‘Rape myths’ and a ‘reasonable belief’ of consent R v Lazarus [2017] NSWCCA 279

Abstract

Judicial directions in rape trials are designed to emphasise to jury members the importance of negating consent or that the accused believed on reasonable grounds that the complainant consented. After a jury convicted the accused in R v Lazarus [2015], the NSW Court of Appeal in R v Lazarus [2016] NSWCCA 52 found that the trial judge misdirected the jury on the question of the state of mind of the accused at the time of the alleged rape. After a judge sitting without a jury acquitted the accused, the NSW Court of Appeal in R v Lazarus [2017] NSWCCA 279 found that the judge in the re-trial failed to direct herself in relation to making a finding about the steps taken by the accused to establish whether the complainant was consenting. As well as reviewing the reasoning in the decisions, this article discusses rape myths and the justice gap and considers law reform on the issue of consent in rape cases.

Key words:

• consent
• intoxication
• judicial directions
• justice gap
• law reform
• rape myths
• reasonable belief

Ethical standards

Declaration of conflicts of interest

Joseph Briggs has declared no potential conflicts of interest.

Russ Scott has declared no potential conflicts of interest.

The views expressed are the authors’ and are not representative of Legal Aid Queensland or Queensland Health.

Ethical approval

This article does not contain any studies with human participants or animals performed by the authors.

Informed consent

No individual participated in any study.

The facts of the case were reported in detail in the media and continue to be available as open source material.

The facts of the case also appear in the published decisions:

NSW Court of Appeal in R v Lazarus [2016] NSWCCA 52

NSW Court of Appeal in R v Lazarus [2017] NSWCCA 279

Notes

1 Four Corners ABC, ‘I Am That Girl’ (7 May 2018) <http://www.abc.net.au/4corners/i-am-that- girl/9736126> accessed 6 June 2019.

2 P Lopez, ‘He Said … She Said … An Overview of Date Rape from Commission through Prosecution through Verdict’ (1992) 13(2) Crim Justice J 275–302; J Jordan, ‘Beyond Belief? Police, Rape and Women’s Credibility’ (2004) 4(1) Criminal Justice 29–59; L Hackett, A Day and P Mohr, ‘Expectancy Violation and Perceptions of Rape Victim Credibility’ (2008) 13 Legal and Criminological Psychology 323–34; M Randall, ‘Sexual Assault Law, Credibility, and “Ideal Victims”: Consent, Resistance and Victim Blaming’ (2010) 22(2) Canadian Journal of Women and the Law 397–434; N Taylor, ‘Juror Attitudes and Biases in Sexual Assault Cases’ (2007) 344 Trends and Issues in Crime and Criminal Justice, Canberra: Australian Institute of Criminology <https://aic.gov.au/publications/tandi/tandi344> accessed 6 June 2019; S Landström, K Ask and C Sommar, ‘Credibility Judgments in Context: Effects of Emotional Expression, Presentation Mode, and Statement Consistency’ (2018) Psychol Crime Law. DOI: 10.1080/1068316X.2018.1519828

3 R v XHR [2012] NSWCCA 247; Filippou v R (2015) 256 CLR 47; [2015] HCA 29.

4 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; (1984) HCA 48.

5 See Reid v R (1980) AC 343 at [350] per Lord Diplock.

6 Australian Bureau of Statistics Commonwealth of Australia, ‘Recorded Crime – Victims, Australia, 2018’ (28 June 2018) <http://www.abs.gov.au/ausstats/[email protected]/mf/4510.0> accessed 6 June 2019.

7 J Jordan, ‘Worlds Apart? Women, Rape and the Reporting Process’ (2001) 41 Brit J Criminol 679–706; J Fitzgerald, ‘The Attrition of Sexual Offences from the New South Wales Criminal Justice System’ (2006) 92 Crime Justice Bull <https://www.bocsar.nsw.gov.au/Documents/CJB/cjb92.pdf> accessed 6 June 2019.

8 K Hohl and EA Stanko, ‘Complaints of Rape and the Criminal Justice System: Fresh Evidence on the Attrition Problem in England and Wales’ (2015) 12(3) Eur J Criminol 324–41; KA Parratt and A Pina, ‘From “Real Rape” to Real Justice: A Systematic Review of Police Officers’ Rape Myth Beliefs’ (2017) 34 Aggression Violent Behav 68–83.

9 K Ask, ‘A Survey of Police Officers’ and Prosecutors’ Beliefs about Crime Victim Behaviors’ (2010) 25 J Interpers Violence 1132–49; see also P Rumney, ‘False Allegations of Rape’ (2006) 65(1) Camb Law J 128–58; KM Edwards and others, ‘Rape Myths: History, Individual and Institutional Level Presence, and Implications for Change’ (2011) 65 Sex Roles 761–73; E Sleath and R Bull, ‘Police Perceptions of Rape Victims and the Impact on Case Decision Making: A Systematic Review’(2017) 34 Aggression Violent Behav 102–12; Parratt and Pina (n 8) 68–83; J Shaw and others, ‘Beyond Surveys and Scales: How Rape Myths Manifest in Sexual Assault Police Records’ (2017) 7(4) Psychol Violence 602–14; L McMillan, ‘Police Officers’ Perceptions of False Allegations of Rape’ (2018) 27(1) J Gender Stud 9–21.

10 J Temkin, ‘Prosecuting and Defending Rape: Perspectives From the Bar’ (2000) 27(2) J Law Soc 219–48; C Spohn, D Beichner and E Davis-Frenzel, ‘Prosecutorial Justifications for Sexual Assault Case Rejection: Guarding the Gateway to Justice’ (2001) 48 Soc Probl 206–35; SJ Lea, U Lanvers and S Shaw, ‘Attrition in Rape Cases: Developing a Profile and Identifying Relevant Factors’ (2003) 43 Br J Criminol 583–99; J Jehle, ‘Attrition and Convictions Rates of Sexual Offences in Europe: Definitions and Criminal Justice Responses’ (2012) 18 Eur J Crim Pol Res 145–61.

11 D Lievore, ‘Prosecutorial Decisions in Adult Sexual Assault Cases: An Australian Study’ (Australian Government Office of the Status of Women 2004); L Kelly, J Lovett and L Regan, ‘A Gap or a Chasm? Attrition in Reported Rape Cases’ Home Office Research Study 293. (Home Office Research, Development and Statistics Directorate 2005) <https://webarchive.nationalarchives.gov.uk/20100408125722/http://www.homeoffice.gov.uk/rds/pdfs05/hors293.pdf> accessed 6 June 2019; J Brown, ‘We Mind and We Care but Have Things Changed? Assessment of Progress in the Reporting, Investigating and Prosecution of Allegations of Rape’ (2011) 17(3) J Sex Aggression 263–72; K Cook, ‘Rape Investigation and Prosecution: Stuck in the Mud?’ (2011) 17(3) J Sex Aggression 250–62.

12 Fitzgerald (n 7) 1–12; M Heenan and S Murray, Study of Reported Rapes in Victoria 2000–2003 (Office of Women’s Policy July 2006) <http://mams.rmit.edu.au/igzd08ddxtpwz.pdf> accessed 6 June 2019.

13 J Quilter, ‘Re-Framing the Rape Trial: Insights from Critical Theory about the Limitations of Legislative Reform’ (2011) 35 Aust Feminist L J 23–56.

14 K O’Brien, C Jones and V Korabelnikoff, ‘What Caused the Decrease in Sexual Assault Clear-up Rates?’ Contemporary Issues in Crime and Justice, Number 125 (NSW Bureau of Crime Statistics and Research 2008); see also Je Holmes and J Fitzgerald, NSW Bureau of Crime Statistics and Research, Trends in NSW Police Clear Up Rates Issue paper no. 1 <https://www.bocsar.nsw.gov.au/Documents/BB/Report-2017-Trends-in-NSW-Police-clear-up-rates-BB129.pdf> accessed 6 June 2019; Queensland Police Service, Annual Statistical Review 2016–17 <https://www.police.qld.gov.au/corporatedocs/reportsPublications/statisticalReview/Documents/2016-17/AnnualStatisticalReview_2016-17.pdf> accessed 6 June 2019.

15 J Temkin and B Krahe, Sexual Assault and the Justice Gap: A Question of Attitude (Hart Publishing 2008); see also K Busby, ‘Not a Victim Until a Conviction is Entered: Sexual Violence Prosecutions and Legal Truth’ in Elizabeth Comack (ed), Locating Law: Race, Class, Gender, Sexuality Connections (2nd edn, Fernwood Publishing 2006) 258–84; B Krahe and J Temkin, ‘Addressing the Attitude Problem in Rape Trials: Some Proposals and Methodological Considerations’ in MAH Horvath and JM Brown (eds), Rape: Challenging Contemporary Thinking (Willan 2009) 301–21; Brown (n 11) 263–72.

16 BS Fisher and others, ‘Reporting Sexual Victimization to the Police and Others: Results from a National Level Study of College Women’ (2003) 30 Crim Justice Behav 6–38; RB Felson and P Paré, ‘The Reporting of Domestic Violence and Sexual Assault by Non-strangers to the Police’ (2005) 67 J Marriage Fam 597–610; J Jordan, Serial Survivors: Women’s Narratives of Surviving Rape (Federation Press 2008); JM Wheatcroft, GF Wagstaff and A Moran, ‘Revictimizing the Victim? How Rape Victims Experience the UK Legal System’ (2009) 4(3) Vict Offender 265–84; L McMillan and M Thomas, ‘Police Interviews of Rape Victims: Tensions and Contradictions’ in MAH Horvath and J Brown (eds), Rape: Challenging Contemporary Thinking (Willan 2009) 255–80; KG Weiss, ‘Too Ashamed to Report: Deconstructing the Shame of Sexual Victimization’ (2010) 5(3) Feminist Criminol 286–310; M van der Bruggen and AR Grubb, ‘A Review of the Literature Relating to Rape Victim Blaming: An Analysis of the Impact of Observer and Victim Characteristics on Attribution of Blame in Rape Cases’ (2014) 19(5) Aggression Violent Behav 523–31.

17 JM Brown, C Hamilton and D O’Neill, ‘Characteristics Associated with Rape Attrition and the Role Played by Scepticism or Legal Rationality by Investigators and Prosecutors’ (2007) 13 Psychol Crime Law 355–70.

18 D Lisak and others, ‘False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases’ (2010) 16(12) Violence Against Women 1318–34.

19 N Taylor and J Mouzos, Community Attitudes to Violence Against Women Survey 2006: Full Technical Report (Australian Institute of Criminology 2006) <https://aic.gov.au/sites/default/files/publications/rip/downloads/community-attitudes-to-violence-against-women-survey-a-full-technical-report.pdf> accessed 6 June 2019; see also G Weiss, ‘Boys Will be Boys and Other Gendered Accounts: An Exploration of Victim Excuses and Justifications for Unwanted Sexual Contact and Coercion’ (2009) 15 Violence Against Women 819–34; L Ellison and V Munro, ‘Reacting to Rape: Exploring Mock Jurors’ Assessments of Complainant Credibility’ (2009) 49(2) Br J Criminol 202–19; E Suarez and TM Gadalla, ‘Stop Blaming the Victim: A Meta-analysis on Rape Myths’ (2010) 25(11) J Interpers Violence 2010–35.

20 MR Burt, ‘Cultural Myths and Supports for Rape’ (1980) 38 J Personal Soc Psychol 217–30.

21 G Bohner and others, ‘Rape Myth Acceptance: Affective, Behavioural and Cognitive Effects of Beliefs that Blame the Victim and Exonerate the Perpetrator’ in M Horvath and Jennifer Brown (eds), Rape: Challenging Contemporary Thinking (UK William 2009); J Belknap, ‘Rape: Too Hard to Report and Too Easy to Discredit Victims’ (2010) 16(12) Violence Against Women 1335–44.

22 In M Horvath and J Brown (eds), Rape: Challenging Contemporary Thinking (Willan 2009) 99–124; S Dinos and others, ‘A Systematic Review of Juries’ Assessment of Rape Victims: Do Rape Myths Impact on Juror Decision-making?’ (2015) 43 Int J Law Crime Justice 36–49.

23 H Gerger and others, ‘The Acceptance of Modern Myths About Sexual Aggression Scale: Development and Validation in German and English’ (2007) 33 Aggressive Behav 422–40; H McGee and others, ‘Rape and Child Sexual Abuse: What Beliefs Persist About Motives, Perpetrators, and Survivors’ (2011) 26(17) J Interpers Violence 3580–93.

24 S Estrich, Real Rape: How the Legal System Victimizes Women Who Say No (Harvard University Press 1987).

25 CM Sims, NE Noel and SA Maisto, ‘Rape Blame as a Function of Alcohol Presence and Resistance Type’ (2007) 32 Addict Behav 2766–75; E Finch and V Munro, ‘Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants’ (2005) 54 Br J Criminol 25–38; C Gunby, A Carline and C Beynon, ‘Alcohol-Related Rape Cases: Barristers’ Perspectives on the Sexual Offences Act 2003 and its Impact on Practice’ (2010) 74 J Crim Law 579–600; A Grubb and E Turner, ‘Attribution of Blame in Rape Cases: A Review of the Impact of Rape Myth Acceptance, Gender Role Conformity and Substance Use on Victim Blaming’ (2012) 17 Aggression Violent Behav 443–52.

26 J Lovett and M Horvath, ‘Alcohol and Drugs in Rape and Sexual Assault’ in Horvath and J Brown (eds), Rape: Challenging Contemporary Thinking (Willan 2009); see also RA Schuller and A Stewart, ‘Police Responses to Sexual Assault Complaints: The Role of Perpetrator/Complainant Intoxication’ (2000) 24(5) Law Hum Behav 535–51; Finch and Munro, ‘Juror Stereotypes’ (n 25) 25–38; E Finch and VE Munro, ‘The Demon Drink and the Demonized Woman: Socio-sexual Stereotypes and Responsibility Attribution in Rape Trials Involving Intoxicants’ (2007) 16(4) Soc Legal Stud 591–614; AL Girard and CY Senn, ‘Date Rape: The Role of the New “Date Rape Drugs” in Attributions About Date Rape’ (2008) 23 J Interpers Violence 3–20; J Goodman‐Delahunty and K Graham, ‘The Influence of Victim Intoxication and Victim Attire on Police Responses to Sexual Assault’ (2011) 8(1) J Invest Psychol Offender Profiling 22–40; A Grubb and E Turner, ‘Attribution of Blame in Rape Cases: A Review of the Impact of Rape Myth Acceptance, Gender Role Conformity and Substance Use on Victim Blaming’ (2012) 17(5) Aggression Violent Behav 443–52.

27 L Ellison and VE Munro, ‘Turning Mirrors into Windows? Assessing the Impact of (Mock) Juror Education in Rape Trials’ (2009) 49 Br J Criminol 363–83; JM Gray, ‘Rape Myth Beliefs and Prejudiced Decision Guidance: Effects on Decisions of Guilt in a Case of Date Rape’ (2006) 11 Legal Criminol Psychol 75–80; S Wallerstein, ‘“A Drunken Consent is Still Consent”—Or is it? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree’ (2009) 73 J Crim Law 318–44; A Powell and others, ‘Meanings of “Sex” and “Consent”: The Persistence of Rape Myths in Victorian Rape Law’ (2013) 22 Griffith Law Rev 456–80; JM Gray, ‘What Constitutes a “Reasonable Belief” in Consent to Sex? A Thematic Analysis’ (2015) 21(3) J Sex Aggression 337–53; L Ellison and V Munro, ‘Reacting to Rape: Exploring Mock Juror’s Assessments of Complainant Credibility’ (2009) 49(2) Br J Criminol 202–19; C Gunby, A Carline and C Beynon, ‘Regretting it After? Focus Group Perspectives on Alcohol Consumption, Non-consensual Sex and False Allegations of Rape’ (2012) 22 Soc Legal Stud 87–106.

28 B Frese, MA Moya and JL Megías, ‘Social Perception of Rape: How Rape Myth Acceptance Modulates the Influence of Situational Factors’ (2004) 19 J Interpers Violence 143–61; Gray, ‘Rape Myth Beliefs’ (n 27) 75–80; A Grubb and J Harrower, ‘Attribution of Blame in Cases of Rape: An Analysis of Participant Gender, Type of Rape and Perceived Similarity to the Victim’ (2008) 13 Aggression Violent Behav 396–405; A Grubb and J Harrower, ‘Understanding Attribution of Blame in Cases of Rape: An Analysis of Participant Gender, Type of Rape and Perceived Similarity to the Victim’ (2009) 15(1) J Sex Aggression 63–81; Gray, ‘What Constitutes a “Reasonable Belief” in Consent to Sex?’ (n 27) 337–53.

29 N Taylor and JJ Larsen, The Impact of Pre-recorded Video and Closed Circuit Television Testimony by Adult Sexual Assault Complainants on Jury Decision-making: An Experimental Study. Research and Public Policy series no. 68 (Australian Institute of Criminology 2006); see also Finch and Munro, ‘Juror Stereotypes’ (n 25) 25–38; E Finch and V Munro, ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) 26(3) Legal Stud 303–20.

30 See BS Fisher and others, ‘The Influence of Anogenital Injury on Women’s Willingness to Engage with the Criminal Justice Process After Rape’ (2013) 28 Violence Vict 968–83.

31 L Ellison and V Munro, ‘Of “Normal Sex” and “Real Rape”: Exploring the Use of Socio-sexual Scripts in (Mock) Jury Deliberation’ (2009) 18(3) Soc Legal Stud 291–312; L Ellison and VE Munro, ‘A Stranger in the Bushes, or an Elephant in the Room? Critical Reflections Upon Received Rape Myth Wisdom in the Context of a Mock Jury Study’ (2010) 13(4) New Crim Law Rev 781–801; MA Klippenstine and R Schuller, ‘Perceptions of Sexual Assault: Expectancies Regarding the Emotional Response of a Rape Victim Over Time’ (2012) 18 Psychol Crime Law 79–94; KL Pickel and RH Gentry, ‘Mock Jurors’ Expectations Regarding the Psychological Harm Experienced by Rape Victims as a Function of Rape Prototypicality’ (2017) 23(3) Psychol Crime and Law 254–73.

32 AM Buddie and AG Miller, ‘Beyond Rape Myths: A More Complex View of Perceptions of Rape Victims’ (2001) 45 Sex Roles 139–60; DC Carmody and LM Washington, ‘Rape Myth Acceptance Among College Women: The Impact of Race and Prior Victimization’ (2001) 16 J Interpers Violence 424–36; S McMahon, ‘Rape Myth Beliefs and Bystander Attitudes Among Incoming College Students’ (2010) 59 J Am Coll Health 3–11; A Phipps and others, ‘Rape Culture, Lad Culture and Everyday Sexism: Researching, Conceptualizing and Politicizing New Mediations of Gender and Sexual Violence’ (2018) 27(1) J Gender Stud 1–8.

33 KM Chapleau and DL Oswald, ‘Power, Sex, and Rape Myth Acceptance: Testing Two Models of Rape Proclivity’ (2010) 47(1) J Sex Res 66–78; P Chiroro and others, ‘Rape Myth Acceptance and Rape Proclivity: Expected Dominance Versus Expected Arousal as Mediators in Acquaintance-rape Situations’ (2004) 19(4) J Interpers Violence 427–42; LG Johnson and A Beech, ‘Rape Myth Acceptance in Convicted Rapists: A Systematic Review of the Literature’ (2017) 34 Aggression Violent Behav 20–34.

34 R Egan and JC Wilson, ‘Rape Victims’ Attitudes to Rape Myth Acceptance’ (2012) 19(3) Psychiatr Psychol Law 345–57.

35 J Jordan, ‘Here We Go Round the Review-go-round: Rape Investigation and Prosecution—Are Things Getting Worse Not Better?’ (2011) 17(3) J Sex Aggression 234–49; SH Pedersen and LA Stromwall, ‘Victim Blame, Sexism and Just-world Beliefs: A Cross-Cultural Comparison’ (2013) 20(6) Psychiatr Psychol Law 932–41; KG Weiss, ‘Neutralizing Sexual Victimization: A Typology of Victims’ Non-reporting Accounts’ (2011) 15(4) Theor Criminol 445–67.

36 See also R Campbell and others, ‘Preventing the “Second Rape”: Rape Survivors’ Experiences with Community Service Providers’ (2001) 16(12) J Interpers Violence 1239–59; R Campbell, ‘What Really Happened? A Validation Study of Rape Survivors’ Help-seeking Experiences with the Legal and Medical Systems’ (2005) 20 Violence Vict 55–68; J Du Mont, K Miller and D White, ‘Social Workers’ Perspectives on the Victim Impact Statements in Cases of Sexual Assault in Canada’ (2008) 18(3) Women Crim Justice 1–23; Wheatcroft and Wagstaff (n 16); see also The Stern Review, A Report by Baroness Vivien Stern CBE of an Independent Review into How Rape Complaints are Handled by Public Authorities in England and Wales 49–50 (2010) <http://www.equalities.gov.uk/pdf/Stern_Review_of_Rape_Reporting_1FINAL.pdf> accessed 6 June 2019.

37 J Du Mont, K Miller and TL Myhr, ‘The Role of “Real Rape” and “Real Victim” Stereotypes in the Police Reporting Practices of Sexually Assaulted Women’ (2003) 9(4) Violence Against Women 466–86; Association of Chief Police Officers Rape Support Programme, An Assessment of the Viability of the Dedicated Team Approach to Rape Investigation (Process Evolution 2011); MAH Horvath and M Yexley, ‘Developments in Investigative Approaches to Rape: The Investigative Heritage’ in JM Brown and SL Walklate (eds), Handbook on Sexual Violence (Routledge 2011) 114–36; MAH Horvath, S Tong and E Williams, ‘Critical Issues in Rape Investigation: An Overview of Reform in England and Wales’ (2011) 1(2) J Crim Justice Res 1–18; National Association of Services Against Sexual Violence, National Standards of Practice for Services Against Sexual Violence. 2nd Edition, 2015 <http://www.sahealth.sa.gov.au/wps/wcm/connect/5d2180804ae23ff8ab07ff0b65544981/NASASV_Standards_2nd_Edition_2015.pdf?MOD=AJPERES&CACHEID=ROOTWORKSPACE-5d2180804ae23ff8ab07ff0b65544981-lztq7ke> accessed 6 June 2019.

38 See also Y Chen and SE Ullman, ‘Women’s Reporting of Sexual and Physical Assaults to Police in the National Violence Against Women Survey’ (2010) 16(3) Violence Against Women 262–79; KD Kelley and R Campbell, ‘Moving On or Dropping Out: Police Processing of Adult Sexual Assault Cases’ (2013) 23 Women Crim Justice 1–18.

39 CP Smith and JJ Freyd, ‘Dangerous Safe Havens: Institutional Betrayal Exacerbates Sexual Trauma’ (2013) 26(1) J Traum Stress 119–24; Gillian Balfour, J Du Mont and D White, ‘“To This Day She Continues to Struggle with the Terror Imposed upon Her”: Rape Narratives in Victim Impact Statements’ (2018) 28(1) Women Crim Justice 43–62; CM Pinciotti and HK Orcutt, ‘Institutional Betrayal: Who Is Most Vulnerable?’ (2018) J Interpers Violence <https://doi.org/10.1177/0886260518802850>

40 SM Kassim, LN Williams and CL Saunders, ‘Dirty Tricks of Cross-examination: The Influence of Conjectural Evidence on the Jury’ (1990) 14 Law Human Behav 373–84; A Young, ‘The Wasteland of the Law, the Wordless Song of the Rape Victim’ (1998) Melbourne Univ Law Rev 442–65; M Kebbell, S Deprez and G Wagstaff, ‘The Direct and Cross-examination of Complainants and Defendants in Rape Trials: A Quantitative Analysis of Question Type’ (2003) 9(1) Psychol Crime Law 49–59; A Konradi, Taking the Stand: Rape Survivors and the Prosecution of Rapists (Praeger Publishing 2007); R Zajac and P Cannan, ‘Cross-examination of Sexual Assault Complainants: A Developmental Comparison’ (2009) 16 suppl 1 Psychiatr Psychol Law S36–S54.

41 J Temkin, J Gray and J Barrett, ‘Different Functions of Rape Myth Use in Court: Findings From a Trial Observation Study’ (2018) 13(22) Feminist Criminol 205–26; EM Hammond, MA Berry and DN Rodriguez, ‘The Influence of Rape Myth Acceptance, Sexual Attitudes, and Belief in a Just World on Attributions of Responsibility in a Date Rape Scenario’ (2011) 16 Legal Criminol Psychol 242–52; A Flynn and N Henry, ‘Disputing Consent: The Role of Jury Directions in Victoria’ (2012) 24(1) Curr Issues Crim Justice 167–84; see also Gray, ‘What Constitutes a “Reasonable Belief” in Consent to Sex?’ (n 27) 337–53; JM Gray and MAH Horvath, ‘Rape Myths in the Criminal Justice System’ in E Milne and others (eds), Women and the Criminal Justice System: Failing Victims and Offenders? (Palgrave Macmillan 2018) 15–41.

42 K Busby, ‘Discriminatory Uses of Personal Records in Sexual Violence Cases’ (1997) 9 Can J Women Law 148–78; L Gotell, ‘Colonization Through Disclosure: Confidential Records, Sexual Assault Complainants and Canadian Law’ (2001) 10(3) Soc Legal Stud 315–46; L Gotell, ‘When Privacy is Not Enough: Sexual Assault Complainants, Sexual History Evidence and the Disclosure of Personal Records’ (2006) 43(3) Alta Law Rev 743–78; L Gotell, ‘Tracking Decisions on Access to Sexual Assault Complainants’ Confidential Records: The Continued Permeability of Subsections 278.1–278.9 of the Criminal Code’ (2008) 20(1) Can J Women Law 111–54; E McDonald, ‘Resisting Defence Access to Counselling Records in Cases of Sexual Offending: Does the Law Effectively Protect Clinician and Client Rights?’ (2013) 5(2) Sex Abuse Austr N Z 12–20.

43 BA van der Kolk and R Fisler, ‘Dissociation and The Fragmentary Nature of Traumatic Memories: Overview and Exploratory Study’ (1995) 8(4) J Trauma Stress 505–25; S Tromp and others, ‘Are Rape Memories Different? A Comparison of Rape, Other Unpleasant and Pleasant Memories Among Employed Women’ (1995) 4 J Trauma Stress 607–27; NC Feeny, LA Zoellner and EB Foa, ‘Anger, Dissociation, and Post-traumatic Stress Disorder Among Female Assault Victims’(2000) 13(1) J Trauma Stress 89–100; SL Halligan and others, ‘Post-traumatic Stress Disorder Following Assault: The Role of Cognitive Processing, Trauma Memory and Appraisals’ (2003) 71(3) J Consult Clin Psychol 419–31; RDV Nixon, P Nishith and PA Resick, ‘The Accumulative Effect of Trauma Exposure on Short-term and Delayed Verbal Memory in a Treatment-seeking Sample of Female Rape Victims’ (2004) 17(1) J Trauma Stress 31–35; A Moller, HP Sondergaard and L Helstrom, ‘Tonic immobility during sexual assault – a common reaction predicting post-traumatic stress disorder and severe depression’ (2017) 96 Acta Obstet Gynecol Scand 932–93.

44 GG Gallup, ‘Tonic Immobility: The Role of Fear and Predation’ (1977) 27(1) Psychol Record 41–61; HS Bracha, ‘Freeze, Flight, Fight, Fright, Faint: Adaptionist Perspectives on the Acute Stress Response Spectrum’ (2004) 9 CNS Spectr 679–85; BP Marx and others, ‘Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault Survivors’ (2008) 15 Clin Psychol Sci Practice 74–90; MJ Bovin and others, ‘Tonic Immobility Mediates the Influence of Peritraumatic Fear and Perceived Inescapability on Posttraumatic Stress Symptom Severity Among Sexual Assault Survivors’ (2008) 21(4) J Trauma Stress 402–09; MW Alban and V Pocknell, ‘Cognitive Factors Affecting Freeze-like Behavior in Humans’ (2017) 144(2) J Gen Psychol 140–56.

45 SD Suarez and GG Gallup, ‘Tonic Immobility as a Response to Rape in Humans: A Theoretical Note’ (1979) 29 Psychol Record 315–20; G Galliano and others, ‘Victim Reactions During Rape/Sexual Assault: A Preliminary Study of the Immobility Response and Its Correlates’ (1993) 8 J Interpers Violence 109–14; GC Mezey and PJ Taylor, ‘Psychological Reactions of Women Who Have Been Raped – A Descriptive and Comparative Study’ (1998) 152 Br J Psychiatry 330–39; CJ Gidycz, A Van Wynsberghe and K Edwards, ‘Prediction of Women’s Utilization of Resistance Strategies in a Sexual Assault Situation: A Prospective Study’ (2008) 23 J Interpers Violence 571–88; J Bucher and M Manasse, ‘When Screams Are Not Released: A Study of Communication and Consent in Acquaintance Rape Situations’ (2011) 21(2) Women Crim Justice 123–40; A Moor and others, ‘Rape: A Trauma of Paralysing Dehumanization’ (2013) 22(10) J Aggress Maltreat Trauma 1051–69.

46 Crimes Act 1900 (ACT) ss 50–72; Crimes Act 1900 (NSW) ss 61H–80AAA; Crimes Act 1958b (Vic) ss 35–52K; Criminal Law (Consolidation) Act 1935 (SA) ss 46–60; Criminal Code Act 1899 (Qld) ss 347–52; Criminal Code Compilation Act 1913 (WA) ss 319–31 D; Criminal Code Act (NT) ss 192, 192A.

47 Gillard v The Queen [2014] HCA 16 at [21].

48 See also KJ Arenson, ‘The Queen v Getachew: Rethinking DPP v Morgan’ (2013) 77 J Crim Law 151–62.

49 ACT Legislative Assembly Standing Committee on Justice and Community Safety <https://www.parliament.act.gov.au/in-committees/standing-committees-current-assembly/standing-committee-on-justice-and-community-safety/inquiry-into-the-crimes-consent-amendment-bill-2018> accessed 6 June 2019.

50 ACT Legislative Assembly Standing Committee on Justice and Community Safety, Submission of ACT Director of Public Prosecutions <https://www.parliament.act.gov.au/__data/assets/pdf_file/0019/1255240/10-ACT-DPP.pdf> accessed 6 June 2019.

51 ACT Legislative Assembly Standing Committee on Justice and Community Safety, Submission of ACT Bar Association <https://www.parliament.act.gov.au/__data/assets/pdf_file/0009/1244574/03-ACT-Bar-Association.pdf> accessed 6 June 2019.

52 New South Wales Law Reform Commission, Consent in Relation to Sexual Offences. Draft proposals. October 2019. https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Other-Publications/Draft-proposals/Draft%20proposals%20-%20Consent%20in%20relation%20to%20sexual%20offences.pdf accessed 19 April 2020.

53 AL Marcinial, ‘The Case against Affirmative Consent: Why the Well-Intentioned Legislation Dangerously Misses the Mark’ (2015) 77 U Pitt L Rev 51–75; S Croskery-Hewitt, ‘Rethinking Sexual Consent: Voluntary Intoxication and Affirmative Consent to Sex” (2015) 26 New Zealand Universities Law Review 614–635; J Witmer-Rich, ‘Unpacking Affirmative Consent: Not as Great as You Hope, Not as Bad as You Fear’ (2016) 49 Texas Tech Law Review 57- 60; J Monaghan and G Mason, ‘Communicative Consent in New South Wales: Considering Lazarus v R’ (2018) 43 Alternative Law Journal 96; G Mason and J Monaghan, ‘Autonomy and responsibility in sexual assault law in NSW: The Lazarus cases’ (2019) 31 Curr Issues Crim Justice 24–34.

54 E Henderson and K Duncanson, ‘A Little Judicial Direction: Can the Use of Jury Directions Challenge Traditional Consent Narratives in Rape Trials?’ (2016) 39 UNSW Law Journal 750–778.

55 Criminal Code (NT) s 192A; Evidence Act 1929 (SA) s 34N; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 80C; Jury Directions Act 2015 (Vic) s 46; UK, Judicial College, The Crown Court Compendium Part I: Jury Directions and Trial Management and Summing Up (August 2019) ch 20 [20-1].

56 Criminal Procedure Act 1986 (NSW) s 294 Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings.

57 Criminal Procedure Act 1986 (NSW) s 293A Warning may be given by Judge if differences in complainant's account.

58 Criminal Procedure Act 1986 (NSW) s 294AA Warning to be given by Judge in relation to complainants' evidence.

59 M Bagaric, ‘The Community Interest in Bringing Suspects to Trial Trumps the Right to an Impartial Decision Maker – At Least in Victoria’ (2010) 34 Crim L J 5–10.

60 JRP Ogloff and VR Rose, ‘The Comprehension of Judicial Instructions’ in N Brewer and JD Williams (eds) Psychology and the Law: An Empirical Perspective (Guilford Press, New York, 2005) 425.

61 New South Wales Law Reform Commission, Jury Directions, Report 136. November 2012. https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-136.pdf accessed 19 April 2020.

See also M Weinberg and staff from the Judicial College of Victoria and the Department of Justice for the Jury Directions Advisory Group, Simplification of Jury Directions Project: A Report to the Jury Directions Advisory Group (2012) [1.44] citing J A Tanford, ‘The Law and Psychology of Jury Instructions (1990) 69 Nebraska Law Review 71, 84–85.

62 NSW Criminal Justice Offence Taskforce, Responding to Sexual Assault: The Way Forward (2006) 89–90 https://www.justice.nsw.gov.au/justicepolicy/Documents/cjsot_report.pdf accessed 19 April 2020.

63 H Donnelly, R Johns and P Poletti, Conviction Appeals in New South Wales Monograph series (Judicial Commission of New South Wales); no. 35 (June 2011) 93–94 https://www.judcom.nsw.gov.au/wp=content/uploads/2016/07/research-monograph-35.pdf accessed 19 April 2020.

64 See also R Scott, ‘Trial by Judge without Jury – Some Contemporary Reflections’ (2017) 26 JJA 157–183.