Differences in accounts and the ‘lying’ complainant: A qualitative study of rape trials from Victoria, Australia

Abstract

It is now well recognised that victims of sexual offences may recount events differently at different times and to different audiences and that variations, gaps or ‘inconsistencies’ are not necessarily indicative of lying or unreliability. Incorporating this knowledge into the criminal trial now forms part of the wider reform agenda in a number of jurisdictions, including via recommended jury directions. This is now expressly reflected in provisions like s 54D of the Jury Directions Act 2015 (Vic) – introduced in 2017 – which provides for an educative direction on how the jury should (and should not) consider differences in the complainant's account. Drawing on rare access to sexual offence trial transcripts, this article reports on the findings of an analysis of 33 rape trials finalised in the County Court of Victoria between 2013 and 2020. We found that complainants were still regularly cross-examined, and the quality of their evidence challenged, on the basis of differences in their accounts. We found little evidence that the availability of a jury direction has shifted the defence practice of evoking the ‘lying complainant’ by pointing to ‘inconsistences’ in their evidence.