Intoxication Evidence and the Rewriting of Sexual Assault: A Study of New South Wales Trials

This thesis examines the nature and impact of intoxication evidence in sexual assault trials in New South Wales (‘NSW’). Victim and/or perpetrator intoxication is a feature of a high proportion of sexual assaults and tends to be associated with higher attrition and lower conviction rates. Legislative reforms in NSW have sought to facilitate the prosecution of intoxication-involved sexual assault by disrupting ‘rape myth’-based reasoning that a complainant’s intoxication implies her consent, and an accused’s intoxication lessens his culpability. Through a close analysis of transcripts from 30 sexual assault trials heard in the District Court of NSW between 2014 and 2019, this thesis traces the myriad ways in which intoxication evidence is drawn upon in sexual assault trials and the extent to which legislative provisions relating to intoxication are shaping trial practice in NSW. My analysis finds that legislative provisions relating to intoxication were of limited impact and that, more commonly, intoxication evidence was drawn upon for purposes that sit in direct tension with the legislative scheme. The Crown seldom relied upon complainants’ intoxication as a basis for their non-consent, whereas defence counsel relied heavily upon intoxication evidence to advance their case in multiple – often contradictory – ways.Drawing upon feminist insights on the gendered underpinnings of sexual assault law, my analysis of these uses of intoxication evidence reveals powerful interactions between rape myth-based reasoning and contestable assumptions about the effects of alcohol and other drugs. Poorly evidenced claims about the effects of intoxicants on memory and sexual behaviour facilitated the wholesale denial of complainants’ competence to speak to their own experiences and their sexual will, and the stark rewriting of their accounts of victimisation as narratives of active and enthusiastic participation. A systematic analysis of the strategies employed to achieve this rewriting found that intoxication both enhanced the efficacy of tools within the ‘classic’ defence repertoire, as well as providing an additional suite of intoxication-specific tools for silencing and discrediting complainants. Intoxication aided in classic rape myth-based attacks on complainants’ accounts – for example, scrutinising their ‘failure’ to demonstrate rape-preventing behaviour, lack of resistance, and inability to demonstrate perfect recall. At the same time, intoxication was also used to advance wholly contradictory narratives of complainants’ active sexual instigation. The diversity of the arguments for which intoxication evidence was engaged, and the extent to which they diverged from straightforward appeals to classic rape myths, highlights the complexity of formulating legislative reforms that will meaningfully improve the prosecution of intoxication-involved sexual assault.