Jury Directions and Consent Narratives in Rape Trials

The La Trobe Law School warmly congratulates Dr Emma Henderson and Dr Kirsty Duncanson on their recent publication in the University of New South Wales Law Journal, entitled “A Little Judicial Direction: Can the Use of Jury Directions Challenge Traditional Consent Narratives in Rape Trials?” (2016 Volume 39(2) UNSW Law Journal 718 – 746).

 The article explores the effect of a set of jury directions about consent which are used in sexual offence trials in Victoria.  These jury directions, delivered by the judge at the conclusion of the trial, are specifically aimed at disrupting social narratives that have a strong tendency to render women’s claims of rape null.   Research findings suggest that the directions have not been effective despite numerous legislative reforms over the past 25 years.  Despite clear legislative intent, social narratives about the existence of “real rapes” (and thus, not-real rapes) continue to resonate strongly in sexual offence trials.

 In “A Little Judicial Direction”, two factually similar Melbourne County Court rape trials are compared and analysed.  In one trial the judge appears to have taken an unconventional approach to the use of the jury directions, and it is hypothesised that this approach might be causally related to the (increasingly rare) conviction of the accused for rape.   Henderson and Duncanson suggest that jury directions given at the conclusion of the trial come too late to disrupt problematic narratives, and that instead, if the intent behind the jury directions is utilised in the early decision-making stages of the trial such as at pre-trial hearings and in evidentiary rulings, the jury directions may facilitate more just outcomes.

 You can read the article here.

Havovi Panthaki