In the courtroom, rape myths live on. Here are the top three
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.