Judges as Myth-Busters: A Re-Examination of Jury Directions in Rape Trials 31 Griffith Law Review 2022

About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

31 Griffith L. Rev. 485 (2022)
Judges as Myth-Busters: A Re-Examination of Jury Directions in Rape Trials

handle is hein.journals/griffith31 and id is 485 raw text is: GRIFFITH LAW REVIEW Routledne
2022, VOL. 31, NO. 4, 485-512
https://doi.org/1 0.1080/10383441.2022.2143663 Taylor & Francis Group
Judges as myth-busters: a re-examination of jury directions in
rape trials
Julia Cooper
Faculty of Arts and Law, University of New South Wales, Sydney, Australia
ABSTRACT KEYWORDS
The Victorian and New South Wales Law Reform Commissions ('the Jury directions; rape myths;
Commissions') have recently heralded jury directions as a solution law reform commissions;
to 'counter and correct' rape myths in the courtroom. The empirical re-examination;
Commissions recommended several new directions and espoused theoretical re-examination;
considerable optimism in their power to transform rape trials. critical legal theory
These recommendations are driven by an unscrutinised rationalist
agenda, which assumes that rape myths can be corrected. In
response, this article maps out an empirical and theoretical re-
examination of jury directions and their ability to 'counter' rape
myths. This article draws on the theoretical works of Pierre
Bourdieu and Roland Barthes to scrutinise this construction of
myths and the assumption underpinning the recommendations.
By doing so, this article argues that the confidence espoused by
the law reform bodies is misguided.
A myth ... [cannot] be grasped or encompassed; it haunts the human consciousness without
ever appearing before it in fixed form.'
Since the 1980s law reform bodies have attempted to mitigate pervasive myths and
misconceptions about rape,2 which have been demonstrated to impact the juror
decision-making process.3 Recently, the New South Wales and Victorian Law Reform
Commissions have suggested increasing the number of jury directions in the belief
that directions effectively 'counter and correct misconceptions' in rape trials.4 The
New South Wales Law Reform Commission's ('NSWLRC') 2020 report stated:
'additional directions will function to ensure that jurors ... apply the law correctly with-
out recourse to possible misconceptions'.5 This sentiment has been echoed in several
common law jurisdictions around the world6 and in many cases, the endorsement has
led to the increased reliance on directions in sexual assault trials.' This solution reflects
CONTACT Julia Cooper cooper.juliakate@gmail.com - UNSW, Sydney NSW 2052, Australia
'Beauvoir (2009), p 143.
21n this article have also chosen to refer the offence as 'rape' - which is the legal definition of the offence in Victoria.
3See, e.g. Quilter, McNamara, and Porter (2022a), (2022b); McDonald et al. (2020); Victorian Law Reform Commission
(2021).
4Victorian Law Reform Commission (2021), p 432.
sNew South Wales Law Reform Commission (2020), p 160.
6'Hear Her Voice: Report Two' (2022), pp 341-349; New Zealand Law Reform Commission (2019), p 20: Recommendation
20.
7Sexual Violence Legislation Act 2021 (NZ) s 126A; Picton et al. (2020), [20-1].
© 2022 Griffith University