Insight (Proving rape) - heated barristers debate lol - repeated monday

[Jaz]

Switched on the daytime tv to eat lunch and watched Insight on sbs.

This weeks program was about rape and the criminal justice system. Its repeated again 2pm Monday.

Was really good viewing watching the SA DPP, a defense lawyer, a judge and a victims support author get into a heated debate. Watch the perspiration/teeth gnawing as they are unable yell and lose their composure since its tv :)

[GutterClown]

yeah, i saw the program too (bits of it) and sort of switched back and forth between that and whatever else was on.

it was ok, i learnt some things from it.

problem is, i went and washed down the knowledge with Coke.. so now im fudged..

[Sagacious]

As with any criminal charge the elements of Rape must be proved beyond reasonable doubt.

The elements are:

1. the accused;
2. sexually penetrated;
3. the complainant;
4. in circumstances where complainant's consent to the sexual penetration by the accused was:
a. withheld;
b. refused
c. vitiated;
d. unable to be given; or
e. withdrawn at any time after which the sexual penetration continued

The at the conclusion of the case the presiding judge must direct the jury that conviction on the uncorroborated testimony of the complainant alone is a very dangerous thing and should not be done lightly.

Also if the complainant does not make a fresh complaint (that is inform someone in authority or from whom they might seek treatment or assistance that they had been raped as soon as that opportunity arises) then the fact that no fresh complaint was made must be explained to the jury by the judge and that fact must itself be considered by the jury in their deliberations.

Consequetly Rape is a difficult charge to make stick especially in the absence of corroberation, fresh complaint or forensic evidence of elements of the offence.

The truth of the matter is that many charges of rape only proceed in these circumstances based on the admissions made by an accused when questioned by police.

Rape trials are very harrowing ordeals for the complainant too because by the time it comes to trial it is at least the fifth occasion on which the details of the ordeal are lived or relived by the complainant.

1st time the ordeal itself;
2nd time the fresh complaint;
3rd time the statement to police;
4th time at committal;
5th time at trial.

On the 4th and 5th such occasion the complainant may be extensively crossexamined abouot the story she tells and if she asserts herself to be chaste or otherwise sexually or morally conservative then it is open to the defence to cross examine her as to every act of promiscuity or sexual adventure that they can dig up about her.

I have represented many accused in rape trials and because the evidence of the offence is so dependant on the strenght of a complainant and the consistency of her story over at least four separate tellings accross a period of at least 12 months then acquittals on rape charges are relatively easy to achieve compared to other crimes.

[ewe2]

Given the difficulties that the adversarial system presents, this is one area where DNA evidence becomes vital. And even then it can be challenged.