How Protected is She? 'Fairness' and the Rape Victim Witness in Australia

35 Women’s Studies International Forum 334-342, 2012

Posted: 4 Dec 2012 Last revised: 28 Sep 2018

See all articles by Jessica Kennedy

Jessica Kennedy

University of Canberra

Patricia L. Easteal

University of Canberra - School of Law and Justice

Lorana Bartels

Australian National University (ANU) - ANU Centre for Social Research and Methods

Date Written: 2012

Abstract

How do principles or notions concerning fairness of proceedings tend to play out in Australian rape trials? We look at two types of legislative provisions pertaining to evidence in chief and cross-examination that have been altered in the last three decades in Australia. They were enacted to eliminate or minimise questions about the victims’ sexual history and/or reputation, alter what is considered proper questioning and provide procedures to better protect victim witnesses’ rights to safety. We examine what appear to be the limitations of law reform to mitigate the trauma of the trial for victims, to produce more accurate and consistent evidence and to increase prosecution and conviction rates. The implications of reducing judicial discretion in this context are also considered.

Keywords: fairness rape trials, law reform, improper questioning, judicial discretion

JEL Classification: K00

Suggested Citation

Kennedy, Jessica and Easteal, Patricia L. and Bartels, Lorana, How Protected is She? 'Fairness' and the Rape Victim Witness in Australia (2012). 35 Women’s Studies International Forum 334-342, 2012. Available at SSRN: https://ssrn.com/abstract=2181782

Jessica Kennedy

University of Canberra ( email )

Canberra, Australian Capital Territory 2601
Australia

Patricia L. Easteal (Contact Author)

University of Canberra - School of Law and Justice ( email )

Australia

Lorana Bartels

Australian National University (ANU) - ANU Centre for Social Research and Methods ( email )

Beryl Rawson Building (13)
Canberra, ACT 0200
Australia

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