- F(1995) 83 A Crim R 502 at 522.
- R v Johns SA SC Bollen J 26 August 1992.
- Kathy Mack reproduces this and other sections of Bollen J's instructions in ‘Continuing barriers to women's credibility: a feminist perspective on the proof process’ (1993) 4 Criminal Law Forum 327. For further discussion of R r Johns, see also Threadgold Terry ‘Critical theory, feminisms, the judiciary and rape’ (1993) 1 Australian Feminist Law Journal 7; Mawson Melinda ‘Whores, witches and the lore: rape and witchcraft, legal and literary intersections’ (1999) 12 Australian Feminist Law Journal 41.
- See Edwards Susan Female Sexuality and the Law: A Study of Constructs of Female Sexuality as they Inform Statute and Legal Procedure Martin Robertson Oxford 1981 51; 126–9. As Edwards discusses, a ‘moral panic’ of false accusation followed media headlines sensationalising a series of assaults in railway carriages in the 19th century.
- Hale Sir Matthew The History of the Pleas of the Crown Vol 1 Professional Books London 1971 (first published 1736) 635.
- F's case above note 1.
- Department for Women (NSW) Heroines of Fortitude: The Experience of Women in Court as Victims of Sexual Assault Summary Report Department for Women Woolloomooloo 1996 at 13.
- Parliament of the Commonwealth of Australia Gender Bias and the Judiciary Commonwealth of Australia Canberra 1994 at 55.
- Parliament of the Commonwealth of Australia above note 8 at 37.
- Notable exceptions here include Peter Rush's wonderfully revisionary Criminal Law Butterworths Sydney 1997.
- Waller L and Williams C R Criminal Law: Text and Cases (9th ed) Butterworths Sydney 2001 at 92. Naffine derides the citation of Hale in the 1989 edition of this teaching text (‘Windows on the legal mind: the evocation of rape in legal writings’ (1992) 18 Melbourne University Law Review 744), but despite her criticism, Waller and Williams' favourable citation of Hale has been retained unchanged in subsequent editions.
- See Rush above note 10 at 170; Bargen Jenny and Fishwick Elaine Sexual Assault Law Reform: A National Perspective Office of the Status of Women Canberra 1995 at 26.
- Naffine above note 11 at 752.
- Naffine above note 11 at 753.
- Carmody Moira and Carrington Kerry note that studies in Australia and the UK put the attrition rates for sexual assault as high as 90 per cent (‘Preventing sexual violence?’ (2000) 33.3 Australian and New Zealand Journal of Criminology 345). Statistical summaries of rape non/conviction rates are also provided in Heenan Melanie and McKelvie Helen The Crimes (Rape) Act 1991: An Evaluation Report Department of Justice Melbourne 1997 at 13; Heath Mary and Naffine Ngaire ‘Men's needs and women's desires: feminist dilemmas about rape law “reform”’ (1994) 3 Australian Feminist Law Journal 30.
- Naffine above note 11 at 741.
- Naffine above note 11 at 741.
- Naffine above note 11 at 741.
- Some statistics suggest that the incidence of false allegations in sexual matters may even be lower than for other types of criminal offences—see Schafran Lynn Hecht ‘Writing and reading about rape: a primer’ (1993) 66 St John's Law Review 1012; South Australian Police Department Rape: A Four Year Study of Victims Government Printer Adelaide 1986.
- Concise Oxford Dictionary Oxford Press London 1976.
- One advantage of choosing to investigate law's apprehension of false complaint through the trope of anxiety is that it enables exploration of law's potential weaknesses and vulnerabilities rather than reproducing the much more familiar and foreboding representation of law as inherently powerful and controlling.
- Longman (1989) 168 CLR 79.
- In the Heroines of Fortitude study, the older form of warning—to the effect that it is dangerous to convict on the complainant's evidence alone—was still issued in 40 per cent of cases, in some instances despite ‘the complainant's extensive injuries being admitted into evidence’ (Department for Women above note 7 at 17). See also Mack Kathy “You should scrutinise her evidence with great care”: corroboration of women's testimony about sexual assault' in Easteal Patricia (ed) Balancing the Scales: Rape, Law Reform, and Australian Culture Federation Press Sydney 1998 at 59.
- Cover Robert ‘Violence and the word’ in Minow Martha, Ryan Michael and Sarat Austin (eds) Narrative, Violence and the Law: the Essays of Robert Cover University of Michigan Press Ann Arbor 1992 at 233.
- Cover above note 24 at 235.
- Mack above note 23.
- Mack above note 23 at 72 (my emphasis).
- R v Sherrin (No 2) (1979) 21 SASR 254.
- Woman, of course, is herself associated with the fictional, the imaginative and the hysterical in legal discourse: see Heinzelman Sage Susan ‘Women's petty treason: feminism, narrative, and the law’ (1990) 20 The Journal of Narrative Technique 89. Susan Edwards also traces and documents the historical assumption that women's sexual assault complaints were the product of hysteria and, hence, required medical treatment above note 4 at 100–114).
- Mack above note 23 at 60.
- Hale above note 5 at 636.
- See Binder Lisa A ‘“With more than admiration he admired”: images of beauty and defilement in judicial narratives of rape’ (1995) 18 Harvard Women's Law Journal 265.
- Doney (1990) 171 CLR 214.
- Rodriguez (1997) 93 A Crim R 535.
- When alleging false complaint, the defence is not required to prove or even suggest a motive for the complainant's accusations of sexual assault. It has been stressed, moreover, that the absence of any such motive for false complaint is not to be inferred from absence of evidence of motive, since this would be to shift the onus or alter the standard of proof required of the prosecution (Rodriguez above note 33 at 551). As the trial judge instructed the jury in R v Williams, false complaints are regularly made and sometimes ‘for no ascertainable reason’ ([1988] VR 261 at 263).
- R v Maiming and R v Henry (1968) 53 Cr App Rep 153.
- Jury direction reproduced by Department for Women above note 7 at 23.
- That a woman's account of being raped might be considered within the law as a particularly persuasive story seems counterintuitive given the low rates of prosecution and conviction, and it would certainly be empirically incorrect to conclude that law is generally ‘moved’ by rape complaints. What I am arguing, then, is that the moral dimensions of a rape history and its presumed effect form part of the context in which the particular complaint is to be especially scrutinised. Precisely because rape is such a familiar and affecting story of violation, and perhaps because its general credibility is now supported by the documented prevalence of sexual assaults, the individual complaint is seen to require extraordinary testing.
- Smart Carol Law, Crime and Sexuality: Essays in Feminism Sage Publications London 1995 at 97.
- This is an image problem of some importance, of course: as already discussed, law's authority and the criminal law's specific powers to exact punishment are legitimised through the fiction of law's powers being collectively and objectively exercised.
- Benfield (1996) 89 A Crim R 118.
- at 122.
- at 121.
- The law's use of sexual offences in strictly instrumental ways is a different matter entirely, of course. For instances of the State using sexual offences statutes to their full capacity in order to incarcerate men who are otherwise considered criminally dangerous see Moffat (1997) 91 A Crim R 557 and Rowe (1996) 89 A Crim R 467. It cannot be overlooked that the defendants in both these cases were Aboriginal.
- Quoted in Department for Women above note 7 at 13.
Australian Feminist Law Journal
Volume 16, 2002 - Issue 1