Reflection on Dr Anna Carline’s seminar
On the 10th April, the CCLJ and the University of Wollongong School of Law welcomed Associate Professor Anna Carline from the University of Leicester’s School of Law for a seminar on rape law reform and criminal barristers’ perspectives in England and Wales. Dr Carline has published extensively on the issues of rape and sexual assault, and her work has been used in the production of two primary prevention interventions in North West England, aimed at reducing alcohol related rape and sexual assault. Her research is particularly relevant in light of the NSW Law Reform Commission’s current inquiry into sexual assault and consent.
In her seminar, Dr Carline drew upon two recent empirical studies she conducted with barristers across England and Wales, exploring practitioners’ perspectives on the development and implementation of rape law reforms contained in the Sexual Offences Act 2003 (UK). Dr Carline’s presentation focused on the treatment of evidence of complainant intoxication. Unlike NSW, there is a legal distinction between rape, assault by penetration and sexual assault under the Sexual Offences Act 2003 (UK). Dr Carline’s seminar focused on rape, which is contained within the definition of sexual assault under the Crimes Act 1900 (NSW).
Since the 1980s, there has been a significant reduction in rape convictions in England and Wales, with a drop from 25% in 1985, to 7% in 2000. Dr Carline noted that this decline occurred at a time when reporting rates were increasing, especially cases in which alcohol was consumed by the complainant. Barristers interviewed for Dr Carline’s study that complainant alcohol consumption was a feature of the majority of rape trials. Their reported impression was that juries tended not to sympathise with complainants who had voluntarily consumed alcohol before their sexual assault. Barristers perceived that jurors tended to regard the consumption of alcohol as undermining complainant credibility, and feared that juries would perceive the alleged rape as merely regrettable sexual behaviour, rather than non-consensual sex. Surprisingly, Dr Carline revealed that many complainants unintentionally downplay how much alcohol they consumed to avoid challenges to their reliability and adverse judgement by juries. However, this could actually undermine their credibility if other evidence (witnesses or CCTV footage) showed their self-assessment to be inaccurate.
Dr Carline went on to detail the presumptions contained in the Sexual Offences Act 2003 (UK), which are designed to support the Crown’s ability to prove non-consent. Some notable issues were exposed, including that there is no statutory presumptions covering voluntary intoxication or intoxication not to the point of unconsciousness, and there is an implementation gap: barristers reported that they tended not to ‘use’ the presumptions. Barristers in England and wales interviewed for Dr Carline’s research perceived reliance on the statutory presumptions as potentially confusing for juries, overloading them with ‘too much law’.
Dr Carline’s research also shed light on barristers’ perceptions of the objective mens rea test for rape and the use of bench book directions by judges. Interviewed barristers tended to favour an objective ‘reasonable belief’ test. This was of particular interest to a local audience given that this aspect of the definition of sexual assault in NSW is a central focus of the NSW Law Reform Commission’s current inquiry into sexual assault and consent. A range of views have been expressed about the appropriate formulation. For example, a submission made by members of the CCLJ supports a stronger ‘reasonable belief’ test in NSW, arguing that it would produce greater clarity. Conversely, the NSW Bar Association has stated that a ‘reasonable belief’ test should not be adopted as it would ‘…continue to result in attention being paid to the actions of the complainant’ and may unwittingly permit the ‘introduction of matters such as “rape myths”…’ during complainant cross-examination.
Interestingly, Dr Carline’s research showed that barristers in England and Wales recognised this possible downfall of the objective standard, and the potential for juries to sympathise with accused persons as a result.
Barristers involved in Dr Carline’s study further acknowledged the importance of bench book directions in directing juries not to assume a complainant’s intoxication equalled consent, but also noted the limitations of courts in dispelling rape myths. As one barrister stated, ‘…I think it takes a lot more than a judge's direction to fundamentally alter what is a cultural belief’.
The discussion following Dr Carline’s seminar highlighted the complex relationship between law reform and cultural assumptions regarding rape. In particular, the implementation of media campaigns and programs to shift community beliefs alongside law reforms was discussed. Dr Carline conveyed that the 2003 UK reforms weren’t accompanied by large-scale education programs. There were only sporadic ones which continued to focus on the behaviour of victims. As a result, these campaigns failed to address the underlying misogyny that underpinned the behaviours of some perpetrators. Use of specialised courts, rape and sexual assault focused training for barristers and removing juries altogether, were other ideas discussed in connection with Dr Carline’s research. Her engaging seminar revealed challenges and pathways for rape law reform in the future, and certainly gave us much food for thought.