27 Feb 2020

Rape trial study leads to call to ban certain questions from courtrooms

7:49 pm on 27 February 2020

A comprehensive study of rape trials in New Zealand has sexual violence advocates calling for certain questions to be banned from the courtroom.

Judge talking with lawyers to make a decision in the court room

Photo: 123rf.com

Elisabeth McDonald from the University of Canterbury has listened to audio recordings of forty rape trials where the defence argued sex took place by consent.

Her analysis of the trials has resulted in a 568-page book Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence Court Pilot, which is being made available online for free.

The book includes multiple transcripts from the trials, to indicate the type of language and questioning used, as well as 55 recommendations for change.

It was still routine for complainants to be questioned about the clothes they were wearing and why they didn't scream for help or fight back, she said.

The question over why a victim of violence didn't go to the police immediately was also common.

Elisabeth McDonald

Elisabeth McDonald. Photo: University of Canterbury

McDonald said that type of question perpetuated the many pervasive myths about rape that arose in the courtroom, in this case, the implication being that something as serious as rape should be reported to the police immediately, which can be difficult to do for many reasons.

And the types of questions or language used could re-traumatise a victim of sexual violence or cast doubt over their experience, she said.

That, in turn, dissuaded victims of sexual violence to come forward.

Complainants were often belittled, asked to provide gratuitous details about the attack, have details of their pasts dredged up, and were accused of being flirtatious.

McDonald acknowledged the importance for a defence team to do the best by their clients and for society to have access to a fair trial.

"It's important that defence can cross-examine, and they can challenge and they can put an alternative scenario, but it's how that happens and trying to reduce re-traumatising."

Research reflects experience

Rape Crisis spokesperson Andrea Black said the research reflects what workers and survivors experience.

Of the 55 recommendations, one stuck out for Black.

"The recommendations around specialist training for all legal people involved in the court and trial process is really important, including the defence," she said.

"While people in the court are a reflection of the public to an extent, they are doing a really specialist job and they need specialist understanding."

Black said she would like to see some types of questions banned from the courtroom, including around a complainant's sexual interactions or lifestyle.

"The point is: has consent been given or present? ... Some of those questions are unfair and continue to perpetrate rape myth and are incredibly traumatising and shameful."

But Law Society spokesperson Chris Macklin said banning certain questions would not achieve the desired result, even if they could be problematic.

"It's easy to blame lawyers within the courtroom setting for perpetuating rape myths while offering up a defence, but the situation is more nuanced than that," he said.

"The rape myths reflect not the activity of some cheeky and clever lawyers, but actually some pretty unhelpful and unhealthy attitudes that we have in society to sex and consent."

Macklin said McDonald's research was "very" valuable for enabling conversations about the problems, and with the Sexual Violence Legislation bill going through Parliament, he hoped it would be the spark to ignite wide-scale reforms.

"The current system, let alone any kind of reformed or alternatively managed system to try and mitigate trauma for complainants, is stretched beyond capacity."

"A massive issue for everyone involved is getting trials on in a timely way, and get the resources that we need to do things like provide complainants with alternative modes of giving evidence," he said.

The Parliamentary under-secretary for the Minister of Justice Jan Logie said the research showed there was no one thing that would fix the problems, and legislation changes were just one part of the solution.

"We're putting a lot more resource into prevention, into services on the ground and making sure there is much better support for complainants going through the court process," she said.

The government was also looking at the definition of consent and looking at alternative pathways for people who wanted the harm to be addressed but didn't want to go through court, Logie said.

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