Jury trials for rape can be traumatic for victims, and have low conviction rates. But are calls for judge-only trials warranted? By Sally Blundell.
Sorry. Sorry for not remembering, sorry for crying. Sorry for not understanding the often-archaic language of the courtroom.
Again and again, in transcripts from adult rape trials in New Zealand courtrooms, the complainant apologises.
"It is common, especially if people get upset or they don't understand," says Elisabeth McDonald, an adjunct law professor at the University of Canterbury, who researches sexual and family violence law and has conducted studies on rape trials. "Being challenged about inconsistencies in your account – it's about your sense of self and you are so vulnerable."
The criminal justice system has long been recognised as a difficult space for victims of sexual violence. The cross-examinations, the pressure to remember meticulous details, to recount distressing events over and over again, to have any chinks in your credibility excavated for forensic inspection – even when you're behind a screen or CCTV camera, it is bruising.
"There is the 'not knowing' part of the process," says Christine Thomas, crisis co-ordinator for the Ōtepoti Collective Against Sexual Abuse, or Ōcasa (formerly Rape Crisis Dunedin). "Will people believe me? Will the offender plead guilty? Will there be any repercussions for speaking up? Will I upset my family? Will I have to see the person who hurt me? A lot of the anxiety occurs in the lead-up to the trial, which can take upward of two years. The constant delays make matters worse and mean that survivors are constantly having to recalibrate their psyche to get their head around the delays."
Then, when the trial comes, although many survivors feel seeking justice is an important part of the healing process, not being believed "can be incredibly traumatising".
The bar for proof is high – as it should be. Rape is a serious charge and juries want to be really sure before reaching a guilty verdict. McDonald says jurors are generally extremely conscientious in approaching their task and trial-by-jury remains a core feature of a democratic and largely transparent criminal justice system. But rape convictions remain at the bottom of the chart in crime statistics. Figures from the Ministry of Justice show in 2020-21 just under a third of all people charged with rape were convicted.
Inevitably, claims a 2015 Law Commission report, The Justice Response to Victims of Sexual Violence, complainants are "opting out" of the very system that is supposed to recognise their rights and support their needs, "largely because they perceive the criminal justice system to be alienating, traumatising and unresponsive to their legitimate concerns".
According to a Ministry of Justice 2020 crime and victims survey, as many as 94 per cent of sexual assaults are not reported.
In 2016, Dunedin woman Polly Riddell travelled to Wellington when the man who had admitted raping seven years earlier appealed his sentence. Her parents, retired Family Court judge Rosemary Riddell and journalist, novelist and screenwriter Mike Riddell, thought it was a chance for Polly to close the chapter on the whole ordeal. But, as Rosemary said in the Frank Film documentary Polly's Story last year, "We were so wrong – it was an absolute disaster."
"It unravelled me," Polly had written to her parents. "I felt victim-blamed, slut-shamed."
Now, three-and-a-half years after Polly died from a drug overdose (a 66-year-old man has since been charged with manslaughter), the memory is still raw.
"The defence lawyer [at the appeal hearing] attempted to diminish the gravity of the offence by talking about the sexual history of the people," says Mike Riddell. "That was horrendous for Polly – she went right off the rails after that – and it is not relevant as to whether someone has committed a horrendous crime. The problem from my point of view is the adversarial system – it just does not work. There has to be some compassion and a sense of justice that drives the whole thing."
In 2020, McDonald published a study of 30 jury rape trials, titled "Rape Myths as Barriers to Fair Trial Process". Her research aimed to figure out why, after decades of reform, adult complainants still report that giving evidence is "a key point of re-victimisation". Transcripts and audio recordings were examined to identify the triggers for what she calls "heightened emotionality": long pauses, crying, asking for a break, struggling to give a complete answer, or times when the judge or counsel suggested an unscheduled break.
These triggers included challenges to the complainant's memory, the failure to recall minute details, and the reliance on "rape myths" – the idea that rape only occurs between strangers; that it mostly takes place outdoors; that it involves physical violence; that a woman can always withhold consent to sex no matter how drunk she is; and that women have only themselves to blame because of their clothes, drinking habits, previous sexual relationships or risky behaviour such as flirting or kissing.
Even though it is not uncommon for victims to "freeze" and it may take a person some time to process what has occurred, according to this schema a "real" rape victim does all she can to resist and flee, displays great emotion when recounting the events in question, and remembers every harrowing detail.
Such findings support calls to ditch jury trials in rape cases altogether. However, the assumption that judge-only trials are any better has been found to be misplaced. McDonald has now applied the same "heightened emotionality" criteria to eight judge-alone trials and published her findings in a new book, In the Absence of a Jury: Examining judge-only rape trials.
Judge-only trials had some pluses, she found. In jury trials, the reasons for the verdict are kept within the jury; in judge-only trials, the requirement to state those reasons allows the complainant to understand the outcome.
"At least then the complainant knows whether she is believed or not," says McDonald. "An acquittal in a jury trial could mean they didn't believe her, or it could mean they did believe her but the Crown did not establish beyond reasonable grounds what the defendant thought – they can't tell."
Overall court case time in the judge-alone trials was on average shorter than for jury ones (although waiting time for the verdict can be longer) and there was a greater use of pre-recorded statements and CCTV screens.
But even though the conviction rate for rape in the judge-alone trials was higher than for the jury ones (seven out of the eight trials over six years, or 88%, as opposed to 40%), judge-alone trials do little to protect rape complainants from damaging and distressing attacks on their credibility.
Although both studies revealed high rates of immediate or next-day reporting of the alleged offending by the complainant, a delay in going to the police was seen as undermining the claim of rape. And in both types of trial there was also an unwarranted expectation that a "real" rape victim would make a "hue and cry". As the defence counsel in one judge-only case said, "If she'd been raped and violated like that, I'm sure she would have yelled, screamed, protest[ed] and been anxious to have [the accused] apprehended."
While judges can be cautious about intervening too often during cross-examination in front of a jury, lest this is seen to favour the defendant, intervention in judge-only trials was less than expected.
Repetitive questioning about the details of the alleged offending was the same in both types of trials, and in both types, evidence the complainant was in an intimate relationship with another person was presented (this can be used to suggest the complainant made a false complaint in order to hide from her partner a consensual affair).
In both types of trials, complainants were asked to explain common digital or social media technologies, such as emojis or WhatsApp. Such questions, says McDonald, create an impression of the complainant as someone outside the "sensible and mature social world of the courtroom".
In both of McDonald's trial studies, a large percentage of the complainants had been drinking, some heavily, before the alleged crime. A complainant's level of intoxication is a double-edged sword. It can support an inference that she lacked the capacity to consent. However, it can also undermine her credibility – the New Zealand Gender Attitudes Survey 2017 found that 15 per cent of respondents agreed with the statement that if someone is raped when they're drunk, "they're at least partly responsible for what happens".
In both studies it was suggested the complainant was not actually too drunk to consent. In one judge-alone trial, a complainant was challenged about the amount of alcohol she drank and its effect on her.
Q: Did you black out often when you were drinking? A: Very often. Q: Do you remember what you did when you blacked out? A: No, I was blacked out. Q: Okay, alright. Is that what blacked out means? You have no memory or does it mean something else? A: It means loss of memory. It means I do, I just f--- out completely. I can't stand. I can't do shit. I can't, I, anybody who has seen me drunk will tell you that I'm just nothing, like I'm just like – Q: And do silly things maybe when you're blacked out? A: Probably, but I don't get myself raped. Although the judge interjected at this point, the defence counsel went on to say, "You're exaggerating when you say you black out. You don't black out. That's true, isn't it?"
Questioning complainants about their lack of memory regarding the details of the events formed the basis of nearly all of the cases in both adult rape trial studies, even though, as McDonald writes, it is unrealistic to expect victims of sexual assault to recall all aspects of their traumatic experiences. "That is not how the brain works when the defence circuitry has kicked in."
Although the Solicitor-General's Guidelines for Prosecuting Sexual Violence say questions asked "in an intimidating, hectoring or aggressively dismissive manner, or questions that are designed to humiliate the witness" should be objected to, McDonald found that in both types of trial questions were asked in an "unnecessarily mocking, patronising or belittling manner, with no objection from either the judge or the prosecutor".
Because the complainant is generally not present in either form of trial when closing addresses are made, such statements are unlikely to have an impact on their wellbeing. But, as McDonald writes, if closing statements reinforce rape mythology, and the media rely on those statements to sum up the trial when reporting, "this process can perpetuate unhelpful stereotypes or reasoning".
Analysis of closing statements in all 30 jury trials showed that, in many cases, the defence counsel used groundless ideas about what "real rape" looks like. Again, "It was rare to find examples where judges countered these submissions in summing up."
In almost all of the defence closing addresses in the judge-alone trials, the complainant's lack of resistance to the alleged assault, or the fact the accused was not a "real" rapist, were similarly used to challenge the complainant's version of events. As the defence counsel in one case said: "It's clear, Your Honour, that [lifting the complainant] up is not the act of some type of brutal rapist who suddenly grabs the complainant from behind, you know, in a dark alley or something like that."
Overall, there was no noticeable drop in displays of heightened emotion in the judge-only trials; in fact, the rates in these were higher. The constraints of the adversarial trial process in adult rape cases, McDonald writes, remain the same.
Change is in the wind. In response to the 2015 Law Commission report, pilot specialised sexual violence courts – still using a jury – were set up within the district courts of Auckland and Whangārei and are still in action. The goal was to bring specialist judges and counsel together to get to the truth of an alleged rape without retraumatising the complainant.
A year-long study of these courts, led by McDonald, found waiting time was reduced significantly, judicial interaction with the complainant was more frequent, and there was less admission of irrelevant evidence. However, the impact of cross-examination was largely unchanged.
In the 2019 Budget, the Ministry of Social Development allocated $90.3 million over four years to strengthen support for victims and perpetrators of sexual violence. Of this, $6.3 million will be used to develop a support service for survivors of sexual violence going through the criminal justice system.
The Sexual Violence Legislation Act, which was passed in December, aims to reduce trauma to victims of sexual violence when they attend court. Key changes include allowing complainants to use alternative ways of giving evidence; making sure evidence about a complainant's previous sexual interactions with the defendant is off limits, unless it is highly relevant; requiring judges to talk to the jury to dispel any misconceptions relating to sexual violence; and requiring judges to intervene when questions to witnesses are considered unacceptable.
These changes will be supported through specialist education and training for judges, prosecutors and defence lawyers.
Still, calls to replace our adversarial system altogether persist. Under this system, guilt is determined through competing arguments on both sides. This, writes McDonald, fosters a confrontational testing of the evidence and can lead complainants to feel that they, rather than the accused, are on trial.
In an inquisitorial system, used in many European jurisdictions, the judge has primary responsibility for managing the process once the matter has been brought to the court.
"Rather than the parties being in charge of how trial proceeds, the judge would have a lot more say," says McDonald. "The judge might say the issue at this trial is consent, so everything will be limited to this issue and we are not going to hear any other evidence."
McDonald says her work is not about getting more convictions. "It is saying, let's change the law so there's a bit more fairness in the trial. When you see convictions in these kinds of cases it seems more likely to be a result of someone else hearing something, or the defendant has been convicted before, or they are gang-affiliated. Those are the kinds of things that are seen, unfortunately, to have more impact on outcome than credibility."
One way to achieve community input and a reasoned judgment, she says, was put forward in a Law Commission's 2012 issues paper. (Issues papers identify areas needing law reform and call for public submissions.) The facts in a trial would be deliberated by a judge and two jurors selected to sit on a number of cases for a fixed term. The jurors would receive some training; judges would undertake a specialist training programme and both prosecution and defence counsel would need to be accredited before they could act on sexual offence cases.
For Mike Riddell, it is long overdue. "Sexual abuse is crying out for that. In many cases it gets into a 'he says, she says' situation with no objective proof. It takes a bit of wisdom and kindness to pick out the details but we don't have that system. It needs people who understand both the law and the human nature of sexual assault. We lived with Polly through many years of struggle – we have seen how difficult it was for her to get through each day."
The Absence of a jury: Examining judge-alone rape trials by Elisabeth McDonald (Canterbury University Press) is available online now, with a print edition to follow.
Where to get help for sexual assault:
If it’s an emergency and you feel that you or someone else is at risk, call 111.
· The Harbour Online support and information for people affected by sexual abuse.
· Women’s Refuge 0800 733 843 (females only)
· Male Survivors Aotearoa - Helplines across NZ