By Kyle Maxwell

*Content Warning: This article includes discussion of sexual offending that may be distressing. Reader discretion is advised*

Introduction

All New Zealanders have a civic responsibility to serve as jurors if called upon. It is a hallmark of our democracy that all of us have the right to be tried by a group of our peers if we are accused of a serious offence. If asked to serve upon a jury, we are expected to evaluate all the evidence put before us with an open mind and free from bias.

The difficulty is that humans are not objective. Our experiences and emotions impact how we interpret the world around us. Many of these experiences are helpful in piecing together pieces of evidence. However, we also hold many beliefs that are simply incorrect. Such beliefs are particularly widespread when it comes to sexual offences.

A recent report by the Institute of Judicial Studies responded to many of these misconceptions and this article breaks down four of the most substantial misconceptions identified. This article focuses on rape and unlawful sexual connection as the misconceptions primarily relate to these offences.

What Sexual Offending Actually Requires

The first false belief around sex offending is that if the complainant did not consent to the sexual act, then the accused is guilty. However, there are two further questions that must be asked.

The first is a subjective test: at the time of the offence, did the accused believe that the complainant was consenting? If not, the offence is complete. 

The second is an objective standard: would a reasonable person in the circumstances of the accused think that the complainant was consenting? Again, if the answer is no, the offence is complete.

Failure to Resist

70% of women freeze when sexually assaulted. However, there is a common misconception that a true victim of sexual offending would have resisted the offender. Jurors also strongly and wrongly believe if the complainant knows their attacker they are more able to fight back as the attack is supposedly less fear-inducing.

Alarmingly, this misconception is often at play in trials as three-quarters of victims know their attacker. This misconception is also based on the wrongful assumption that most assaults involve physical force, and therefore the victim should physically fight against that force.

The presumption that a victim will resist is riddled with poorly placed beliefs. Firstly, a review of 2000 New Zealand Police sexual assault files identified that victims are only subject to force 28% to 52% of the time. Immediately, the idea that a victim must resist a physical overpowering to be a true victim is dispelled: most victims are subject to no such violence in the first place. 

The Law Commission further found that not resisting is very common and often beyond the victim’s control, with many losing control of aspects of their movement. Some victims will also attempt to befriend the attacker for their own safety.

For example, in the case of R v Adams, the offender (ex-partner) broke in through the window of Adam’s house and cornered her in the bedroom. With no prospects of escape, Adams decided the best course of action was to get it over with as quickly and safely as possible, asking him to use a condom. Misconceptions regarding a failure to resist present a real risk in contexts such as these, where the victim could be penalised for choosing the safest path for themselves. 

“Real Rape” Requires Injury

Many jurors expect a victim of sexual offending to suffer genital injury (particularly female victims). This misconception is typically based on the belief that non-consensual sex is physiologically destructive due to a lack of sexual excitement on behalf of the victim. Jurors can view a lack of injury as evidence of arousal, and therefore think the victim was consenting. 

In reality, vaginal tissue is extremely resilient and flexible and any injury is likely to be minor bruising or grazing that will heal within days and go unnoticed in any medical examination. Additionally, non-consensual stimulation is fully capable of triggering blood flow to genital areas (“arousal non-concordance”). As such, not only will people of any gender  often be uninjured but they may also orgasm. It is critical to understand that neither of these indicate consent: it is simply a physiological reaction. 

As for non-gential injury, given the common lack of resistance and that most offences do not involve the use of force or a weapon, it is normal that a victim will not be injured at all. Again, this is not evidence of consent. 

The Prevalence Of False Allegations 

The most basic juror misconception regarding sexual offending is that women often lie about rape. It is so widespread that only one in five respondents to the 2017 Gender Attitudes Study disagreed with the statement “false rape accusations are common”. 

A 1983 study found that over half of men agreed with the idea that rape is “easy to allege and difficult to disprove”; this idea is the basis of views that complainants frequently lie about sexual offending. While times have since changed considerably, a sample of 40 rape trials between 2010 and 2018 revealed that statements to the same effect are put forward by the defence in nearly half of cases. 

Alongside the rational observation that being forced through a justice system that mandates the constant reliving of a traumatic experience is anything but easy, there is a plethora of evidence proving false accusations are anything but common. 

In one 2005 study of 2700 cases, only 3% of complaints that were classified as possibly or probably legitimate by police were ultimately deemed false. Only six led to an arrest and two of those resulted in charges being pressed. So, out of the nearly 3000 complaints to police, only two of those resulted in charges. That’s 0.067% of complaints. 

By the time a case goes before 12 jurors, it is clearly highly improbable that a lying complainant would not have already been weeded out. However, it is still to be determined whether the offence ultimately satisfies the legal elements of sexual offending.

Conclusion

Humans cannot be expected to ever truly evaluate someone’s innocence from a purely objective standpoint. It is impossible to strip away the experiences and values that form the basis of our perspective on life, through which we interpret evidence. However, by informing ourselves about the reality of sexual offending, we can vigilantly safeguard against misconceptions clouding our judgement. Nowhere is this more important than when we are asked to judge one of our peers.

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