5 / 4 / 2024

Challenging misconceptions about sexual offending - Has the law gone too far?

There are many ‘rape myths’ that are often prevalent in sexual assault trials, from the type of clothes women wear, to their prior sexual experience denoting consent.

One of the ways the law attempts to combat these misconceptions is by preventing evidence of prior sexual experience (or lack thereof) being introduced in sexual assault trials. The governing legislation is section 294CB of the Criminal Procedure Act 1986 (NSW).

This section states that:

(3) Evidence that discloses or implies–

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

There are notable exceptions, under section (4) these exceptions include situations where the evidence was at or about the time of the alleged offence, events forming part of the circumstances in which the offence was committed, relationships between the accused and the complainant and so on. There is also a further test that the probative value must outweigh any potential distress or embarrassment to the complainant.

However, taken to its most extreme example, this legislation has led to injustice by preventing the introduction of evidence of prior verified false complaints of sexual assault.

In Jackmain (a pseudonym) v R [2020] NSWCCA 150 the accused was prevented from adducing evidence about the complainant’s past false complaints. The complainant had previously made 12 false allegations of sexual assault that would have been significant in the question of her credibility when assessing whether the allegations were proved beyond reasonable doubt.

Under the previous section (293) the previous false allegations were precluded from admission without allowing for any judicial discretion. As such, the evidence was never put before the jury.

At 558 the Allen J critically noted that in its current form, the judiciaries hands were tied:

“The wisdom of so Draconic a restriction upon judicial discretion and of so bold an assumption of perfect prescience may be questioned. The courts must apply, however, the law as enacted. If the present case has thrown up an instance of injustice or of possible injustice indicating the desirability of a further exception to the blanket prohibition the exception must be one enacted by Parliament. It is not for the courts to usurp its role”.

Whilst this section has inherent advantage with changing people’s perception when it comes to outdated assumptions about peoples past sexual proclivities, it raises a question about whether the curtailing of discretion is a necessary safeguard, or rather does the inability to cater to individual situations necessitate injustice.

Rebecca Kriesler, Senior Lawyer