Prosecuting Intimate Partner Rape: The impact of misconceptions on complainant experience and trial process
Elisabeth McDonald(Also available as OpenAccess pdf file)
The high level of family violence in Aotearoa New Zealand presents a systemic and resistant challenge for the criminal justice system. While much legal and social-science research focuses on the prevention of, and response to, family violence, there is a noticeable dearth of work examining the prosecution of serious sexual and physical violence that occurs within an intimate relationship. Prosecuting Intimate Partner Rape addresses that gap.
Comparative analysis of 20 intimate partner rape trials (both with a jury and judge-alone) provides the basis for wide-ranging proposals to reform law and practice with the aim of improving complainant trial experience. The work also demonstrates how essential it is for sexual violence within a relationship to be recognised and responded to as a distinct and significant form of harm – in particular there is a pressing need for fact-finders to consider (and be assisted to understand) the nature of consent within a context of coercive control.
Prosecuting Intimate Partner Rape will be invaluable for those working in, or with interest in, the prosecution of sexual offending and family violence and reform options. It provides commentary of use to lawyers and judges in their practice but is written to be accessible to sector workers, victim support agency workers, policy makers, and students of law, criminology, criminal justice and sociology.
“This is the third and final volume in this extraordinary series documenting the analysis and findings from a project undertaken over eight years in Aotearoa New Zealand…The addition of the analysis of the audio recordings to that of the transcripts has allowed Elisabeth to make connections between the style of the question or intervention and the impact on the complainant, for example identifying and considering the meanings of the complainant’s silences, her anger, and her distress. This approach enables a much more nuanced understanding of the experience of the questioning and the trial process from the complainant’s perspective and significantly enhances the depth of the analysis. Importantly, it also shows potential ways to improve the victim-survivor’s experience of the trial process.” From the Foreword by Professor Heather Douglas AM, University of Melbourne
The Michael and Suzanne Borrin Foundation generously funded the research and publication.
Elisabeth McDonald MNZM is an Adjunct Professor of Law at Te Whare Wānanga o Waitaha | University of Canterbury. She has taught and published in the areas of sexual and family violence, law and sexuality, criminal law and the law of evidence for over 30 years, as an academic and as the Policy Manager for the evidence law reference at the New Zealand Law Commission. This book is her third in a trilogy which includes In the Absence of a Jury: Examining judge-alone rape trials (2022); and the award-winning Rape Myths as Barriers to Fair Trial Process (2020). Elisabeth is also co-editor of From “Real Rape” to Real Justice (2011) and Feminist Judgments Aotearoa: Te Rino, the Two-Stranded Rope (2017).
The wider research team supporting this work included Paulette Benton-Greig, Sandra Dickson and Rachel Souness.