Cross-examination strategies in rape trials remain resistant to reforms, which continues to negatively impact on
complainants despite initiatives to improve the legal process, a University of Canterbury (UC) expert says.
Professor Elisabeth McDonald specialises in rape trial evidence and is publishing an Open Access book through Canterbury University Press (CUP) to
make her research freely available to those working in this area of the law.
Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence
Court Pilot contains findings from four years of research. It compares the trial process in 30 adult rape cases from 2010-2015 (in
which the defence at trial was consent) with 10 cases from the Sexual Violence Court Pilot heard in 2018 (the pilot was
established to reduce trial delays and improve the courtroom experience for complainants, particularly children).
Importantly, Professor McDonald was able to access audio records of rape trials. These contained additional material not
included in transcripts, such as instances when a complainant was too distressed to continue giving evidence. This
unique approach has effectively opened the court room door on rape trials and shed light on how and why they still often
re-traumatise complainants.
From the beginning of the research, Professor McDonald “was determined that it would not just amount to yet another
demonstration of how the criminal justice system does not do right by rape victims. Rather, it might demonstrate how the
adversarial trial process could be different, could provide fair trial process for both complainants and defendants, and
not continue to be one of the reasons for the extraordinarily high attrition rates.” (An attrition rate is the amount of
convictions resulting from reports of a crime).
Her determination to lessen potential harm to complainants has seen her use highly detailed research to make very
practical reform recommendations to the whole life-cycle of the trial.
Rape myths, however, are still too often mired in confusion about consent and, despite greater awareness of consent in
society, these myths persist in courtrooms. “The old stuff about what was she wearing, why didn’t she struggle, why
didn’t she call out, why didn’t she go the police straight away? These questions are still being asked.” Professor
McDonald says.
The book is an invaluable resource according to Professor Vanessa Munro (University of Warwick, UK) and Associate
Professor Julia Quilter (University of Wollongong, Australia), who wrote the foreword; “This book is detailed in its
analysis, rich in its insights and far-reaching in its implications. It should be read by anyone involved in, or
concerned about, the handling of sexual violence allegations in contemporary criminal justice systems, in and beyond
Aotearoa New Zealand – whether as a judicial officer, legal practitioner, government policy officer or academic …
Elisabeth’s work is absolutely essential if we are to improve the experience of complainants in rape trials – and to
make a dent in the ‘brutal old days’ that are, unfortunately, still with us.”
With the digital version available for free online, the 586-page report makes an important contribution to our
understanding of how victims of sexual offending are impacted by the trial process.
Professor McDonald brings the full weight of her expertise to the book, but writes for a wide audience so that sector
workers, victim support agency workers, policy makers and students of law, criminology, criminal justice and sociology
can benefit from the insights and recommendations.
The research was funded by the Marsden Fund, the NZ Law Foundation, the Borrin Foundation and UC’s School of Law.
Paulette Benson-Greig, Sandra Dickson and Rachel Souness contributed to writing and research.
Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence
Court Pilot was launched at Professor McDonald’s UC Connect public talk: A cross-examination of rape myths on 26 February. The talk will be available on the UC Connect You Tube channel by 4 March.ENDS
Media contact: Professor Elisabeth McDonald: 027 434 3249 or elisabeth.mcdonald@canterbury.ac.nz
Or UC Communications team, media@canterbury.ac.nz, Ph: (03) 369 3631 or 027 503 0168ABOUT THE AUTHOR
Law Professor Elisabeth McDonald, at the University of Canterbury, has established teaching and research interests in
legal issues related to criminal law, criminal justice, the law of evidence, gender and sexuality. She has particular
expertise with regard to the evidential and procedural rules relating to the prosecution of sexual offences. She was
part of the New Zealand Law Foundation-funded research project which culminated in the publication of From “Real Rape” to Real Justice (VUP, Wellington, 2011). Elisabeth is widely published in the area of the law of evidence, and has been a regular
consultant to the Law Commission in this area, as well as many others. She was co-convenor and co-editor of the Law
Foundation-funded Feminist Judgments Project Aotearoa (Hart, 2017) and was appointed to the New Zealand Law Society Working Group on Harassment (2018). In June 2018, she
became a Member of the New Zealand Order of Merit for Services to Law and Education.