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Published 27 February 2020

Research facilitates positive change for ‘brutal old days’ of rape trials

Elisabeth McDonald. Image: University of Canterbury

Cross-examination strategies in rape trials remain resistant to reforms, which continues to negatively impact on complainants despite initiatives to improve the legal process, a University of Canterbury (UC) expert says

Professor Elisabeth McDonald specialises in rape trial evidence and is publishing an Open Access book through Canterbury University Press (CUP) to make her research freely available to those working in this area of the law.

Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence Court Pilot contains findings from four years of research. It compares the trial process in 30 adult rape cases from 2010-2015 (in which the defence at trial was consent) with 10 cases from the Sexual Violence Court Pilot heard in 2018 (the pilot was established to reduce trial delays and improve the courtroom experience for complainants, particularly children).

Importantly, Professor McDonald was able to access audio records of rape trials. These contained additional material not included in transcripts, such as instances when a complainant was too distressed to continue giving evidence. This unique approach has effectively opened the court room door on rape trials and shed light on how and why they still often re-traumatise complainants. 

From the beginning of the research, Professor McDonald “was determined that it would not just amount to yet another demonstration of how the criminal justice system does not do right by rape victims. Rather, it might demonstrate how the adversarial trial process could be different, could provide fair trial process for both complainants and defendants, and not continue to be one of the reasons for the extraordinarily high attrition rates.” (An attrition rate is the amount of convictions resulting from reports of a crime).

Her determination to lessen potential harm to complainants has seen her use highly detailed research to make very practical reform recommendations to the whole life-cycle of the trial.

Rape myths, however, are still too often mired in confusion about consent and, despite greater awareness of consent in society, these myths persist in courtrooms. “The old stuff about what was she wearing, why didn’t she struggle, why didn’t she call out, why didn’t she go the police straight away? These questions are still being asked.” Professor McDonald says.

The book is an invaluable resource according to Professor Vanessa Munro (University of Warwick, UK) and Associate Professor Julia Quilter (University of Wollongong, Australia), who wrote the foreword; “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.”

With the digital version available for free online, the 586-page report makes an important contribution to our understanding of how victims of sexual offending are impacted by the trial process.

Professor McDonald brings the full weight of her expertise to the book, but writes for a wide audience so that sector workers, victim support agency workers, policy makers and students of law, criminology, criminal justice and sociology can benefit from the insights and recommendations. 

The research was funded by the Marsden Fund, the NZ Law Foundation, the Borrin Foundation and UC’s School of Law. Paulette Benson-Greig, Sandra Dickson and Rachel Souness contributed to writing and research.

Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence Court Pilot was launched at Professor McDonald’s UC Connect public talk: A cross-examination of rape myths on 26 February. The talk will be available on the UC Connect You Tube channel by 4 March.

Additional information: Professor McDonald's report: Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence Court Pilot

Additional information: University of Canterbury's UC Connect YouTube channel