NCJ Number
74362
Date Published
1980
Length
10 pages
Annotation
Amendment 341 of the South Australian Evidence Act restricting the evidence admissible in rape cases is examined and improvements are suggested.
Abstract
The amendment provides that (1) statements made by the victims after the time of the offense or other than in the presence of the accused are inadmissible, (2) the sexual experiences and morality of victims shall not be adduced, and (3) judges may introduce such evidence if they consider it relevant to the issue. The amendment has met with considerable criticism with regard to the definition of 'evidence' and the consent issue. Furthermore, South Australian legislation bars only evidence of the victim's sexual experiences prior to the date of the alleged offense and only protects 'alleged victims.' Earlier victims giving evidence of rape perpetrated by the accused would be liable to cross-examination. Finally, complete discretion of introducing evidence remains with the judge, and in previous cases five such examples have already been itemized: (1) if the accused believes his victim was consenting, (2) if the accused contends that the victim made a false accusation, (3) if the consent issue is involved, (4) if the complainant is experienced or sophisticated, and (5) if medical evidence implies that the complainant has had previous intercourse. The article, however, contends that sexual evidence should only be admissible if (1) specific acts are involved, (2) those acts have similar characteristics as to the conduct of the participants, (3) the pattern of conduct is not remote in time to the court case, (4) the evidence is necessary to the proper conduct of the accused's defense, or (5) the probative value of the evidence outweighs the prejudicial effect. The article concludes that the ordinary rights of the accused have been misused to the detriment of complainants. The article includes footnotes and 18 reference notes. For related articles, see NCJ 74354.