Judges as myth-busters: a re-examination of jury directions in rape trials

Abstract

ABSTRACT The Victorian and New South Wales Law Reform Commissions (‘the Commissions’) have recently heralded jury directions as a solution to ‘counter and correct’ rape myths in the courtroom. The Commissions recommended several new directions and espoused considerable optimism in their power to transform rape trials. These recommendations are driven by an unscrutinised rationalist agenda, which assumes that rape myths can be corrected. In response, this article maps out an empirical and theoretical re-examination of jury directions and their ability to ‘counter’ rape myths. This article draws on the theoretical works of Pierre Bourdieu and Roland Barthes to scrutinise this construction of myths and the assumption underpinning the recommendations. By doing so, this article argues that the confidence espoused by the law reform bodies is misguided.