Issues about the Definition of Rape
Shades of grey permeate throughout the definition of rape, particularly with regards to whether rape should be restricted to penile penetration, and also whether the term ‘rape’ should be used at all, or sexual assault. Whilst space does not permit a detailed analysis of the range of different definitions of both ‘rape’ and ‘sexual assault’, it’s important to note around the globe much variation exists.
What ‘rape’ is remains far from settled. With legal systems using the terminology of sexual assault, the law sets down different degrees or grades of severity. The advantages of such an approach are not, however, universally accepted, with some maintaining the term sexual assault as opposed to rape leads to a devaluation of the offence and fails to acknowledge its unique nature.
Myths regarding the credibility of complainants in sexual assault and rape cases have had a significant impact on procedural elements of the trial. Until relatively recently, judges in Australia were required to warn a jury that it was dangerous to convict on the uncorroborated evidence of complainants. Significantly, this requirement was premised upon the contention that rape complainants were especially unreliable as a class of witness.
Reform has now abolished any requirement to warn juries about the dangers of convicting an accused of a sexual offence on the uncorroborated testimony of the victim. However, divergences exist with regards to the extent to which judges may still give a warning. Legislative reform in some Australian jurisdictions provides no direction as to what courts should or should not say.
Some jurisdictions’ provisions state that warnings are not to be given, or not to be given unless justified in the circumstances of the particular case, or that the courts must/shall not suggest that the law regards complainants in sexual assault cases as unreliable. Other jurisdictions retain judicial power to warn or comment about uncorroborated evidence, if appropriate or necessary in the interests of justice – a real mixed bag of laws across jurisdictions.
Were these reformulated laws and directions effective? In practice, two High Court cases certainly diluted the effectiveness of the reforms. In Longman v The Queen (‘Longman’) the High Court unanimously reversed a conviction on the basis that the trial judge had failed to warn it was unsafe to convict on the uncorroborated testimony of the complainant. A year earlier, legislation had been enacted which stated the judge, ‘shall not give a warning unless satisfied that such a warning is justified in all the circumstances.’
Since Longman, judges generally give a ‘Longman warning’ in order to avoid appeals. They either may issue a warning (dangerous to convict on her evidence alone), or a warning that the evidence of the complainant must be scrutinised with great care.
So, despite law reform, judges continue to give corroboration warnings telling jurors it is not safe to convict on the word of the victim alone. And the defendant may end up acquitted. Or, some do not give these prehistoric warnings; the man is convicted and then there have been successful appeals for conviction on the grounds that the judge did not warn the jury about the need to scrutinise the complainant’s evidence or didn’t warn about relying on the victim’s evidence. The defendant is free.
Complex laws such as those concerning recent complaint lead both to directions by the judges and to the perpetuation of misunderstandings about how a ‘reasonable’ rape victim will behave.
One justification for judges needing to warn jurors about rape victims’ credibility has been the victim’s delay in reporting the sexual assault. The majority in the High Court case of Crofts v The Queen held that the reforms were intended only to abolish the rules, which presumed that women as a class of witness were untrustworthy; that they were not intended to create a presumption of reliability for all women who allege rape.
Trial judges in individual cases could continue to warn the jury that in fairness to the accused, complainants who do not report their sexual abuse at the first reasonable opportunity lack credibility as witnesses; the effect of which is to impugn the credibility of alleged victims of rape. Accordingly, recent complaint does continue to be used by defence lawyers.
The reasonable rape victim is usually expected to report the crime as soon as possible in order to be seen as credible. For example, in R v O’Connor, Haesler J stated, ‘AF’s evidence was compelling. It was supported by recent and consistent complaint.’ As survivors of IPSV rape do not generally disclose or report the crime promptly, they (or their credibility) may end up being put on trial. Delayed reporting can lead to the loss or disappearance of evidence and can be used against the victim in court to further discredit her as a witness.
In R v DS  NSWDC 207 , –, although Hatzistergos J stated that he found, ‘the complainant’s recollection of some events was not accurate … in light of the time that has elapsed’, he rejected the accused’s argument that the complainant ought not to be believed due to her failure to report immediately, as ‘absence or delay in complaining does not necessarily indicate that the allegation the offence was committed is false’.
In fact, in many ways, rape and law reform remind me of a treadmill – the illusion that you’re getting somewhere when in fact you’re staying in one place. It is the mission of Legal Light Bulbs to improve the ordeal of rape victims’ experiences with the criminal justice system. We do this through online and face-to face violence against women training, conducting sexual assault research projects, and by offering expert reports for court providing evidence concerning the victim’s reality of consent.