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Professor Elisabeth McDonald recently released the second of three books in her work spanning 10 years on examining trial processes in rape cases: In the absence of a jury: examining judge-alone rape trials.

Calls for changes to the trial process in rape cases, including removing the jury as fact-finder, have been consistent over time and across jurisdictions. Reform advocates have focussed on the high rates of attrition (across rates of reporting, prosecuting and conviction), as well as on the harmful trial experiences recounted by complainants. Increasing numbers of those working within the criminal justice system – police officers, lawyers, forensic experts and judges – are publicly supporting even radical changes, including providing alternatives to the prosecution of rape cases and non-adversarial trial processes. Such conversations are currently occurring in Aotearoa New Zealand in a context of many judicially-led therapeutic court initiatives, including the recently launched Te Ao M?rama.

This book is the second of three publications which describe what can be observed when the door to the courtroom is metaphorically opened to researchers during adult rape trials. Through the privilege of being granted access to case files, the transcripts and audio of complainant evidence in more than 70 trials over a 10-year period have been examined. Possible reforms within the existing adversarial trial process in adult rape cases were proposed at the conclusion of a related piece of research (funded by the Foundation) published in 2020 – Rape Myths as Barriers to Fair Trial Process.

A number of the recommendations, and the underlying case analysis, influenced the final drafting of the Sexual Violence Legislation Bill 2019 (NZ), the Solicitor-General’s Guidelines for Prosecuting Sexual Violence and appellate decisions on rules of evidence and procedure. The 40 adult rape cases considered in that publication were all jury trials, in which the issue was consent. This comparative piece of work examines whether complainant experience is different, and to what extent, when the fact-finder in such cases is the trial judge. It focusses on the experience of complainants in eight judge-alone trials, as compared to 30 jury trials in the first book. Forthcoming work in 2023, will analyse 15 jury trials and seven judge-alone trials in order to document the experiences of adult complainants who allege they were raped by their intimate partner.

In the absence of a jury: examining judge-alone rape trials can be viewed online or downloaded here (pdf 374pp)

The Law Foundation contributed $80,101.57 towards the research and making this book available free online.