Legislatively mandated jury directions in sexual offences cases

The processing of sexual offences through the criminal justice system has been the subject of considerable reform in recent years. These reforms have encompassed all aspects of the process and include the legal definition of sexual offences, their investigation and a range of evidentiary and procedural changes generally designed to assist complainants. A major concern has been with a clear and appropriate definition of consent. In a number of Australian jurisdictions, there are legislative provisions making it clear that failure to physically resist does not of itself constitute proof of consent. In Victoria, there is a legislative requirement that in relevant cases the trial judge give the jury certain directions designed to guide them in interpreting the evidence with regard to the complainant's consent and the defendant's belief about that consent (mandatory directions). There are also mandatory directions in the Northern Territory in respect of the issue of the complainant's consent. This article discusses these mandatory directions: their origins, their meaning and their desirability. The focus of this article is on the mandatory directions in Victorian legislation. These directions are more far-reaching than those in the Northern Territory and have been the subject of a number of judicial decisions and some academic analysis.