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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 15 April 2015
"REAL RAPE" IN NEW ZEALAND: WOMEN COMPLAINANTS' EXPERIENCE OF THE COURT PROCESS
Elisabeth McDonald*
I. INTRODUCTION
The main criterion for determining the success or failure of
reforms
should be the impact of the changes made on the lives of the
women
involved.'
The study this article discusses was premised on what has been called the "radical position" 2 of taking women seriously. We asked women about their experience of the criminal justice system as women who believe they have been raped.3 This paper will outline some of their experiences of going to court.4 These stories are placed in the context of the last decade of debate about rape law reform, both in New Zealand and overseas. The preliminary question this study, and this paper, poses is "have the reforms following the
* Senior Lecturer in Law, Victoria University, currently on secondment to the Law Commission as Research and Policy Manager, Evidence Project. This paper presents some of the findings of a research project undertaken during 1993-1996, together with Jan Jordan of the Institute of Criminology, Victoria University and funded by the Foundation for Research, Science and Technology. Our sincere thanks to the women participants in this study who so generously gave their time and energy. We are also very grateful for help from the employees of Rape Crisis, HELP, Safeline Trust, and the police who encouraged and supported women who participated in this research.
Believing women represents a radical step forward because the world generally, and the law specifically, regards women as less worthy of belief than men for the sole reason that they are women.
1983 Rape Study improved the well-being of women?" This is a valid enquiry in light of the objective of the 1983 study, called for by the Minister of Justice:5
To determine whether the law and/or the criminal justice system should be modified to accommodate the special problems encountered by the victim of rape, and if so, how.
The perspective of the victim will therefore be the point of reference for an analysis of any legal procedural changes that are deemed necessary to mitigate the ordeal to which rape victims are subjected.
This study does not analyse the effect of the 1985 reforms in terms of increased numbers of complaints or rate of convictions. Instead, this study was aimed at analysing the effect of the reforms by asking women complainants about the impact the changes have made on their lives.
By the conclusion of the study, however, it was apparent that the important distinction (in terms of experience of the court process) is not the distinction between women who gave evidence in court and those who did not. The distinction that made a difference was that between women who were raped by a stranger and women who were raped by an acquaintance. Although all the women found participating in the court process distressing and unpleasant to some degree, the women complainants who were most dissatisfied and traumatised were those who were allegedly raped by someone they knew. It is this dichotomy that was not adequately addressed by the 1985 rape law reforms and raises again the need for on-going substantive as well as procedural reform.
In this article, which considers some of the results of the study, I begin by outlining the research methodology, identifying the personal qualities of the women we interviewed and discussing offender information and case outcome. The next part of the paper, the findings, reports on the women's responses to questions about the trial process. The final section discusses the women's suggestions for change and recommends tasks for rape law reform in light of these suggestions.
5 Warren Young, Rape Study: Volume /: A Discussion of Law and Practice (Department of
Justice, Wellington, 1983) 163.
II. STUDY METHODOLOGY
The original study methodology for analysis of the court process was designed to enable a comparison between:
(1) the experiences of women whose cases never went to court (for example, where the accused pleaded guilty prior to the preliminary hearing, or where no prosecution was brought);
(2) the experiences of women whose cases went to court, but who did not give evidence (where the accused pleaded guilty after the preliminary hearing, or there was no case to answer); and
(1) the experiences of women whose cases proceeded to a full defended hearing where the woman gave evidence in court and was cross-examined on that evidence.
It was initially planned to interview all women complaining to the police and/or going to court in the greater Wellington area within an 18-month period, with a goal of 10 interviews for each of the three categories. This plan was approved as an appropriate methodology by the funding agency and the then Department of Justice to reduce the possibility of interviewing a mainly self-selected group of complainants (for example, an over-representation of women who were dissatisfied with their experience).
However, we encountered difficulties with this plan. Due to confidentiality requirements, we were not able to make the initial contact with the women directly. Information about the research was given to the women by a support agency (including Rape Crisis, HELP, the Safeline Trust in Auckland) or the police. The women then either contacted us themselves, or gave permission to one of the agencies to pass on their contact details. It became apparent early on in the project that women whose cases were due to be heard in court during the months of the study were not easy to contact, nor very willing to participate in the project. Some were not willing to talk about their experience until after the trial, and then many wanted to forget the experience and not participate in the project.6 By way of contrast, women who were willing to talk to us included those who had returned to counselling many months after the trial, and now felt ready to reflect on their experience.
As a result of the difficulties in interviewing the appropriate number of women during the time frame of the study (as laid down by the funding agency) we
6 This information was given to us by the police or support agencies and may not accurately
reflect the women's reasons.
extended the time frame of the research (to include older cases), and interviewed women in other cities.
Although we still sought at least 10 cases in each category, we fell short of this number in the first 2 categories (with only 2 interviews in the first category and 5 in the second). However, recent overseas and local research and observation confirms that giving evidence is "the most humiliating and degrading" aspect of the court process.? In the words of Justice Thomas:8
The extreme distress of a complainant giving evidence in a rape case and reliving the trauma of the ordeal in the witness box, can be seen in the Courtroom at any time. It is not an uncommon occurrence, and it is done in the name of justice. But there can be no justice in a practice which brutalises the victim of a crime in a way which is repugnant to all civilised persons. It is inexplicable that the practice can be tolerated with such equanimity.
The most important comparison was therefore between the experience of those women who were not required to give evidence in an indictable proceeding (before a jury), and those who were. We interviewed 19 women in our final category, where the case proceeded to a defended hearing, usually involving a jury trial .9 The relatively high number in this category may well reflect the desire of women who have been to trial to talk about their experience in the hope of encouraging change in the criminal justice system.1°
III. PERSONAL CHARACTERISTICS OF THE WOMEN INTERVIEWED11
Location
With the exception of one overseas visitor who was raped on holiday here, and returned for the trial, all the women interviewed for this part of the study were living in Auckland (eight women), the Wellington region (including Lower Hutt, Upper Hutt, Porirua, Masterton) (11 women), or Christchurch
10 See also Sue Lees, Carnal Knowledge: Rape on Trial (1996) 30.
Unless otherwise stated, this information was given by the women as correct at the time
of the interview.
(five women) at the time of the interview. Not all of the women went to court or were assaulted in the city in which they resided at the time of the interview. However, as the interviews did not focus on the details of the incident, it is unclear how many cases are in this category.
Age
Three of the women interviewed were between 16 and 19 years of age.12 Nine women were aged 20-29. Three women interviewed were aged 30-39. Six women were aged 40-49, two were aged 50-59 and one woman was over 60 years old.
Relationship status
Nine of the women interviewed were in relationships (including de facto relationships) at the time of the interview. Seven of the women were single and eight were divorced, separated or widowed. Therefore, 15 out of the 24 women interviewed were not in an intimate relationship at the time of the interview. No women identified as lesbian or bisexual.
Living situation
Two women were living with their parents at the time of the interview and four were living with a partner. Three women were living with a partner and children, and six were living with their child or children. Three of the women were sharing a house with friends or flatmates and six women lived alone.
Ethnic identity
All but one of the women interviewed for this part of the study identified as Pakeha/European. One woman was from South America. No women identified as Maori in this part of the study. Although we used Maori researchers to conduct the interviews in the Auckland area and made contact with Maori women's support networks, we were not able to speak to any Maori women who had been to court. The experiences of Maori women, whose involvement in the criminal justice system will also be affected by racism,13 are therefore not reflected in this study. Such work is clearly overdue and should be carried out by Maori researchers and funded accordingly.
12 One participant was one month short of her 16th birthday at the time of the offence, and
her trial experience was in the Youth Court. This is made apparent, where relevant to the study.
13 See Stephanie Milroy "Maori Women and Domestic Violence: The Methodology of Research and the Maori Perspective" (1996) 4 Waikato LR 58, 74.
Occupation
The women interviewed were employed in a wide range of occupations, including students, health and business professionals, those in the arts or entertainment industry and full-time mothers. There were no more than two women from each occupational group. The most significant finding in this context was that the two women on unemployment benefits had become sickness beneficiaries as a result of the rape.
IV. OFFENCE AND OH-ENDER INFORMATION Date of offence
The earliest alleged offence in this part of the study occurred in July 1982,14 the latest in December 1994. There were six incidents in 1991; six in 1992; eight in 1993 and five in 1994. By months, this sample reflects fewer incidents in the winter months (only three occurring from June to September inclusive), with 13 incidents in the period October to January and 10 occurring between February and May.
Relationship with the accused (if known to complainant)
All of the alleged offenders were male. Only six of the 25 accused (two offenders in one case) were unknown to the woman prior to the alleged offence.I5 Of the 19 who were known to the woman, three were former partners, two were family members, one was a counsellor, one was a doctor, one was a prison inmate, two were employed by the women,16 and nine were social acquaintances. This last category includes men met at social gatherings, someone known by a friend of the woman, and men known through work or sports clubs. The prior relationship between the offender and the complainant will be discussed in more detail below.
15 See supra n 10 at 11:
Most of the women [in her study] were raped by men they knew. Of these, more than half were friends, colleagues or casual acquaintances - men with whom they had never had consensual sex. Most assaults appear to have been carefully planned. Men approached the women in a variety of situations, but most commonly in the social setting of a pub, club or party.
16 The two employees were a tradesman and a real estate agent.
Result
Treating the outcomes as related to 26 separate offences (one woman made two complaints against the same man), the results for this part of the study were 16 convictions" and ten acquittals.18 Of those convicted, 11 had been found guilty at trial (including one who pleaded guilty during the trial, but after the complainants had testified), three had pleaded guilty post-depositions and two pleaded guilty prior to depositions. Of those acquitted, eight had been found not guilty at trial and in two cases the case did not proceed beyond depositions.
Sentence imposed
The breakdown of sentences for the 14 convictions for rape/sexual violation are as follows:19 in one case a sentence of imprisonment for one year was imposed; one offender was sentenced to two years imprisonment; six convictions attracted custodial sentences of between six and one-half and eight and one-half years; in four cases custodial sentences of between 10 and 12 years were imposed; and in two cases the defendant was sentenced to preventive detention.20
20 An offender can be sentenced to preventive detention (with no fixed release date) when the type of crime or nature of re-offending warrant it. See Criminal Justice Act 1985, ss 75 - 77. In one of these cases preventive detention was ordered on appeal from an eight and one-half year sentence.
Relationship between result, sentence imposed and knowledge of offender
In the 13 cases of "stranger rape", the offender was convicted and received a sentence of between six and one-half and 12 years, with two receiving preventive detention. Stranger rape includes the rape of a woman who knows the offender but has not been in an intimate relationship with him, where there are aggravating elements in the nature of the offence. For example, the rape of a prison officer by an inmate and the rape of a woman in her home by a workman are included in this category.
In comparison, the nine offenders who were acquitted of rape were either social acquaintances,' ex-lovers, or family members of the women.22 In the two cases in which the defendant was convicted of "acquaintance rape" (one by jury, one after a guilty plea) they received the significantly lighter sentences of one year and two years. For this purpose, acquaintance rape is the rape of a woman by a man whom she knows, with whom she may or may not have had an intimate relationship, where the alleged rape occurred in the context of a social event and the defendant relied on the defence of consent or reasonable belief in consent.23
The relationship between outcome and offender was also significant to the experiences of the women as rape complainants. This is discussed in the context of the findings, and in the conclusion.
V. THE FINDINGS
The women's experiences are presented here qualitatively, providing illustrations of the content of the women's comments. Where possible,24 the women's own words are used, avoiding translation of the narrative of the research participants by the researchers.25
23 See also supra n 10.
24 Not all interviews were recorded due to the lack of working equipment at all centres.
The findings are reported under separate headings which reflect both the focus of the study and the concerns of the women who participated. The article concludes with a discussion of some of the findings and recommendations relating specifically to improving women's experiences of the court processing of rape complaints.
A. Preparation for the court process
I. Adequacy of information about the court process
Aspects which women found particularly distressing were the long wait before trial and the lack of information. Women were generally apprehensive about giving evidence because they did not know what would be expected of them in court. Many women thought that they had performed poorly as a witness [sic] as a result of lack of preparation.26
Most women said that the court process had been explained to them, although the information alone was not enough to prepare them for the trial. In their words:
I thought I was prepared but I realised very soon that nothing prepares a person for that.
However much I psyched myself up, I would never have been ready.
I thought I was prepared but I wasn't - it was awful - like being raped all over again having to tell all those people.
Several women said that they felt prepared only because of their own determination.
The fact that women are not always given full and accurate information about the process and their part in it, is also indicated by the way women talked about their involvement. Some of the women seemed confused about why they went to court and how the outcome related to their role. For example, one woman stated that the defendant pleaded guilty after the depositions hearing, and then a date was set for the trial, but the prosecution decided not to proceed. Another woman gave oral evidence in court. From the woman's description, it appears that this was at depositions, but the woman interviewed did not know whether it was a trial or not.
26 Gerry Chambers and Ann Miller, Prosecuting Sexual Assault (Scottish Central Research
Office, 1986) 91.
Most of the women's concerns about the lack of preparation were connected with the time they spent with the prosecutor before the trial (see below). Women wanted their story to be presented to the court, and some saw their performance in court as essential to their recovery:
I want to believe that I'm prepared. Psychologically he's had the control - today I want to take control, not only for me but for my partner as well. If I didn't do something about it, what's to say that he wouldn't do it to somebody else. He's got to be known for what he did.
One woman who received very good support from both the police officer in charge of her case and the prosecutor pointed out the difference it can make:
The prosecutor and the police officer and I met and the police officer explained how it would be set up, prepared me how to answer things. It built up my confidence, so I was confident.
With the exception of two women who met the prosecutor several days before the trial, and talked through issues with the officer in charge of the case present, most of the women were dissatisfied with their contact with the prosecutor, particularly those whose cases resulted in an acquittal. They felt that the prosecutor had not done his or her job. One complainant who met the prosecutor for 30 minutes six days before the trial was still unhappy, saying that she "didn't feel that [her] lawyer had gone over what he was going to do" and that she "would have liked to have a say in what lawyer [she] got."
It is clear that some women, like this one, did not understand the different role of the prosecuting lawyer, compared to the defence lawyer, which may have led to the dissatisfaction in most cases. It seems that some rape complainants have an expectation that the prosecutor is there to present their case, in the same way that the defence counsel presents the defendant's case. When they only meet the prosecutor briefly on the day of the trial, as happened in nearly all of the cases, they therefore feel let down. The following description of the limited role for the woman in the prosecution is apt, and yet clearly not what most complainants expect: 27
[T]he victim/survivor has very few rights in the criminal trial because she is merely a witness for the prosecution. She has no choice but to testify and submit to cross-examination. She cannot instruct legal counsel,
27 Donna Stuart, "No Real Harm Done: Sexual Assault and the Criminal Justice System" in
Easteal, supra n 7 at 95, 101.
and will have had little, if any, preparation for giving evidence. She will have no knowledge of the defence claims or even of other prosecution evidence. She will have waited, perhaps for several days, until the court attendant finally comes to usher her into the courtroom, past the expectant audience. She will see the accused again, and will have to speak with him watching her. She will probably have been told to leave the court as soon as she has given her testimony. She will go home and continue waiting.
The expressed wishes of the participants in this study to have more contact with the prosecutor and feel adequately prepared as a witness (for example, knowing what questions to expect), are echoed in overseas studies,28 as well as the 1983 Rape Study.29 The analysis of submissions in the Rape Study includes the following:3°
A number of points are made by submissions regarding matters of courtroom procedures and facilities. 12 submissions say that more should be done by the police and/or the prosecution counsel to acquaint the complainant with court procedures. A number recommend that the "prosecutor should meet a rape complainant prior to the trial" and that he [sic] should for example "ensure that she is familiar with the courtroom and the procedures that she will encounter and ... be aware of any particular concerns she has so that he might reassure her.
Feeling that they were not adequately represented during the trial was one of the most common concerns stated by the women in this part of the study. The argument for separate legal counsel for women survivors of rape has been made convincingly in other jurisdictions.31
One woman summed up the feeling for most complainants, including the nature of their investment in the process and the outcome:
I think there should be more contact [with the prosecutor] than just right at the very end. Your life is in their hands and you've been given half an hour with them before you walk into court.
4. Role of support agencies (prior to participation in court process)
With one exception, all the women who contacted a support agency were very happy with the role played by the agency they relied on - in particular the Safeline Trust in Auckland and HELP. Women also reported positive experiences with Rape Crisis, local women's centres (especially Lower Hutt) and Victim Support Services, although these agencies tended to be used less often by the women in this sample. A number of women commented that the agency kept them informed when the police did not, and acted as a buffer between them and the legal system.
B. Experience in court
I. Giving oral evidence: issues of court layout, comfort and who should be present
A number of the victims ... reported that the presence of the accused in the courtroom caused them severe distress and affected their ability to give evidence clearly and accurately. This trauma was exacerbated by the layout of the courtrooms, some of which allowed a direct line of sight from the dock to the witness box.32
Some women raised issues about the waiting areas in the court building they wanted a space that was away from the defendant's friends, family and witnesses. A number of women also spoke about the difficulty of talking about details of the incident in front of strangers: "the most uncomfortable thing is seeing all these eyes on you."
Apart from vividly bringing back painful memories, having to go through the incident in such explicit detail may just prove too much for some women. They may be unfamiliar with some of the sexual terminology involved, and find it inordinately difficult to convey what happened in the intimidating and formal setting of a court:33
I felt uncomfortable and awful about the presence of other people in the court ... I felt it was awful giving evidence because of the things I didn't want to say but had to say ... The police officer said that I would be able to give evidence from behind a screen but I never did. I just reckon he tried to soft soap me.
32 Melanie Heenan and Helen McKelvie "Towards Changing Procedures and Attitudes in Sexual Assault Cases" in Easteal, supra n 7, 361 at 366.
I'd have preferred just me and the lawyers or I was somewhere else ... some of the questions they ask are really upsetting and embarrassing.
What I found so difficult was having to say and I couldn't see why this had to be said. Why, when they have forensic evidence, do they need people to say things so bluntly.
I didn't want anyone else in there, or my family. I just felt really dirty ... I didn't like talking in front of the jury about what happened to me.
A few women were indifferent about the presence of the defendant, most notably in cases where identity was an issue, and they may not have seen him before (for example, it was dark at the time of the incident). For all other women, the presence of the defendant was very disturbing, particularly when he pulled faces or shook his head when the women gave evidence. This made many of them feel frightened, scared or intimidated:
I had to walk past him when I walked out. I didn't like him being there - he was too close. I felt sick. I looked at him because he kept sighing and making noises.
I was very frightened because he was watching me ... It upset me that he was there. I could feel him staring at me. It got to me. It was very unnerving ... I was frightened to see him. I still am today ... I was very nervous. I couldn't speak properly. I cried and started shaking ... I felt as if it was me that was on trial.
One young woman summed up the unfortunate, but probable, result of this kind of confrontation:
I didn't want the defendant there ... seeing him was scary and upsetting. He should not be in the same room; I would have told a lot more but his presence made me sick.
Almost all the women suggested that screens or videotaped evidence would be preferable, or at least available for women who wanted to use these methods.34 One woman thought that with videotaped evidence (recorded before trial) "the jury would see the damage, especially the emotional impact
34 Although sometimes an adult rape complainant has been permitted to give evidence in an
alternative way under the court's inherent jurisdiction (see R v Kaio, unreported, High Court, Auckland, 12 March 1993 (T 259/92)), normally they are required to give evidence at trial in open court. Recently, the Law Commission in its discussion paper The Evidence of Children and Other Vulnerable Witnesses (PP26, 1996) has proposed that all witnesses should be eligible (on application) to give evidence in an alternative way (that is, on closed-circuit television or from behind a screen). See also Bridget Mackintosh, "The Rape Trial: Crown Prosecutor's Perspective" in The Proceedings of Rape: Ten Years' Progress? An Interdisciplinary Conference (Wellington, 1996) 97.
which gets lost with the passage of time." When asked about reform in this area the women said:
The offender shouldn't be there.
I don't think the victim should be in court. It would be nice if you could give evidence from a glass box, where he can't see me but everyone else can. He's to be put out of sight somewhere.
It would be easier to give evidence if offender was in another room where he could hear and see but not in the same room.
I would have preferred not to have been in the same room as him when I gave my statement. I was that tense, I thought I'd snap.
The most uncomfortable thing is seeing all these eyes on you. If I was facing the judge and the questions were coming from behind me, I could cope with that.
For women who couldn't face the defendant again it would be excellent [to be able to give videotaped evidence]. In a way seeing the defendant makes you face up to it - but it depends if you are ready to accept and handle it.
2. The performance of the prosecutor
Women felt particularly let down by the prosecution who could in their view have acted in a more robust way to provide protection from character attacks.35
As mentioned above, many women were disappointed in the performance of the prosecutor. Many women felt that he or she made no effort to get to know them, or their evidence, or even to meet them before the day of the trial. This made them feel unrepresented (which, in the legal sense, they are), and unimportant:
I was really frustrated [that I didn't meet the prosecutor before the trial] because I didn't know what the defence was going to ask.
I should have been able to meet my lawyer more often and have him tell me what he was going to do and what the other lawyer was going to do. Mum and Dad didn't meet the lawyer till the day of court. I would have liked to have a say in what lawyer I got. He treated me courteously, but that was it. He didn't do a very good job at all.
He was all right. I hadn't dealt with him before. I didn't even meet him
35 Supra n 26 at 136.
until the day I was in court... I walked into court. He said "Hi. You sit here." It's like don't I get a say in this, don't I get to meet these people?
He seemed indifferent. I don't feel he did a good enough job.
Some women, notably those who felt their case had been successfully resolved, felt that the prosecutor had done well, had treated them with respect and had kept the defendant's lawyer "within the rules." It is perhaps unfortunate that this kind of response is the minority view, when a complainant could easily be put at ease and feel valued by more contact and a sense that her story is being presented.
3. The impact of the judge
There were very few negative comments about the trial judges' behaviour. One woman was disappointed that her support person was not allowed to sit next to her when she gave evidence, and another felt that the judge must have been deaf because he kept asking her to repeat things. "They need someone younger, or at least someone with a hearing aid." One woman was upset by the judge's summing up which she felt laid some of the blame with her because of her profession (which she did not want disclosed, in keeping with the law).36
Most women felt the judge was fair and impartial, and many went on to say how pleased they were with the judge in their case. However, it needs to be pointed out that almost all of the women interviewed left the court after they gave evidence so did not hear the judge instruct the jury. It may also be that many of the complainants did not understand the role of the judge in controlling the court room environment and made no connection between the inappropriate questioning of defence counsel, and the silence of the judge and the prosecutor.37
The importance of [the judge's role as the controller of court proceedings] cannot be over-emphasised, because it is the judge who determines the appropriateness of particular lines of cross-examination and rules on questions of inadmissibility... [Rape myths] could not be perpetuated in the legal system without judicial complicity.
Clearly some women understood the judge's role, as they commented that the judge had ruled some of the questions irrelevant. Most of the comments made, however, focused on the performance of the judge while the woman gave evidence:"
The judge was really nice. He was really good because I could talk to him and because he let me say what I wanted to, to the defence lawyer. He was really considerate and stopped court a couple of times to let Mum cuddle me and get a drink of water.
I thought he was nice and very compassionate. He seemed to understand what I was going through and he asked me a couple of times if I wanted to take a break.
I felt better when I just looked at the judge because he reminded me of Paul Holmes.
He seemed sympathetic and heard what I was saying.
He was really good. He let me stop and get myself together. He asked me if I was alright.
4. Cross-examination and defence counsel
[The] victims' ... ordeal in court ... result[s] mainly from their experience of cross-examination.39
[H]er story becomes the subject of stringent testing, not the least in cross-examination. It is her behaviour and character, rather than those of her attacker, that becomes the focus of minute examination.4°
Most women were anxious about going to court and the majority afterwards described their experiences as being even worse than expected. This was due in particular, to defence cross-examination which often made the complainer feel that her own character and behaviour was on tria1.41
[M]uch of the complainant's credit that is tested in a sexual assault trial is unrelated to her powers of observation and veracity. Her manner of dress, her perceived reaction to the crime and her lifestyle seem to be unfairly deemed relevant to the determination of the defendant's guilt or innocence. The complainant often has the experience of being forced or
39 Supra n 29 at 65.
4° Supra n 37 at 356.
41 Supra n 26 at 136.
bullied into proving herself innocent.42
These passages demonstrate that the feelings of the women in this part of the study reflect results from many other jurisdictions, as well as the statements made in the 1983 Rape Study. In some cases of stranger rape, where identification was the issue, and the woman had, for example, been attacked in her own bed while asleep, the women found defence counsel tolerable, or "abrupt". However, the vast majority of women reported a much worse experience, especially when the issue was consent, or belief in consent. In such cases, there seems to have been very little control of the kinds of questions that defence counsel is allowed to ask in cross-examination.43
Evidence of the sexual history of the complainant is inadmissible except with the leave of the judge." However many women reported that they were asked questions about their sexual history. In addition, a number of the women were not informed that such evidence was inadmissible.
The overall feeling of the women about the substance of cross-examination and the behaviour of defence counsel is that they are extremely upsetting and inappropriate:
He was a prick - just basically ran me into the ground. Got a guy I used to work with to lie on the stand. Made me out to be sleazy and smutty ...
I felt fine about giving evidence until it came to the cross-examination. [He asked me offensive and insulting questions] "[D]id you take your shirt off in the night-club?" "Do you have sex with everyone who buys you one drink?" "Is it true that you used to leave work without telling anyone and go down the road to sleep with your boyfriend?" I was more pissed off with defence counsel [than the jury] - it was like he was really anti-women... the offender walked because of him.45
He treated me badly - he said things that were never said and I couldn't allow that... I thought it was disgusting what lies that lawyer told in front
42 Heroines of Fortitude, supra n 28 at 149.
43 Supra n 10 at 133-134:
In the trial transcripts I examined I found that the perfectly normal behaviour of young women is presented as evidence that they provoked the man's attack or asked for it. Questions addressed to the women ...included ...whether she was a single mother; whether the man she was living with was the father of her children; the colour of her past and present boyfriends; who looked after her children while she was at work; ...what underwear she had on; whether she wore false eyelashes and red lipstick...
45 The accused was re-arrested and charged with another rape while on bail pending this trial. The jury did not know this. In the later trial he was found guilty and was sentenced to 18 months imprisonment.
of all those people... He said that I told Margie that the offender just "came over me". It made me feel sick. It was disgusting. It was untrue. I have never told anybody else that [besides the police] and I have burnt my statement because I can't stand it in the house.
He was a real arsehole to me ... his lawyer made me feel really small. He asked me if I had made it up because I didn't want my parents to be angry. He [intimated] that I had had quite a few boyfriends. He said: "didn't I go to the party to make my boyfriend jealous?" He asked me questions about my prior sexual experience but I wouldn't answer them. I didn't think it was relevant to the case. [He] asked me questions over and over again - I felt like no-one believed me.
He made me feel like shit. He twisted all my words round and made out that I had been hallucinating, taking drugs. Then when that didn't work he tried to say that it was my father then he said that it was my counsellor that had put it into my head but I didn't start seeing a counsellor until the Tuesday after it happened and my father was away at that time ... His lawyer made me feel as if it was my fault and I didn't know what I was talking about ... I did not comment on the question about my sexual past because it was not relevant. The judge didn't mind because he didn't think it was relevant either.
I was asked how would I know that there was penetration - that would be typical of a man to ask a stupid question like that.
He treated me like I was stupid. He questioned every little thing and made me feel like I was on trial.
It was terrible. He accused me of lying. Put me through the wringer. Implied I was bored in my marriage.
I felt ripped about as a person ... violated again and again by the judicial system.
[Giving evidence] was one of the worst things I have ever done in my life.
5. Role of support agencies in court
Almost without exception, the women commented on the value of having a support person in court with them. Some felt that they did not want their parents or partner to be there because of what they had to say, but in these cases they were supported by a counsellor or other support agency representative. They said:
Even though my counsellor sat behind me and I couldn't see her, the thought of having someone there made it a bit easier ... it was like a security blanket type thing.
The presence of my counsellor gave me strength - I felt like other people really did care.
I felt her presence gave me added strength, that I wasn't going in alone.
I felt that I was believed and felt good because the police officer and counsellor said I had done well.
It is important to note that despite the result, or the response of the police or lawyers, all women, with one exception, who relied on the support agencies, felt supported, cared for, and believed. One woman felt that she needed a different kind of support than that offered, and felt that more information about the various options would be useful.
VI. REFORM RECOMMENDATIONS
Despite similar findings with respect to the trauma caused by cross-examination in the 1983 Rape Study, virtually no reforms to the process of cross-examinations have been implemented. This is the aspect of the court process reported by survivors to be the most humiliating and degrading. Reforms in this area have been slow because they are considered to be tampering with the basis of the adversarial system of law and the rights of the accused.46
It has been cogently argued from a legal perspective that the amendments to evidence laws in rape cases are inadequate, adding nothing to the protection already afforded a witness by existing general rules of evidence, should a court choose to invoke those laws. It is further pointed out that the negative experiences of women alleging rape in the court room stem from deeply embedded attitudes to sexuality and the role of women in sexual relationships, and as such are not amenable to the superficial procedural "tinkering" that has already occurred.47
The women's statements
[There is a] need to treat women with more dignity ... I walked out of that thing [the process] feeling like it was my fault that it happened.
46 Brynes and Kendall, supra n 7 at 64.
47 Liza Newby, "Rape Victims in Court - the Western Australian Example" in Jocelynne Scutt (ed) Rape Law Reform: A Collection of Conference Papers (Australian Institute of Criminology, Canberra, 1980) 115.
More education for people associated with the process [is needed] - the courts and the police - so they understand it more and are more compassionate.
I don't really think that there was much that could have changed my experience. I know women don't get the support I got. They should understand that it's hard. I'd like to see other women dealt with the way that I was. It's not easy - caring and understanding are needed.
[I did] not [receive] enough information - [I needed] more contact with the police or an intermediary.
The judge or your lawyer should object more because the defence are really
nasty to you and they ask some stupid questions.
The victim should get a say
in what type of lawyer she gets. Goals of reform
Eliminating those features of the rape trial that make the woman feel as if she is the defendant and make the whole experience of testifying painful and degrading."
The reforms following the 1983 Rape Study have made a difference to the experience of women testifying in court. Prior to the implementation of these reforms, women were, for instance, required to give testimony in open court, to give oral evidence at depositions and to hear the judge give a warning to the jury that it is unsafe to convict on the uncorroborated evidence of a rape complainant.
It is apparent, however, that many of the women's comments about the trial process, particularly in relation to the performance of the prosecutor and defence counsel, mirror the descriptions of the participants in the 1983 Rape Study. Women almost always still find cross-examination traumatic and intimidating. Women almost always still find they have little or no contact with the prosecutor before the trial and consequently feel that their story of the rape is neither understood nor presented in court."
48 Carole Goldberg-Ambrose, "Unfinished Business in Rape Law Reform" (1992) 48 (1) J of Social Issues 173, 177.
49 Heroines of Fortitude, supra n 28 at 141:
Complainants in this study generally were not able to express their feelings about the sexual assault in court. Their stories were sanitised and confined within the narrow limits defined by the rules of law ...and by the discretionary decisions made by the Judge. The question and answer format for giving evidence did not allow the complainant to tell "her story" and may have led to relevant evidence being omitted or other evidence being given the wrong emphasis.
Women in this study who fared better under cross-examination or who had some time with the prosecutor before the trial tended to be those who were survivors of stranger rape. This finding indicates a continuing dichotomy between stranger rape (or "real rape")5° and acquaintance rape (or "simple rape") with a consequential impact on the perception of the woman in court and the kind of attacks on her character and credibility that seem permissible. This dichotomy operates to make women's culpability for the rape an integral part of the trial, making the trial an extremely unpleasant experience and leading to a "sophisticated discrimination in the distrust of women victims".5I As Rae Kaspiew comments in the Australian context: 52
[T]he real rape/simple rape dichotomy ... is also used by defence counsel as a powerful tool in the construction of their stories. In cases that have "simple" rape story features, where the victim/survivor may have been drinking or knew her attacker ... these features are continually emphasised to evoke the [rape] myths and thus create "reasonable doubt".
Although further changes in the process may be made (for example, more communication with the prosecutor, provision to give evidence in the absence of the defendant) without a fundamental change in societal attitudes towards the crime of rape, women's experience in court, including the outcome, will not be fundamentally different over the next 10 years.
One change within the existing system that may well have a significant effect is a change to the legal definition of rape/sexual violation.53 If there is a different emphasis on the inquiry into consent, women's experience of reporting rape and being believed may be very different. In other words, a starting point of believing women and requiring proof of actual consent (rather than belief in consent) to defend a rape charge, would alter the assessment of culpability. Another option would be the adoption of s 37(a) of the Victorian Crimes Act 1958, which requires the judge to direct the jury that: 54
[T]he fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person's free agreement.
50 Susan Estrich, Real Rape (1987).
51 Ibid, 29.
52 Supra n 37 at 376.
53 Rape/sexual violation is currently defined as penetration of a woman's genitalia by a penis without the woman's consent and without the man having a reasonable belief that she was consenting: Crimes Act 1961, s 128.
This provision attempts to counter the view that women may say no when they really mean yes. This kind of mythology still operates to prevent women being treated as fully autonomous sexual beings.55 Whatever reform options are proposed in the future,56 including alternative methods of dealing with criminal charges, it is essential that views about women, sexuality and sexual violence are informed by reality, not myth.
55 See the recent direction to a jury in a rape case by Justice Morris: "if every man throughout
history had stopped the first time a woman said no, the world would be a much less exciting place." The Dominion, Wellington, 4 July 1996, 1.
56 For proposals in Australia that have significant relevance to the New Zealand situation, see Heroines of Fortitude, supra n 27 at 1 ff. On the issue of the character and credibility of a rape complainant, see Law Commission, Evidence Law: Character and Credibility (PP27, 1997).
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