Abstract
The notion that the issue of the accused's honest belief about consent has little effect on the outcome of most rape trials has gained considerable acceptance amongst some rape law reformers. The acceptance of this claim can be partly traced to the Law Reform Commission of Victoria's study of rape prosecutions in 1991. However, properly considered, the study provides no support for this assertion. This is because of two limitations to the study: the merely cursory analysis of pre-trial decision making and the lack of plausible assessment of the jury's approach to its fact-finding task. Properly understood, the study's findings suggest a reform of the trial judge's direction to the jury, a possibility ignored in the Law Reform Commission's report. This paper argues that law reformers should pay more attention to such limitations when considering empirical research into rape prosecutions.
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