- See for example: Rae Kaspiew, ‘Rape lore: legal narrative and sexual violence’ (1995) 20 Melbourne University Law Review 350; Charlotte Mitra ‘Judicial discourse in father-daughter incest appeal cases' (1987) 15 International Journal of the Sociology of Law 121; Lesley Feiner, ‘The Whole Truth: Restoring Reality to Children's Narrative in Long Term Incest Cases’ (1997) 87 The Journal of Criminal Law and Criminology 1385; Ngaire Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence, Sydney: Allen & Unwin, 1990; Jocelynne Scutt, Even in the Best of Homes: Violence in the Family, Ringwood: Penguin, Australia, 1990; Jocelynne Scutt, The Incredible Woman: Power and Sexual Politics, Melbourne: Artemis, 1997; Carol Smart, Feminism and the Power of Law, London: Routledge, 1989; Carol Smart, Law, Crime and Sexuality, London: Sage, 1995.
- I use the term ‘victim/survivor’, following Rae Kaspiew who used this term in her research on sexual assault, regardless of whether the accused was aquitted or convicted. Like Kaspiew, I believe that the use of the term reflects the ‘self-believed reality ‘of the person alleging assault, rather than what the jury chose to accept. Kaspiew, op. cit. See n 1 above.
- Trial data from my research provide examples of where defence barristers have accused mothers of seeking revenge against husbands via their children's allegations. In appeals following successful conviction some defence counsel have argued that the mother was a contributor to the perpetrator's actions because she caused marital disharmony. These preliminary findings support Charlotte Mitra, ‘Judicial Discourse in father-daughter incest appeal cases’, above n1.
- Dominant theoretical notions of daughters as emotionally unstable and seductive, and mothers as both colluding and causative agents in abuse can be found, for example, in the work of B. Justice & R. Justice, The Last Taboo, New York: Human Sciences Press, 1979; Ruth Kempe & Henry Kempe, The Common Secret, New York: Freeman, 1984; Leroy Schultz, Rape Victimology, Springfield, U.S.A. 1975.
- Literature on this topic is vast. See for example; Louise Armstrong, Rocking the Cradle of Sexual Politics, Massachusetts: Addison-Wesley, 1994. See also above n1.
- R v S November 1995 (Unrept, Melbourne County Court, Campton J).
- Ibid, at 96.
- R v S October 1994 (unreported, Melbourne County Court, Villenuve-Smith J) at 348. Note that this trial was aborted prior to any evidence being given by the victim/survivor, after the presiding judge became ill.
- R v S November 1995, above n5 at 191–196.
- See the second trial (November 1995) at 423–424 (above n 5) and the third and final trial (R v S unreported, May, 1996, Melbourne County Court, O'Shea J) at 93–94 for specific examples. At various other times in cross-examination the defence introduced questions alluding to the behaviour of the victim/survivor.
- R v S November 1995, above n 5 at 198.
- Ibid, at 171.
- Ibid, at 172.
- Ibid.
- Ibid, at 173.
- See for example L. Armstrong (above n5); David Finkelhor, A Sourcebook on Child Sexual Abuse, California: Sage, 1986; Judith Herman, Father Daughter Incest, Massachusetts: Harvard University Press, 1981; Elizabeth Ward, Father Daughter Rape, London: The Women's Press, 1984; Diana Russell, ‘The Incidence and Prevalence of Intrafamilial and Extrafamilial Sexual Abuse of Female Children’ (1983) 7 Child Abuse and Neglect 133; David Finkelhor, Child Sexual Abuse, New York: Free Press, 1984.
- R v S 1995, at 173 above n5.
- For a good discussion on Lord Hale and his views of witches and rape victims see Gilbert Geis, ‘Lord Hale, Witches and Rape,'(1978) 5 British Journal of Law and Society 26; also Gilbert Geis, ‘Revisiting Lord Hale, Misogyny, Witchcraft and Rape’ (1986) 10 Criminal Law Journal 319.
- R v S November 1995, above n5 at 175.
- Carol Smart discusses the way in which the law identifies and promotes itself as an institution that speaks objective ‘Truths' and how such knowledge and ‘truths' are legally pronounced as valid knowledge and valid ‘Truths’. Smart also discusses the Foucauldian concept of law's colonisation of knowledge, in particular the ‘psy’ discourses, and how law can deploy the disciplines to enhance its own power: Carol Smart, Feminism and the Power of Law, above n1 at 6–22.
- R v S November 1995, above n5 at 199.
- Ibid, at 348.
- The ‘previous trial judge’ refers to the judge in first trial of R v S in the Melbourne County Court in October 1994. (Note the ruling from this first trial was not transcribed. However in the second trial of R v S in the Melbourne County Court, November 1995, the prosecutor read aloud to the new judge, the previous judge's ruling from the first trial. (The first trial commenced in October 1994 and was aborted before the victim/survivor gave any evidence). This ruling canvassed the reasons why the judge refused the defence permission to cross examine the victim/survivor outside of S.37a of The Rape Proceedings Act 1976: R v S 1995, above n5 at 257–265.
- R v S 1995, above n5 at 257–275.
- Ibid, at 277.
- Ibid, at 247.
- Rape Proceedings Act 1976 s 37. This Act refers to rape shield laws that were designed ostensibly to protect rape/sexual assault victims/survivors from being cross examined about their sexual history other than with the accused. This prohibition was strengthened in the Crimes Rape Act 1991 Section 37a. Despite this protective legislation, my research identifies a number of trials in which the defence successfully sought Special Leave from the presiding judge to question victims/survivors about their prior sexual history.
- R v S November 1995, above n5 at 202–207, (emphasis added).
- Ibid, at 208, (emphasis added).
- The reasons why the judge ruled against the expert evidence being put directly before the jury remain unclear, as the transcript of the 1995 trial made available to me, was incomplete.
- R v S November 1995, above n5 at 381.
- Ibid.
- R v S November 1996, above n9 at 91. Note: these questions are taken from the 1996 trial but the style of cross examination and the same types of questions were put to the victim/survivor in the 1995 trial.
- Ibid, at 64.
- Ibid, at 70.
- Ibid, at 110–113, 74–76 and 104.
- R v S 1995 above n5 at 257 (taken from 1995 trial in which the Prosecutor read aloud a large excerpt from the previous judges ruling as to why the defence could not use any material from the victim/survivor's counselling files).
- R v S May 1996 (Unrept, Melbourne County Court, O'Shea J) at 11. This was the third trial at which the accused was acquitted of two charges. The jury was undecided about a third charge and the DPP decided not to proceed with another trial on the undecided charge.
- Ibid, at 10.
- Ibid, For specific examples see trial transcript at 92–105.
- Note that the defence barrister made it clear that he ‘want[ed] to paint a picture of Munchausen’ with regard to the mother and daughter (R v S 1995 at 248 (above n5)) and was provided with the scope to do just that. Other feminist scholars have noted the ability for defence barristers in cross examination to be insinuating and to engage in offensive innuendo about the character of victim/survivor in order to destroy their credibility in the minds of the jury. See Alison Young, ‘Insinuation and Implication: Some Defence Cross Examination Strategies,’ Who's On Trial. Melbourne: CASA House, 1998 at 90–96; Susan Edwards, Female Sexuality and the Law, Oxford: Martin Robertson, 1981 at 165.
- R v Stevenson 1996 at 248 (above n9).
- Ibid, at 267–279.
- Ibid, at 245. How this information was used is not clear as no further comment on this evidence appears in the transcript. However, I have assumed that the defence used this evidence in their closing address to rebut the victim/survivor's evidence as to the depth of penetration.
- R v S 1995 (Unrept, Melbourne County Court) at 141.
- Of the twelve trials so far analysed, two were retrials resulting from successful appeals. The perpetrators were again convicted. Four trials resulted in conviction but were all successfully appealed with the convictions being quashed and a retrial ordered.
Australian Feminist Law Journal
Volume 14, 2000 - Issue 1