False and outdated rape myths are actively harming court processes

A new BOCSAR report found that rape myths and stereotypes, which are entirely false and completely outdated, are re-traumatising victim-survivors and actively harming court processes. 

Abigail gave notice of the following motion:

(1) That this House notes that according to research published in August 2023 by NSW Bureau of Crime Statistics and Research (BOCSAR) entitled “Experience of complainants of adult sexual offences in the District Court of NSW: A Trial Transcript Analysis”:

(a) false and outdated rape myths and stereotypes and purported attributes of “real rape” are regularly relied upon by both the prosecution and defence, actively harming victims in New South Wales courts in cross-examination, questioning, submissions and the use of jury directions, and is exposing complainants to distressing and caustic court hearings,

(b) despite procedural statutory reforms being introduced in the 1980s in New South Wales to improve complainant experience in sexual assault trials, the substantive conduct of many trials today is still perpetuating a disproportionate focus on the conduct of the complainant such as whether they had verbally consented, instead of paying attention to the accused’s behaviours,

(c) recurring examples of this conduct include:

(i) questioning and closing submissions that accuse the complainant of fabrication and lying for an ulterior purpose, with 82 per cent of complainants cross-examined about lying and 52 per cent cross-examined about making false reports based on ulterior motives,

(ii) complainants who were intoxicated at the time of the offences faced disproportionate scrutiny, including suggestions of “drunken consent” and unreliability based on impaired recall, with 57 per cent of complainants cross-examined about behaving in a sexually provocative manner and 59 per cent crossexamined about drinking on the day of the offence,

(iii) some instances of rules on the admissibility of sexual experience evidence not being followed,

(iv) defence counsel being afforded wide latitude to question the complainant on prior flirtatious behaviour and aspects of the complainant’s past, with 42 per cent of complainants being cross-examined about the way they were dressed, and 43 per cent about why they were in the location where the offence occurred,

(d) only 16 per cent of victims contact police after experiencing sexual assault, largely due to an awareness of unfair and traumatising complainant treatment in courts,

(e) the court does not allow complainants to give evidence in narrative form, a finding that the 1996 Heroines of Fortitude report highlighted, that greater use of the narrative form option be promoted for victims to feel comfortable telling evidence in their voice, is recommended,

(f) only limited evidence indicates that the practice of sexual offence trials has been improved by statutory reform,

(g) change is required to address entrenched trial practices and narratives that are out of step with the intention of the statutory reforms that began in the 1980s, and

(h) only a modest statutory review was completed in 2013 after the third wave of major reform to the Crimes Act 1900 (NSW) relating to expanding the definition of consent, and there has not been another significant evaluation since the 1996 Heroines of Fortitude report.

(2) That this House calls on the NSW Attorney General to urgently conduct a comprehensive review of the statutory reforms that began in the 1980s, and to order an evaluation of the practices of New South Wales criminal trials in adult sexual offences based on initial court transcript analysis in the District Court of NSW by BOCSAR. 

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