Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence Court Pilot

Despite decades of targeted law reform, adult complainants still report that the process of being a witness is a significant point of re-victimisation. This book contains the findings of four years of research that compares the trial process in 30 adult rape cases from 2010 to 2015 (in which the defence at trial was consent) with 10 cases from the Sexual Violence Court Pilot heard in 2018. The aim of the research was to find out at which points in the questioning process the complainant displayed heightened emotionality, including distress, and why cross-examination (in particular) is so resistant to reform measures. Researchers also considered the extent to which the current rules of evidence and procedure are applied appropriately and consistently, and identified examples of best practice in order to develop proposals for changes to law and process.

 Key features:

• Analysis of a large sample of cases;
• Internationally unique methodology through access to the audio of the complainant’s evidence in order to annotate the transcripts for heightened emotionality, judicial intervention in questioning and admissibility decisions;
• Assessments of aspects of the Sexual Violence Court Pilot not undertaken as part of the Gravitas/Ministry of Justice evaluation (2019).

“This book is detailed in its analysis, rich in its insights and far-reaching in its implications. It should be read by anyone involved in, or concerned about, the handling of sexual violence allegations in contemporary criminal justice systems, in and beyond Aotearoa New Zealand – whether as a judicial officer, legal practitioner, government policy officer or academic … Elisabeth’s work is absolutely essential if we are to improve the experience of complainants in rape trials – and to make a dent in the ‘brutal old days’ that are, unfortunately, still with us.”

From the Foreword by Professor Vanessa Munro (University of Warwick) and Associate Professor Julia Quilter (University of Wollongong)

Elisabeth McDonald is a Professor of Law at the University of Canterbury. She has taught and published in the areas of sexual and family violence, law and sexuality, criminal law and the law of evidence for 30 years, as an academic and as the Policy Manager for the evidence law reference at the New Zealand Law Commission. Elisabeth is the author of a number of evidence law textbooks and online legal resources, as well as co-editor of From “Real Rape” to Real Justice (2011) and Feminist Judgments Aotearoa: Te Rino, the Two-Stranded Rope (2017). In June 2018, she became a Member of the New Zealand Order of Merit for Services to Law and Education.

Contributors

Paulette Benton-Greig is a lecturer at Te Piringa-Faculty of Law, University of Waikato, where she teaches in the areas of criminal justice and procedure, and in socio-legal studies topics. Prior to her academic position, Paulette worked in social services provision and policy, mainly in the area of violence against women. Those various roles included being a manager at Auckland Sexual Abuse HELP, a board member of a sexual violence restorative justice organisation, contributing to the Taskforce for Action on Sexual Violence and as a senior advocate at the Domestic Violence Centre.

Sandra Dickson has been working in gendered violence prevention and intervention responses for more than two decades, including holding national roles in both the family and sexual violence sectors in Aotearoa New Zealand. Sandra moved into government briefly to develop responses to the “Roastbusters” sexual violence events in 2013. During the last 15 years, she has led research into trafficking in the sex industry in London, and sexual violence primary prevention, media reporting of sexual violence, partner and sexual violence in Rainbow communities and attitudes towards gender roles and diversity in Aotearoa New Zealand.

Rachel Souness has a broad background in legal roles, including reform-orientated research work in both civil and criminal contexts. Rachel worked as a researcher on the Law Foundation funded project undertaken by Jeremy Finn, Elisabeth McDonald and Yvette Tinsley, which culminated in the publication of From “Real Rape” to Real Justice (2011). She has worked in both courts and tribunals, and has volunteered as a community panel member for restorative justice. Most recently, she has spent the majority of her time outside the paid workforce, caring for the next generation of feminists.

Watch Elisabeth's UC Connect public talk: A cross-examination of rape myths.