There’s been a concerted effort to modernise rape law in Australia across the last 40 years. Changes have been evidence-based — a rare thing for criminal law reform — to reject common, victim-blaming myths previously embedded in common law.
But while legislation has changed, not all lawyers have. Evoking rape myths is still standard courtroom practice.
There is a paradox here. Lawmakers have gone to considerable lengths to “bust” certain rape myths, from what a “real rape” looks like, what a “genuine victim” does, to attitudes and assumptions that jurors and judges should not bring to rape trials. And yet, complainants are still being asked questions that effectively invite jurors to bring exactly those myths and stereotypes to their decision-making.
Myth #1: Did you fight back?
One of the classic myths is that a true rape complainant “resists to the utmost”, fighting back and bearing physical injuries to prove it.
But for over a decade, consent laws have focused on free and voluntary agreement and a so-called communicative model of consent.
Language in the crimes acts and criminal codes has been updated to reflect this. For example, in NSW consent is defined as “if the person freely and voluntarily agrees to the sexual activity. In Victoria, “consent means free agreement”.
So any expectation that a complainant must resist to be believed in court should be abandoned. It follows, you would think, that defence lawyers would stop asking questions about what she did or didn’t do at the time of the rape. Not so much…
“Why didn’t you scream? Did you try to force him off? Did you actually say no? Didn’t you smile at him on the dance floor that evening?” Questions like these are asked regularly in contemporary rape trials.
Myth #2: How a ‘genuine victim’ behaves
Another example of the resilience of rape myths is the treatment of “delay” — a failure to report the rape immediately. In common law, a failure to do so was grounds for inferring that the complainant had consented to the sexual intercourse and that her testimony was unreliable.
Since the 1980s legislative reforms have attempted to overturn such assumptions about how the “true” rape complainant will behave. In Victoria if the judge considers it is likely that evidence in a trial suggests the complainant delayed in reporting, the judge must inform the jury that people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence. This direction needs to be given even before the evidence is admitted. It is hard to imagine how the law could be clearer, beyond an outright ban on evidence of “delay”.
Yet questions designed to elicit “delay” evidence are still commonplace. Delays, whether they are days, hours or minutes, are brought into question.
It’s not only when a victim reports rape that is scrutinised, but how. It might be not so much that the complainant waited too long, but that she told the wrong person (her friend not her mother), went to the wrong place (the hospital not police station) or was insufficiently precise in the initial disclosure (“attacked” not “raped”).
So much for there being no “typical, proper or normal” response.
Defence counsel pursue these lines of question presumably because they are still confident that the underlying rape myths can be evoked in jury members. But it’s not only defence counsel that keep these myths alive. Prosecutors find it hard to resist drawing attention to aspects of a case that have “real rape” characteristics — the complainant did fight back, expressly said “no”, immediately told the first person they saw they had been raped.
It could be argued that the Crown should put the strongest case forward to achieve justice for the complainant and the community. But what are the implications for the larger project of modernising rape law and consigning rape myths to history?
Myth #3: Women lie
The most disheartening aspect of all this is being reminded that the narrative of the complainant lying is still central to the courtroom. We have come so far in understanding sexual violence — its prevalence, impact, reality. We know these things. And yet, in the courtroom, these truths are forgotten.
Against all the collective evidence shared by sexual violence victims about their experiences, the trial is conducted on the basis that this complainant is a liar. Defence lawyers can be endlessly creative in their theories (or fantasies) about why she lied: to “cover up” consensual sex from a partner, to avoid an employer discovering “partying” behaviour, as revenge for being rejected… simply add your reason here. This tactic is so common as to be a “logic” of rape trials.
Given the trauma that complainants so often experience in rape trials, why doesn’t a different logic prevail: why would anybody manufacture and persist with a “lie” knowing the consequence will be the awful ordeal of a rape trial?
And why wouldn’t the undeniable facts about the sheer scale of sexual violence — from high schools to the High Court to Parliament — loosen the grip of myths on how rape trials are run, even just a little?
If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.
Julia Quilter is a former solicitor and criminologist at the University of Wollongong.
“Myth #3: Women lie”
And lawyers lie all the time. My experience is that they aren’t interested in the truth, just blackening their opposition’s client’s reputation.
And Magistrates and Judges are complicit in this perversion of the Law. They don’t call out the offending lawyers.
Surely doesn’t go on now, but wait…. according to ABC News 9/4/2021 “Lawyers for Malka Leifer, the former ultra-orthodox school principal accused of dozens of child sex offences, have said the “home life” of her alleged victims may be probed, as they seek to test the evidence against her”.
Malka’s going to be a lifer..
So many whitened sepulchres are going down with this case.
I could also read that as a threat to shine a light on the victims family generally.
Im not passing judgement on their beliefs….
Her victims are from Australia’s most cloistered inward looking Jewish sect. The equivalent of the Amish. They arent allowed to watch or read unsanctioned media, nor to have internet access except with a Rabbi approved filter. There is a really good documentary on the group, where they allowed access to a family in St Kilda to explain their daily practices. Worth watching. Also watch the series Unorthodox. Satmar sect, so not exact same group as the victims, but brilliant and compaassionate stuff.
The prohibition against airing dirty laundry in public (I dont recall the Hebrew term) is a fundamental law in their society.
When the victims go to trial, I would expect questioning the families adherence to ultra orthodox practices will be a weapon of choice, so as to serve as a warning to others in the sect. Maybe it will drag out sexual history, but I expect there will be more dog whistling to the sect on subtle stuff those outside the group will not understand.
I have talked this stuff through with my wife and my best mate from the old days who is also a woman. My mate reckons among other things that in her days working in Canberra for a local government group that parliament and the Press Club were little more than pickup joints with fancy names. She is a give as good as she got woman too. Her take on the “women lie” concept is yes sometimes they do but no one in their right mind would go as far as court with that idea. I know that women have used sex to get ahead now and then (known one or two who admitted it) and a couple of serious liars as well, but I also have seen enough to know that men are the ones who push the issue and have helped rescue a couple who escaped unpleasant situations and if they were lying then they should have been in Hollywood. And it does not matter what a woman is or has been, unwanted sex is a degradation of their being and an assault in the most personal possible way. No one deserves that!
Only ONE that comes to mind – the NSW prison officer who got rolled by his police employee wife and her new police officer boyfriend. Shes now in prison and he is suing the police dept.
Id support the legal system upping the penalty for being caught making false allegations. There would need to be a very very high level of confidence but if anyone was caught red handed lying like that woman was, they MUST throw the book at her to shut down the false claim arguement.
This goes for any offense and not just sexual assault.
I agree fully that false SV accusations are unlikely to make it to court under the current system. (Domestic violence could be a different story though given the often messed up dynamics between SOME couples). We need to ensure that increasing the false claims isnt an unexpected byproduct of changes to the legal system.
A bit like saying we can reduce bank security arrangements because people arent robbing them. Changes need to be done very cautiously.
As I have been trying to explore in the comments section of the Consent App article by Amber, I think the real push back from males around the false accusation issue is at the lowest end of the violence spectrum. The Aziz Ansari situation. Waking up the next day to media or police wanting to talk about two different viewpoints on what was consensual.
But I will say, history is full of people police trying to nail some ‘bad dude’ for crime A via crime B. One of my favorite songs comes to mind…Bob Dylan’s The Hurricane.
Or next week, month, year or decade.
As agni pointed out, if the rules around innocence and evidence are changed, does this also flow on to all complainants and defendants regardless of their LGBTIQ+ or cis status? I cant see gender ever being written into any such piece of legislation. What about other criminal offenses? What about civil offenses?
Not trying to be obtuse, but realisticly how can myth #3 be resolved systematically. Im genuinely seeking WORKABLE ways forward.
I always wonder why women lie so much but men never lie about their sexual adventures. Do our lawmakers and lawkeepers seriously think we believe that bullshit anymore? Clearly we still operate in an environment where Adam and Eve constitute the models of behaviour that our lawyers and judges use to determine a woman’s tendency to ‘draw men into evil’. Can we not just make those kinds of imputations illegal and subject to legal censure by the judge in rape trials? And if not called out by the judge then the judge should also be censured.
Yes, there is surely no reason why a man accused of sexual assault or rape would lie…?
The 3 Abrahamic cults have as a central tenet “…a woman’s tendency to ‘draw men into evil’” as demonstrated by Pakistani PM Imran Khan a couple of days ago.
Lotsa luck getting that out of the minds (sic!) of the deluded.
It’s not uni-dimensional. Evidence exists (affirmative and negative) with each of the examples.