Rape Victims in Court - The Western Australian Example (From Rape Law Reform, P 115-126, 1980, Jocelynne A Scutt, ed. - See NCJ-74354)

• NCJ Number: 74361
• Author(s): L Newby
• Date Published: 1980
• Length: 12 pages
• Sale Source: Australian Institute of Criminology
• Language: English
• Country: Australia

Annotation

This article examines the court experiences of West Australian rape victims, and argues that the rules of evidence in the Australian States offer inadequate protection to victims and witnesses.

Abstract

The West Australian amendments to the Evidence Act (1977) prohibit introduction of evidence as to the sexual experience or reputation of a complainant, but permit the judge to introduce such evidence if it is of 'substantive relevance to the facts in issue or the credit of the complainant.' A study of 38 trial transcripts as to the type of evidence admitted before and after the enactment of the amendments indicates that the amendments had little influence on the type and content of defense cross-examination. The defense continues to introduce evidence likely to be distressful to victims and witnesses. The particular difficulties experienced by complainants giving evidence in rape trials are attributed to three main factors: the trauma of rape which is relived through the recounting; the naming of sexual activities and parts of the body which our society considers taboo; and the defense's attempt to argue that the victim consented to the sexual act. In constructing a defense case based upon consent, the counsels use one of four major attack strategies: continuing questioning as to the details of the rape, establishing a prior sexual relationship between victim and defendant, undermining the general character or reputation of the victim, and introducing evidence from the victim's sexual history. Significantly, only the latter evidence is restricted by the amendments. The article concludes that typical defense strategies are too complex and subtle to be dealt with through simple procedural amendments. Instead, the following reforms are suggested: a modification of the legal definition of rape, more extensive changes in the procedural rules, and legal reform which might also have an impact on public attitudes. A case study illustrating the evidence problems is appended. Footnotes and 10 reference notes are included. For related articles, see NCJ 74354.