have acquitted defendants in circumstances where a belief in consent was seemingly unreasonable (MacDonald and Souness, 2011). In Victoria, Larcombe (2011) has found that courts continue to endorse subjective and unreasonable beliefs in consent, despite reforms in 2007 requiring an objective standard.…”

“…Yet conviction rates in New Zealand are comparable to those in other common law jurisdictions (Daly, 2011), and juries have acquitted defendants in circumstances where a belief in consent was seemingly unreasonable (MacDonald and Souness, 2011). In Victoria, Larcombe (2011) has found that courts continue to endorse subjective and unreasonable beliefs in consent, despite reforms in 2007 requiring an objective standard. In Queensland, Crowe (2011) also found that several Queensland cases successfully invoked the defence despite clearly showing disrespect for the sexual autonomy of the complainants, and often using violence or occurring in the context of a marked imbalance in power such as incest.…”