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Source: University of Canterbury

07 March 2022

Acclaimed law researcher Professor Elisabeth McDonald’s new book, In the Absence of a Jury: Examining judge-alone rape trials, is the second in a trilogy of open-access resources to be published by Canterbury University Press (CUP).

  • “All people should be able to participate in legal processes which do not have negative impacts,” says University of Canterbury Adjunct Professor Elisabeth McDonald, whose new book seeks to lessen the harm experienced by victims of sexual offence.

Professor McDonald’s award-winning 2020 book Rape Myths as Barriers to Fair Trial Process opened the courtroom door on rape trials to investigate how and why they re-traumatise complainants. She says this new book “responds to the calls for improving the experience of complainants in rape and sexual assault cases by changing the fact-finder – in particular, by replacing the jury”.

“This research, made possible by privileged access to case materials, compares the experience of adult complainants in rape trials heard by a judge sitting alone with the experience of those in jury trials.”

An adjunct professor in the University of Canterbury’s Faculty of Law, Professor McDonald’s research is the first in the world to specifically compare jury trials involving rape allegations with trials heard by a judge only. The research provides further support for the argument there are more changes to be made.

“There have been decades of well-intentioned procedural and substantive law reform specifically aimed at reducing the harm caused by the trial process in rape cases. The Sexual Violence Legislation Act 2021 is the latest example – although primarily informed by research completed in 2011,” Professor McDonald says.

“So there has been progress but it is slow and not completely effective. All people should be able to participate in legal processes which do not have negative impacts, and as we know more about the effects of trauma – including Traumatic Brain Injuries and Adverse Childhood Experiences – the more the justice system should respond.

“As I conclude in the book, the current adversarial trial process, regardless of who is the fact-finder, continues to have negative impacts on complainants in sexual assault cases. It is time for the Government to seriously consider the work done by the Law Commission in 2012 as a starting position for reform of trial process, for the benefit of all, including defendants.”

Looking at the wider issues, she notes that “in the particular context of the law’s response to gendered harm, improving trial process is just one aspect – prevention and education must also be a priority, and as such will have flow-on effects to the prosecution of such offending”.

In a distinguished career that has earned her the New Zealand Order of Merit among other accolades, Professor McDonald’s work has focused on how sexual offence crimes are prosecuted. She is motivated by improving the experience of rape trial victims.

“Every book McDonald writes in this area becomes required reading for those working in our criminal justice system or who are concerned about how it approaches allegations of sexual violence. This latest is no exception,” criminal lawyer Andrea Ewing says.

Publisher Catherine Montgomery says, “CUP was again privileged to collaborate with Professor McDonald on a publication which, like Rape Myths as a Barriers to Fair Trial Process, has the potential to contribute to positive social change in Aotearoa.

“The research is also making an impact internationally – for example, early findings are being considered by the Scottish Government in responding to recommendations of the 2021 Dorrian Report. This new book will be of interest primarily to lawyers and judges but also sector workers, victim support agency workers, policymakers and tertiary students and we’re grateful for the support from the NZ Law Foundation  and UC’s Faculty of Law which has enabled this easy-to-use, interactive online edition to be freely accessible to all.”

In the Absence of a Jury: Examining judge-alone rape trials, by Elisabeth McDonald, published by Canterbury University Press, March 2022, OpenAccess pdf file, 373pp, ISBN: 978-1-98-850332-5


About the Author:

Elisabeth McDonald MNZM is an independent legal researcher and Adjunct Professor of Law at the University of Canterbury. She has taught and published in the areas of sexual and family violence, law and sexuality, criminal law and the law of evidence for over 30 years, as an academic and as the Policy Manager for the evidence law reference at the New Zealand Law Commission. Elisabeth is the author of a number of evidence law textbooks and online legal resources, including Rape Myths as Barriers to Fair Trial Process (2020), and is co-editor of From Real Rape” to Real Justice (2011) and Feminist Judgments Aotearoa: Te Rino, the Two-Stranded Rope (2017).

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