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There’s been a concerted effort to modernise rape law in Australia across the last 40 years. Changes have been evidence-based — a rare thing for criminal law reform — to reject common, victim-blaming myths previously embedded in common law.

But while legislation has changed, not all lawyers have. Evoking rape myths is still standard courtroom practice.

There is a paradox here. Lawmakers have gone to considerable lengths to “bust” certain rape myths, from what a “real rape” looks like, what a “genuine victim” does, to attitudes and assumptions that jurors and judges should not bring to rape trials. And yet, complainants are still being asked questions that effectively invite jurors to bring exactly those myths and stereotypes to their decision-making.

Myth #1: Did you fight back?

One of the classic myths is that a true rape complainant “resists to the utmost”, fighting back and bearing physical injuries to prove it.

But for over a decade, consent laws have focused on free and voluntary agreement and a so-called communicative model of consent.

Language in the crimes acts and criminal codes has been updated to reflect this. For example, in NSW consent is defined as “if the person freely and voluntarily agrees to the sexual activity. In Victoria, “consent means free agreement”.

So any expectation that a complainant must resist to be believed in court should be abandoned. It follows, you would think, that defence lawyers would stop asking questions about what she did or didn’t do at the time of the rape. Not so much…

“Why didn’t you scream? Did you try to force him off? Did you actually say no? Didn’t you smile at him on the dance floor that evening?” Questions like these are asked regularly in contemporary rape trials.

Myth #2: How a ‘genuine victim’ behaves

Another example of the resilience of rape myths is the treatment of “delay” — a failure to report the rape immediately. In common law, a failure to do so was grounds for inferring that the complainant had consented to the sexual intercourse and that her testimony was unreliable.

Since the 1980s legislative reforms have attempted to overturn such assumptions about how the “true” rape complainant will behave. In Victoria if the judge considers it is likely that evidence in a trial suggests the complainant delayed in reporting, the judge must inform the jury that people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence. This direction needs to be given even before the evidence is admitted. It is hard to imagine how the law could be clearer, beyond an outright ban on evidence of “delay”.

Yet questions designed to elicit “delay” evidence are still commonplace. Delays, whether they are days, hours or minutes, are brought into question.

It’s not only when a victim reports rape that is scrutinised, but how. It might be not so much that the complainant waited too long, but that she told the wrong person (her friend not her mother), went to the wrong place (the hospital not police station) or was insufficiently precise in the initial disclosure (“attacked” not “raped”).

So much for there being no “typical, proper or normal” response.

Defence counsel pursue these lines of question presumably because they are still confident that the underlying rape myths can be evoked in jury members. But it’s not only defence counsel that keep these myths alive. Prosecutors find it hard to resist drawing attention to aspects of a case that have “real rape” characteristics — the complainant did fight back, expressly said “no”, immediately told the first person they saw they had been raped.

It could be argued that the Crown should put the strongest case forward to achieve justice for the complainant and the community. But what are the implications for the larger project of modernising rape law and consigning rape myths to history?

Myth #3: Women lie

The most disheartening aspect of all this is being reminded that the narrative of the complainant lying is still central to the courtroom. We have come so far in understanding sexual violence — its prevalence, impact, reality. We know these things. And yet, in the courtroom, these truths are forgotten.

Against all the collective evidence shared by sexual violence victims about their experiences, the trial is conducted on the basis that this complainant is a liar. Defence lawyers can be endlessly creative in their theories (or fantasies) about why she lied: to “cover up” consensual sex from a partner, to avoid an employer discovering “partying” behaviour, as revenge for being rejected… simply add your reason here. This tactic is so common as to be a “logic” of rape trials.

Given the trauma that complainants so often experience in rape trials, why doesn’t a different logic prevail: why would anybody manufacture and persist with a “lie” knowing the consequence will be the awful ordeal of a rape trial?

And why wouldn’t the undeniable facts about the sheer scale of sexual violence — from high schools to the High Court to Parliament — loosen the grip of myths on how rape trials are run, even just a little?

If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.

Julia Quilter is a former solicitor and criminologist at the University of Wollongong.