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Abstract
In a study of 40 adult rape jury trials, aimed at identifying how and why the questioning process in rape trials results in re-traumatisation, researchers noticed how often adult women complainants gave evidence of clearly expressed lack of consent – through words or conduct or a combination of both. In 26 cases the complainant also gave evidence of multiple attempts to negotiate the desired limits of sexual intimacy. Her evidence was challenged in cross-examination and during closing arguments by emphasis on aspects of her conduct argued to be indicative of consent. Clearly articulated absence of consent was not a predictor of convictions, even in the Aotearoa New Zealand Sexual Violence Court Pilot. Only 13 of these 26 cases resulted in a guilty verdict. In this article, I will examine how the narratives about consent in recent adult rape trials illustrate the ongoing significance of feminist critiques of the concept, particularly its efficacy regarding gendered sexual violence, as well as counselling caution about expectations of a reformed definition of consent.
Notes
1 See the Sexual Violence Legislation Bill 2019 and report from the Justice Select Committee Sexual Violence Legislation Bill: As reported from the Justice Committee, 9 June 2020, https://www.parliament.nz/en/pb/sc/reports/document/SCR_98088/sexual-violence-legislation-bill (last accessed 24 June 2021).
2 Affirmative consent is a positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter. Consent therefore should not be inferred from the absence of a ‘no’; a clear ‘yes,’ verbal or otherwise, is necessary.
3 Jan Logie MP, Proactive Release – Improving the justice response to victims of sexual violence (including funding voluntary specialist training for defence counsel), 2 July 2019, 60 https://www.justice.govt.nz/assets/Documents/Publications/7236-Proactive-release-SV-response-final.pdf (last accessed 24 June 2021).
4 Drawing on the desirability of an affirmative definition of consent, a communicative model further requires actual communication of that consent, and that an absence of communication is sufficient to establish lack of consent. ‘[A] communicative model would allow for recognition of consent as an attitudinal state, but one that requires some communication of that mental state via physical or verbal cues appropriate to the particular relationship and circumstance’: Sarah Croskery-Hewitt, ‘Rethinking Sexual Consent: Voluntary Intoxication and Affirmative Consent to Sex’ (2015) 26(3) New Zealand Universities Law Review 614 at 631.
5 Croskery-Hewitt above note 4 at 641.
6 Rosa Gavey, ‘Affirmative Consent to Sex: Is it Enough?’ (2019) 3 New Zealand Women’s Law Journal Te Ano Kawe Kaupapa Ture a Ngā Wāhine 35 at 47.
7 See, for example, Carole Pateman, The Sexual Contract (Polity Press 1988); Lois Pineau, ‘Date Rape: A Feminist Analysis’ (1989) 8(2) Law and Philosophy 217; Catharine MacKinnon, ‘Rape: On Coercion and Consent’ in Kate Conboy, Nadia Medina and Sarah Stanbury (eds) Writing on the Body: Female Embodiment and Feminist Theory (Columbia University Press 1997) 42; Rosemary Hunter and Sharon Cowan (eds) Choice and Consent: Feminist Engagements with Law and Subjectivity (Routledge-Cavindish 2007).
8 Jesse Wall, ‘Justifying and Excusing Sex’ (2019) 13(2) Criminal Law and Philosophy 283 at 306.
9 Section 128A of the Crimes Act 1961 (NZ) (set out at below note 30).
10 Law and Order Select Committee Report, Crimes Amendment Bill (No 2) 2005 at 9.
11 Question trails: Sex offences (Ngā Kōti o Aotearoa Courts of New Zealand), https://www.courtsofnz.govt.nz/for-lawyers/question-trails/sex-offences/sexual-violation-by-unlawful-sexual-connection-section-128-crimes-act-1961/ (last accessed 5 May 2021).
12 See below note 30.
13 R v Adams CA 70/05, 5 September 2005 at [48] (NZ) (emphasis added). See also Henry v R [2019] NZCA 266 at [26] and Hazelwood v R [2019] NZCA 484 at [27].
14 Gerald Orchard, ‘Sexual Violation: The Rape Law Reform Legislation’ (1986) 12 New Zealand Universities Law Review 97 at 102.
15 The relevant part of s 128 provides (see also the definition of ‘penis’ and ‘genitalia’ in s 2):
Sexual violation is the act of a person who—
rapes another person; or
has unlawful sexual connection with another person.
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis,—
without person B’s consent to the connection; and
without believing on reasonable grounds that person B consents to the connection.
16 Elisabeth McDonald, ‘Gender Neutrality and the Definition of Rape: Challenging the Law’s Response to Sexual Violence and Non-Normative Bodies’ (2019) 45(2) University of Western Australia Law Review 166 at 182.
17 The particular focus of the research was on the charge of sexual violation by rape. There were no indications in the material in the court file that any of the complainants or defendants were other than cis-gender.
18 For a similar argument in the Australian context see Rachael Burgin and Asher Flynn, ‘Women’s behavior as implied consent: Male “reasonableness” in Australian rape law’ (2019) 21(3) Criminology & Criminal Justice 334. https://doi.org/10.1177/1748895819880953
19 Joanne Conaghan, ‘The Essence of Rape’ (2019) 39 Oxford Journal of Legal Studies 151 at 180.
20 See, for example, Lise Gotell, ‘Rethinking Affirmative Consent in Canadian Sexual Assault Law: Neoliberal Sexual Subjects and Risky Women’ (2008) 41 Akron Law Review 865; Rachael Burgin, ‘Persistent Narratives of Force and Resistance: Affirmative Consent as Law Reform’ (2019) 59 British Journal of Criminology 39(1) 296.
21 Elisabeth McDonald and Rachel Souness, ‘From “real rape” to real justice in New Zealand Aotearoa: The reform project’ in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press 2011) at 31; Elisabeth McDonald, ‘From “Real Rape” To Real Justice? Reflections on the Efficacy of More Than 35 Years of Feminism, Activism and Law Reform’ (2014) 45(3) Victoria University of Wellington Law Review 487.
22 Julia Quilter, ‘Re-Framing the Rape Trial: Insights from Critical Theory about the Limitations of Legislative Reform’ (2011) 35(1) Australian Feminist Law Journal 23; Clare McGlynn, ‘Feminist Activism and Rape Law Reform in England and Wales: A Sisyphean Struggle?’ in Clare McGlynn and Vanessa E Munro (eds) Rethinking Rape Law: International and Comparative Perspectives (Routledge 2010) at 139; Jessica Kennedy and Patricia Easteal, ‘Shades of Grey: Indeterminacy and Sexual Assault Law Reform’ (2011) 13(2) Flinders Law Journal 49; Wendy Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law’ (2011) 19(1) Feminist Legal Studies 27; Sharon Cowan, ‘Sense and Sensibilities: A Feminist Critique of Legal Interventions against Sexual Violence’ (2019) 23(1) Edinburgh Law Review 22; Elaine Craig, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (McGill-Queen’s University Press 2018).
23 Joan Stone, Rosemary Barrington and Colin Bevan, ‘The Victim Survey’ in Institute of Criminology Rape Study Volume 2: Research Reports (Department of Justice 1983) at 52 and 55.
24 Tania Boyer, Sue Allison and Helen Creagh, Improving the Justice Response to Victims of Sexual Violence: Victims’ Experiences (Gravitas Research and Strategy Limited/Ministry of Justice 2018) at 20.
25 New Zealand Law Commission, The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (NZLC R136, 2015).
26 See, for example, Venezia Kingi and Jan Jordan, Responding to Sexual Violence: Pathways to Recovery (Ministry of Women’s Affairs, Wellington 2009); McDonald and Tinsley above note 21; New Zealand Law Commission, Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character (NZLC R103, 2008); Taskforce for Action on Sexual Violence, Te Toiora Mata Tauherenga – Report of the Taskforce for Action on Sexual Violence, Incorporating the Views of Te Ohaakii a Hine – National Network of Ending Sexual Violence Together (Ministry of Justice 2009).
27 See further Elisabeth McDonald, Rape Myths as Barriers to Fair Trial Process: Comparing Adult Rape Trials with Those in the Aotearoa Sexual Violence Court Pilot (Canterbury University Press 2020) 16.
28 Chief District Court Judge Jan-Marie Doogue ‘District Courts to Pilot Sexual Violence Court’ (Media Release, 20 October 2016) and https://www.districtcourts.govt.nz/reports-publications-and-statistics/publications/sexual-violence-pilot-court/ (last accessed 24 June 2021).
29 Funding for researcher support for this comparator work was provided by the New Zealand Law Foundation.
30 128A Allowing sexual activity does not amount to consent in some circumstances
A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
A person does not consent to sexual activity if he or she allows the activity because of–
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some other person; or
(c) the fear of the application of force to him or her or some other person.
A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
This section does not limit the circumstances in which a person does not consent to sexual activity.
For the purposes of this section, – allows includes acquiesces in, submits to, participates in, and undertakes sexual activity, in relation to a person, means–
(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person.
31 Louise du Toit ‘The Conditions of Consent’ in Rosemary Hunter and Sharon Cowan (eds) Choice and Consent: Feminist Engagements with Law and Subjectivity (Routledge-Cavindish 2007) 58 at 62.
32 See, for example, the discussion of the legislative history of s 128A in Paulette Benton-Greig’s reimagining of R v S in Elisabeth McDonald and others (eds) Feminist Judgments of Aotearoa New Zealand: Te Rino, A Two-Stranded Rope (Hart Publishing, 2017) at 425–455.
33 Simon France (ed) Adams on Criminal Law – Offences and Defences (online edition) at [CA128.05] (last accessed 24 June 2021).
34 This includes a case in the principal research in which the defendant was also charged with kidnapping and the main focus of the cross-examination on that charge (propensity evidence of the defendant’s previous convictions for rape was admitted: Jacobs). As the complainant’s evidence in chief was by way of evidential video interview (EVI), there is no information about whether/how she voiced non-consent during her evidence, but in closing the Crown refers to the complainant’s evidence that she had tried to push the defendant off her.
35 In the absence of information from the EVIs (pre-recorded evidential interview, played as part of the complainant’s evidence in chief) in six cases, it is not certain exactly what evidence the complainant gave about communicating lack of consent. However, in five of these cases the prosecutor said in closing that the complainant’s evidence was that she had woken up to the defendant (in all cases, not a current or previous boyfriend) having sex with her. In the other case (Simon), the prosecutor made the argument that the complainant was too intoxicated at the time to be capable of consenting.
36 This number included four cases in which the complainant gave evidence of saying ‘no’ after being woken up or coming around to find the defendant raping her.
37 Note that the names of the complainant, witnesses, counsel and the judge were also anonymised, as well as any identifying features of the facts, such as places or particular events.
38 In this set of 13 cases, four complainants had not been drinking (in Carter, Kingsford, Elliot, Perez); nine had been drinking while socialising, but of those nine only two were so intoxicated they had gone to bed/been put to bed by friends (in Schuette and Redman); and two complainants had gone to bed and said they were asleep when the alleged offending began (in Masters and Elliot).
39 The concept of ‘real rape’ is usually attributed to Susan Estrich from her article ‘Rape’ (1986) 95(6) Yale Law Journal 1087 and the subsequent book: Real Rape: How the Legal System Victimises Women Who Say No (Harvard University Press, 1987). ‘Real rape’ is argued to be the type of rape which has traditionally been more effectively responded to by the criminal justice system – the script of which involves a stranger, an outside setting, injuries, threats, struggles and an immediate ‘hue and cry’ from the alleged victim. See further Louise Ellison and Vanessa E Munro, ‘Of “Normal Sex” and “Real Rape”: Exploring the Use of Socio-Sexual Scripts in (Mock) Jury Deliberation’ (2009) 18(3) Social & Legal Studies 291.
40 This figure include one case (Young) in which the jury was unable to reach a verdict.
41 Lise Gotell above note 20 at 875.
42 See Ellison and Munro above note 39 at 293.
43 Access to information about jury deliberations is rarely granted to researchers, and closely guarded by the judiciary. Some legislative controls also in place – see, for example, s 76 of the Evidence Act 2006 (NZ).
44 McDonald above note 27 at 171–175.
45 McDonald above note 27 at 188.
46 Similar arguments about the relevance of the complainant’s flirting earlier in the night to the defendant’s reasonable belief in consent were made in Schuette and Smythe. In Perez the defence equated consent to sex with willingness to sit on the defendant’s lap:
She conceded that she may have actually sat on his lap. She said that could have happened. You may think that that particular kind of conduct is entirely consensual or suggestive of someone who is there willing and willingly engaging in some kind of contact.
She talked about her underwear and I mention that because if she was closing it down why didn’t she just say it is none of your business and say something else. Who says what colour underwear they are wearing if they are not intending to go a lot further? I suggest to you that that is good for consent and also good for reasonable belief in consent.
47 Other research establishes that intoxication is a factor in many cases of adult rape when consent is at issue. The fact that a complainant’s level of intoxication can support an inference that she lacked the capacity to consent, while also allowing challenges to be made to her reliability and accuracy, is ‘one of the ways in which evidence of complainant intoxication may be said to be a double-edged sword in sexual assault cases’: see Luke McNamara, Julia Quilter, Kate Seear and Robin Room, ‘Evidence of Intoxication in Australian Criminal Courts: A Complex Variable with Multiple Effects’ (2017) 43(1) Monash University Law Review 148 at 167; or a ‘catch-22’ – ‘the complainant who is not intoxicated enough to be considered incapable of consent, yet too intoxicated to be considered a reliable witness’: see Janine Benedet, ‘Judicial Misconduct in the Sexual Assault Trial’ (2019) 52(1) University of British Columbia Law Review 1 at 53.
48 Lise Gotell comments that the introduction of an affirmative model of consent (appeared to) challenge this ‘version of normative heterosexuality founded on feminine acquiescence to seduction’ (Gotell above note 20 at 868), however she argues that the actual effect of the reform was instead to position women as having to ‘diligently self-polic[e] their behaviors to avoid sexual dangers’ (Gotell above note 20 at 897).
49 In Buchner (a case with similar arguments made about what the complainant’s behaviour really meant) the complainant had agreed the defendant, a friend, could share her bed, but did not want any sexual intimacy with him. When he tried to kiss her, she gave evidence she got out of bed to go to the toilet, in part because she was shocked. Defence counsel submitted in closing:
There’s no suggestion that he dragged her back to the bed and threw her onto the bed to have his evil way with her is it? She says she got out and then she decided of her volition to get back to the bed. So why is she doing that if he’s given a message to her that he’s starting to get romantic?
50 Currently sexual experience of the complainant with the defendant is not covered by the specific rule governing the admission of sexual history evidence: s 44 of the Evidence Act 2006 (NZ), although reform to this provision is contained in the Sexual Violence Legislation Bill 2019 (NZ) – see above note 1.
51 The larger research project was focussed on the dynamics of the trial process rather than the outcome: see McDonald above note 27 at 5.
52 See also Vanessa E Munro, ‘Constructing Consent: Legislating Freedom and Legitimating Constraint in the Expression of Sexual Autonomy’ (2008) 41(4) Akron Law Review 935 at 952.
53 See for example Melanie Randall, ‘Sexual Assault Law, Credibility, and “Ideal Victims”: Consent, Resistance and Victim Blaming’ (2010) 22(2) Canadian Journal of Women and the Law 397 at 398.
54 Croskery-Hewitt above note 4 at 632.
55 Munro above note 52 at 938.
56 Pineau above note 7 at 239.
57 Croskery-Hewitt above note 4 at 632. In the 13 cases, seven defendants testified. This was the same proportion in the 13 cases that resulted in a conviction for rape.
58 McDonald above note 27 at 255 ff.
59 Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton University Press 1995) at 163.
60 Robin West, ‘Consent, Legitimation, and Dysphoria’ (2020) 83(1) The Modern Law Review 1 at 24.
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