Judges' directions to juries in rape cases should perform an educative function by clarifying the law and establishing appropriate standards for sexual relations guided by sexual autonomy, communication and respect. Since the 1990s, rules governing jury directions have been substantially reformed in Victoria. While these reforms were designed to minimise outdated perceptions of rape and ensure consistency and clarity in their delivery, the complex nature of rape law has instead led to a set of convoluted and confusing jury directions. Not only has this placed unreasonable expectations on jurors to understand the meaning of consent and the fault element of this offence, but the high number of appeals and overturned convictions resulting from judicial misdirection indicates that the law is not achieving its primary goals. This article examines the jury directions on consent in Victoria and some of the key problems that have ensued. We argue that the confusion within the law has led to equally confusing jury directions, and this serves to compromise and undermine the purpose and achievements of rape law reform over the past two decades.
Read full abstract