Rape complainants on trial: Defence questioning approaches and witness emotionality

Abstract

Sexual offending has always been a crime that is difficult to prosecute. Despite efforts to reform the criminal justice process, prosecuting sexual offending remains problematic (McDonald & Souness, 2011). In particular, the trial process has a reportedly traumatising effect on complainants, and this dissuades others from going to court. This issue is exacerbated in cases where the perpetrator and victim are acquainted. Compared to unknown perpetrators, there is more of a perceived possibility that the complainant consented. This puts her testimony under heightened scrutiny and makes her credibility all the more salient to the trial. Cross-examination therefore becomes an important point in the trial. However it is also identified as the point in the process where the complainant becomes retraumatised. While there is a consensus that the cross-examination is traumatic, no studies have analysed how trauma unfolds in the courtroom. This research offers some insight into aspects of cross-examination that distress complainants and potentially inhibit the prosecution of sexual offending. It uses three New Zealand District Court cross-examinations where the perpetrator is an ex-partner. The study firstly presents findings on how defence counsel construct questions and what information they house within them. It finds that defence counsel predominantly ask questions that request confirmation. These questions were used in series to construct inconsistencies in the complainant’s testimony. They were also used to mount challenges and accusations. Furthermore this study makes preliminary observations that defence counsel questions house prejudicial stereotypes about rape. Such questions misrepresent the reality of sexual offending and serve to undermine the complainant’s credibility. Secondly, the study presents preliminary findings from two cases in which the defence reissued questions in pursuit of a particular response. This occurred where the complainant resisted answering on the terms of the question. The defence treated this as inadequate and subsequently reissued the question. When defence pursued responses in this way, complainants displayed signs of emotionality in the courtroom. It was also found that after continual resistance in two cases the defence concluded the line of questioning with a three-part list. The list challenged the complainant’s credibility. This study makes preliminary observations that complainants display emotion when the counsel tells them their answers are inadequate and reissue questions repeatedly. Initial insight is offered into how defence counsel conduct the cross-examination and how it impacts the prosecution of sexual offending. This study also recommends improved education and awareness-raising for justice sector professionals to address complainant trauma and rape myths in cross-examination.