A Little Judicial Direction: Can the Use of Jury Directions Challenge Traditional Consent Narratives in Rape Trials?
For the past 25 years, Victoria has engaged in a process of almost constant creation and revision of a set of jury directions to be used in sexual offence trials. These directions, given by the judge at the conclusion of the trial, are specifically aimed at disrupting existing patriarchal social narratives that have a strong tendency to render women's claims of rape null. Research findings suggest that the directions have not been effective and that social narratives about the existence of "real rapes" (and thus, not real rapes) continue to resonate strongly in the trial. This article analyses the use of the jury directions in two Melbourne County Court rape trials held in 2010 11. Although the trials are factually similar, in one trial the judge appears to have taken a different approach to the use of the jury directions, and this article hypothesises that this approach might be causally related to the conviction in that case (where in the other trial a conventional approach was matched by an unsurprising acquittal) This article proposes that jury directions given at the conclusion of the trial come too late in the piece to disrupt problematic narratives, and that it is possible that utilising the intent behind the jury directions in early decision making, at the pre trial hearings and evidentiary rulings stages, may lead to more just outcomes.