Communicating Absence of Consent is not Enough: The Results of an Examination of Contemporary Rape Trials

Abstract

In a study of 40 adult rape jury trials, aimed at identifying how and why the questioning process in rape trials results in re-traumatisation, researchers noticed how often adult women complainants gave evidence of clearly expressed lack of consent – through words or conduct or a combination of both. In 26 cases the complainant also gave evidence of multiple attempts to negotiate the desired limits of sexual intimacy. Her evidence was challenged in cross-examination and during closing arguments by emphasis on aspects of her conduct argued to be indicative of consent. Clearly articulated absence of consent was not a predictor of convictions, even in the Aotearoa New Zealand Sexual Violence Court Pilot. Only 13 of these 26 cases resulted in a guilty verdict. In this article, I will examine how the narratives about consent in recent adult rape trials illustrate the ongoing significance of feminist critiques of the concept, particularly its efficacy regarding gendered sexual violence, as well as counselling caution about expectations of a reformed definition of consent.