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The `Ideal' Victim v Successful Rape Complainants: Not What You Might
Expect

Article  in  Feminist Legal Studies · May 2002

DOI: 10.1023/A:1016060424945

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 WENDY LARCOMBE

THE ‘IDEAL’ VICTIM V SUCCESSFUL RAPE COMPLAINANTS:

NOT WHAT YOU MIGHT EXPECT

ABSTRACT. This article proposes that feminist legal critics need to be able to explain
how some rape cases succeed in securing convictions. The means by which rape cases are
routinely disqualified in the criminal justice system have received widespread attention. It
is well established in feminist legal critique that female complainants are discredited if they
fail to conform to an archaic stereotype of the genuine or ‘real’ rape victim. This victim is
not only morally and sexually virtuous she is also cautious, unprovocative, and consistent.
Defence tactics for discrediting rape testimony involve exposing the complainant’s alleged
failure to comply with the sexual and behavioural standards of the normative victim.
This understanding of how rape complain(an)ts are disqualified is not predictive,
however, of the complainants whose cases succeed in securing convictions. This article
reviews some successful Australian rape cases and considers the ways in which they
disturb feminist understandings of how rape complaints are discredited in the criminal
justice system. It proposes that recent research analysing the discourse of rape trials
provides a way of explaining the apparent discrepancies between the ‘ideal’ rape victim
and successful complainants.

KEY WORDS: complainant, discourse analysis, rape, rape defences, rape victim, resist-
ance, sexualisation, trial process

I NTRODUCTION

It is a matter of record that rape complaints are routinely filtered out or

discredited within the criminal justice system.1 Not all complaints fail,
however. Occasionally, the criminal justice system demonstrates that it also
has the power to legitimise a woman’s rape complaint. I am interested here
in both these processes – disqualification and validation – and want to re-
examine not only how rape complaints are discredited but also how some
1 Attrition rates for sexual assault cases are estimated to be as high as 90% (Carmody
and Carrington, 2000, p. 345). Heenan and McKelvie’s study (1997) found that in Victoria,
Australia, a person is charged in only around 40% of instances of reported rape. The Office
of Public Prosecutions will then only proceed with between 20% and 30% of those charges
and, even so, less than 44% of rape offences prosecuted result in convictions (p. 13).
Disturbingly, that conviction rate has declined sharply since a number of reforms were
introduced in 1991 to assist rape victims. In 1988-89 the conviction rate in prosecuted rape
cases was 46%; between 1997 and 1999, less than 25% of people charged with rape were
convicted (Farrant, 2001, p. 1).

Feminist Legal Studies 10: 131–148, 2002.

© 2002 Kluwer Law International. Printed in the Netherlands.
132 WENDY LARCOMBE

gain credence and convictions. In particular, this article considers whether

successful rape cases confirm or challenge feminist understandings of the
way rape testimony is discredited when the complainant’s conduct and
character are maligned.
Paradoxically, in rape law, the ‘wins’ are often just as problematic
for feminist critics as the wholesale discrediting process. No matter the
statistical weight behind the feminist argument that the processes of
disqualification are systemic and entrenched, the occasional cases that do
succeed enable apologists for the criminal justice system to argue that
the legal process does work. The successful cases also make it difficult
for survivor-advocates in women’s legal services and rape crisis centres
to know how best to advise individual complainants. While most rape
prosecutions will not secure a conviction, it is harder than might be thought
to predict which rape complaints will succeed.2
Every rape survivor has the right to make a criminal complaint; the
question is whether it is in their best interests to do so. Falling back
momentarily on the sporting metaphors that so often govern discussions
of sexual behaviour, rape complaints ‘qualify’ within the criminal justice
system and complainants are reassured that they can contest, and possibly
even ‘win’ the contest, prior to and as a necessary condition for their
disqualification. It is not a fair contest and this article reviews the means by
which complaints of rape are systematically, but not inevitably, discredited.
Its aim, however, is to consider how the discrediting process may be
resisted.

1. VALOURISED V ICTIMS

The rapes that are legitimated within the criminal justice process – ‘real’
rapes as Susan Estrich (1987) has called them – are a small and unrepre-
sentative minority of sexual assaults. A case is more likely to succeed if
it is clearly interpretable as violence: if the assailant is a stranger, if a
weapon is used, if the victim/survivor’s resistance is overt and physical
injury is sustained and documented.3 If it is advantageous for the rape to
be a ‘real’ one, as Kim Stevenson discusses in a recent issue of this journal,
2 The term ‘succeed’ is used ironically here and throughout this article, in view of the
fact that even when cases are ‘won’ in the criminal justice system the complainant is often
unsatisfied with the process and her treatment (see Heenan and McKelvie, 1997, p. 249).
3 The majority of reported rapes do not fit this description, however: the parties know
one another; extrinsic force, coercion or evidence of violence is absent; weapons are
not present. See Estrich (1987); Victorian Community Council Against Violence (1991);
R.R.L.C. (1992).
 THE ‘IDEAL’ VICTIM 133

it is arguably even more vital that the rape complainant be an “unequivocal

victim” (2000, pp. 343–366). The complainant’s conduct and behaviour
must “conform to prevailing societal expectations, as understood by the
legal system” (p. 347, emphasis in original). The legal understanding of
prevailing expectations is neither contemporary nor realistic. Stevenson
contends that the law has generally reinforced “the stereotypical ideal of
female vulnerability and the patriarchal concept of woman as property”
(p. 351). In particular, she argues, “Victorian stereotypes and expecta-
tions of feminine behaviour have had, and continue to have, profound
implications for the ways in which modern women are regarded in the
trial process” (p. 345).
Stevenson’s analysis is borne out by the comments of some Australian
judges. In Attorney General v. Harris,4 for example, the ‘real’ rape victim
is represented in classic terms by Starke J. as “a happily married woman
living in a flat in the absence of her husband when the miscreant breaks
in and commits rape on her” (p. 7). In R. v. Webb,5 the court described
the legitimised complainant in similar terms: “the victim was a married
woman . . . an ordinary decent housewife . . . A decent young married
woman providing no advances or no provocation whatever . . . subjected
to what can only be described as a completely unjustified and thoroughly
outrageous experience” (p. 153). Clearly, the construct of the rape victim
valourised here invokes a particular ideal of woman: chaste, sensible,
responsible, cautious, dependent.
This valourised victim speaks of woman as a sex and reproduces the
generalized construct of the ‘natural’, biological woman vulnerable to, and
physically weaker than, her male counterpart. Although the victim in this
sense is everywoman, she is not any woman. Being a liberal construct,
she appreciates the risk of rape and takes all sensible and logical precau-
tions to avoid creating the opportunity for such an attack. She modifies
her behaviour to exhibit caution about entering sexual interactions; she
exhibits a reasonable suspicion of all men until their true character can be
observed; she fears being out of control.6 Just as the legal perpetrator of
rape must act appreciating the risk that the victim might not be consenting,
the legal victim of rape is similarly held to determine her actions by virtue
of rational decisions premised on risk assessment. In other words, the

4 Unreported, Victorian Court of Criminal Appeal, 11 August 1981.

5 [1971] V.R. 147.
6 The legal requirements and expectations of a ‘reasonable’ rape victim are discussed
at length in Bronitt (1998); Schafran (1993, pp. 1024–1026); Temkin (2000, pp. 231–235).
For disturbing results of a survey on community attitudes about when a woman ‘deserves’
to be raped, see Conroy (1998).
134 WENDY LARCOMBE

real or unequivocal rape victim not only experiences abuse and violation
through an act of sexual penetration, she also anticipates sexual domination
and powerlessness. She appreciates the risk of rape as a social fact and, in
logical fashion, modifies her actions so as to minimise her exposure to that
risk.7
The idea of the ‘real’ rape victim’s normative conduct and response to
rape informs all levels of a rape trial but is, of course, raised with particular
intent and purpose by the defence as a standard means of discrediting the
complainant and her testimony. The defence barristers in Temkin’s study
had normalised this process: all they did was “set ‘foolish’ behaviour
against behaviour which conformed to ‘common sense’ ” (p. 232). More
accurately, Gregory Matoesian explains that defence cross-examination in
a rape case inevitably “involves categorization work specifically designed
to create a disjuncture between the victim’s actions on the one hand, and
the requirements of normative and socially structured incumbency in the
category victim on the other” (1993, p. 30). It is through the disjuncture
between the complainant’s behaviour and that attributed to the norma-
tive victim that much “blame work” is performed, Matoesian argues.
Moral inferences are generated from the survivor’s “violation” of the
“normatively appropriate and structurally required category-bound activ-
ities, knowledge, and obligations” an unequivocal victim needs to observe
(p. 104). In other words, rape testimony is systematically discredited by
making it appear that the complainant did not do what the simultan-
eously constructed, valourised – and hypothetical – victim would have
done.
The complainant’s failing is engineered, it must be stressed. Anyone
would have difficulty conforming to the requirements of ‘common sense’
or the normative behaviour of the ‘ideal’ victim, as becomes evident when
we examine a couple of the tried and true defence strategies used to
discredit rape complainants.

2. FAVOURITE WAYS OF D ISCREDITING R APE C OMPLAINANTS

As a number of feminist critics have identified, the legal discovery of

rape becomes a test of the complainant’s character and credit, particu-
larly in terms of her sexual morality but also in relation to her moral
7 Of course, the expectation that a woman should avoid ‘risky’ situations, and the
consequent construction of any failure to foresee assault as ‘asking for it’, naturalises
male sexual aggression and puts responsibility for the assault on the victim not the perpe-
trator.
 THE ‘IDEAL’ VICTIM 135

integrity and trustworthiness as a witness.8 In fact, credibility and sexu-

ality are inextricable in a rape trial where, as Carol Smart discusses,
doubts about the complainant’s testimony are routinely generated and
women’s experiences of sexual abuse discredited when the events of the
rape are reproduced as a pornographic vignette (1990, p. 16). “The more
an account of rape has resonances with the standard pornographic genre,
the less it will be regarded as rape”, Smart observes, explaining that the
problem is compounded by the fact that the standard sexual fantasies of
soft pornography have a common currency as “the imagined substance
of other people’s sex lives” (pp. 16–17, emphasis in original). Several
fantasies are particularly well known and frequently employed by defence
barristers: the girl who initially says no but when her resistance is over-
come, becomes sexually voracious; the girl who appears demure but
then surprises with her appetite for sexual adventure; the girl who likes
“vigorous”, “athletic”, or frankly “rough” sex and prevails on the man
to satisfy these desires. Importantly, through such alternate pornographic
stories, evidence of violence and resistance – torn clothing, disarranged
furniture, bruising – can be re-signified as consistent with consensual sex.
Smart concludes that “[t]he process of the rape trial can be described as
a specific mode of sexualization of a woman’s body” with the precise and
intended effect of disqualifying her testimony and experience of sexual
assault (1995, p. 84). The complainant is re-scripted as a precipitating
agent within a sexualised scenario, effectively disqualifying her from
victim status and obviating the accused’s responsibility for the events in
question.
Contemporary rape shield legislation provides complainants with some
protection from prejudicial cross-examination about sexual experiences. In
Australian jurisdictions, defence barristers are required to seek the court’s
permission before cross-examining a complainant about her prior sexual
experiences. Henning and Bronitt (1998) report, however, that the required
permission is not difficult to obtain and, in any event, such questioning
is often conducted without the court’s leave being sought and without
objections being raised by the prosecution. Despite this, some rape shield
legislation in Australia, as in Canada, is under attack as offering the victim
“too much” protection (Fife-Yeomans, 1998, p. 3).
Tightening the rape shield provisions may not improve the com-
plainant’s lot significantly, however, as there are currently no restrictions
on cross-examining a complainant about personal or sensitive matters that

8 See Mack (1993); Scutt (1998). As Susan Edwards notes, the cross-examination of
the complainant as to her sexual and moral character became increasingly detailed and
onerous over the course of the nineteenth century (1981, p. 22).
136 WENDY LARCOMBE

are similarly damaging to her credibility as a witness – matters such

as substance or alcohol abuse, a history of incest, shoplifting, mental
illness and so on. In a rape prosecution the investigation, and particularly
cross-examination, probe into and penetrate (and the sexual metaphors
are obligatory here) all aspects of the complainant’s domestic, social,
and professional life in an attempt to discover or at least disparage her
‘true’ character. In order to secure a conviction for rape it seems that,
increasingly, a woman must be prepared to endure an unprecedented level
of scrutiny, not of her sexual history necessarily but of her private and
personal records.
Elizabeth Sheehy (1995) was among the first to document this “latest
crisis” to befall feminist reformers of sexual assault law. Seemingly in
response to feminist successes in substantive law, she explains, defence
lawyers adopted a new procedural strategy:
This is the strategy of using requests and legal demands to gain copies of women’s records,
all kinds of records: therapeutic records, crisis records, psychiatrists records, hospital,
birth control, abortion, residential school, juvenile records, immigration, family court, and
school – at all stages in the criminal prosecution. (p. 20)

On the basis that the accused is entitled to all possibly exculpatory

evidence as part of his right to a fair trial, defence counsel are being
allowed to conduct fishing expeditions – with the sanction and assistance
of the judiciary and police. Any and all of a complainant’s records, whether
they are in the prosecution’s possession or not, may be subpoenaed if
thought relevant to the accused’s defence.9 “There seem to be no limits
in terms of the ways in which women’s records can be used against
us” (p. 21), Sheehy warns, citing the 1993 Canadian case of Osolin,
where therapeutic notes recording a victim’s self-blame were used to
bolster a defence of belief in consent. In Australia, previous sexual assault
complaints, histories of incest or other abuse, histories of depression or
mental illness, previous employment in the sex industry, and general self-
blame and doubt about responsibility for the rape at issue have all been
exposed through defence use of counselling records, to the complainants’
disadvantage.10
Of course, the exposure of intimate and personal details about the
complainant has long been a relentless and calculated defence strategy.
Defence lawyers openly discuss the desirability of “whacking” – that is,
intimidating or humiliating – the sexual assault complainant at the prelim-
inary inquiry in an attempt to have her drop the charge (Sheehy, 1995,
9 The use of records and attempts to restrict such use in Australian rape cases is
discussed by Allen (1995); Bronitt and McSherry (1997); Bronitt (1996); Cossins (1998).
10 Supra note 9.
 THE ‘IDEAL’ VICTIM 137

p. 22). Subpoenaing all a woman’s records is in some respects merely an

extension of that established practice.11 Di Lucas, of the Canberra Rape
Crisis Centre in Australia, who was imprisoned for refusing to hand over
service records without the client’s consent, understands the subpoenaing
of women’s counselling records as indirectly related to the reforms of the
law which have closed other, traditional avenues by which complainants
could be discredited. Lucas maintains that there is nothing accidental about
the identification of counselling records as a new source of material: “[t]he
written documents that they’re after are about women’s feelings, their
innermost, most private emotions”.12 Boundaries of privacy and interi-
ority are thereby breached in a painful revisiting of the rape’s violation
of the victim’s subjective sense of self: “it’s an extension of a rape; it’s
about trying to attack women at their most vulnerable spots. We know
that rape is about power and control and this is an extension of that inva-
sion” (ibid.).13 Whereas traditional means of discrediting the complainant
may have replicated the violation/violence of the rape by sexualising the
victim, contemporary measures are achieving similar results by assaulting
the complainant’s privacy and subjective sense of self.
Of course, this latest strategy is also used effectively to create doubts
about whether the complainant is a genuine victim. Since the ‘ideal’
victim’s conduct and character are always consistent and blameless – not
least because, as an imaginary construct, she has no life experience –
the defence can discredit a complainant’s victim-status by exposing and
attaching adverse inferences to any inconsistency, any undesirable fact,
even anything surprising or unexpected about her. That there are rapeable
and unrapeable women is well established.14 The practice of discrediting

11 Calling for records can stall prosecutions or even compel women to withdraw from
prosecutions: in one case Sheehy discusses, where the accused is a Catholic Bishop, the
strategy of requesting records was being employed to “prevent the case from ever being
litigated on the facts” (1995, p. 22; see also Murphy and Whitty, 2000).
12 Interview with the author, 27 August 1998.
13 The intrusion into and exposure of personal details in this way can compromise not
only a legal complaint but also the recovery process. A number of sexual assault services
that I spoke with reported that clients had decided not to attend counselling when it was
explained to them that their records might be used – without their permission – in any
subsequent legal proceedings. Service providers are understandably angry and frustrated
by the legal intrusion into the therapeutic process. Di Lucas asks, “Where do you go
for recovery if even the recovery process is laid bare and compromised? What chance
is there?” (supra note 12). Most galling, perhaps, is the perception that defence lawyers
know precisely the effects of their actions in these terms.
14 On discrimination against and disqualification of rape complaints by Aboriginal
women, see Greer with Breckenridge (1992); Thomas (1993). Women of non-English
speaking backgrounds fare no better (Aldunate, 1995; Alwishewa, 1995; Garrett, 1992)
138 WENDY LARCOMBE

complainants by orchestrating a disjunction between the survivor and an

‘ideal’ victim is an extension of that dichotomy.
In a contested case, it is not only the complainant’s refusal of consent
that is in issue, but also her right to the court’s protection and legal redress.
Unlike the genuine and deserving victim, the complainant is represented
as failing to protect (and regulate or discipline) her self, her affairs, and her
sexuality. It is through such repeated returns to the discrepancies between
the complainant’s behaviour and conduct, and that of a normative, valour-
ised victim that complaints of rape are frequently discredited. However,
if a complainant must be (morally) deserving of the court’s sympathy and
protection, if she must in some form measure up to the model of the ‘ideal’
rape victim, it should not be concluded that the only way for a complainant
to succeed is by being a good, middle-class wife attacked in her own home.
An examination of successful rape cases reveals that the disqualification of
rape complain(an)ts is not as straightforward as we might expect.

3. S UCCESSFUL C OMPLAINANTS

It is common feminist knowledge that the regulation of female sexuality

and social conduct is an effect, and even an aim, of rape law. That under-
standing has gained little purchase with many legal practitioners, however,
who are quick to point out that while the successful rape cases are a tiny
and unrepresentative minority they are also not as systematic or predictable
as a theory of female regulation would lead one to expect. In particular,
while complainants are routinely compared, disparagingly, to an ideal or
normative rape victim, disqualification is not inevitable. More intriguingly,
successful complainants are by no means uniform paragons of sense or
virtue.
A sampling of successful Australian rape prosecutions demonstrates the
variability and complexity of the factors that contribute to, and complicate,
the legal construction of legitimised rapes and ‘real’ rape victims. In the
following examples, the cases succeeded at trial despite the complainant’s
deviance from a model of reason and sexual restraint.15
• In Rodriguez,16 the successful complainant was a 20 year-old student
who accepted a ride in the offender’s new car. The offender was her
while disabled complainants face almost impossible barriers (Carmody and Bratel, 1992;
Phillips, 1995). Child victims of sexual assault also confront specific difficulties in
pursuing a legal complaint (Martin and Angel, 1995; Oberman, 1994).
15 These cases are drawn from appellate reports and, in some instances, the convictions
obtained at trial were overturned. Given all we know about the filtering out and disqualifi-
cation of rape complaints, however, my interest is in the fact that they succeeded at all.
16 (1997) 93 A. Crim. R. 535.
 THE ‘IDEAL’ VICTIM 139

sister’s fiancé. He drove her to his mother’s house where she willingly
accompanied him into his bedroom and sat on the bed where the rape
took place. His mother was in the next room at the time and testified
that she heard no protests or cries for help.
• In Benfield,17 the complainant and offender had been married for
eleven years with a long history of prior physical and sexual assault.
Mrs B. had complained unsuccessfully against her husband on an
earlier occasion.
• In Moffat,18 one of the victims was described as a “married woman
aged 40” (p. 569), but another was “a student working at Ardmona
Cannery” who was attacked while sleeping in her car in the factory’s
car park (p. 570).
• In Griffis,19 a woman living with her three small children success-
fully complained of rape after waking to find G.’s fingers inserted
in her vagina. G. and another man – recent acquaintances – had,
at the complainant’s invitation, been drinking at her house most
of the evening and she had made up spare beds for them before
taking a sleeping tablet and going to bed herself, later declining G.’s
suggestion that they “have a threesome” (p. 204).
• In Stoupas,20 the successful complainant was a young woman who
had spent the evening drinking at a hotel with the offender, who later
drove her home where she invited him in for a drink. They had danced
and kissed consensually before the rape took place.
• In R. v. Higham,21 a 52 year-old respected family friend was convicted
of raping the 19 year-old complainant after she had gone to his home
in the country for comfort and to consult him about troubles with her
boyfriend.
• In Ibbs,22 the complainant and her children were living with the
offender and his wife and it was established that on several occasions
prior to the rape she had had consensual intercourse with the offender
as a form of payment for her accommodation.
The point to emphasise is that in none of these cases is the successful
complainant “a happily married woman living in a flat in the absence of her
husband when the miscreant breaks in and commits rape on her” (Harris).
Nor is she “[a] decent young married woman providing no advances or no
17 (1996) 89 A. Crim. R. 118.
18 (1997) 91 A. Crim. R. 557.
19 (1996) 91 A. Crim. R. 203.
20 (1997) 94 A. Crim. R. 525.
21 (1997) 1 V.R. 280.
22 (1988) W.A.R. 91.
140 WENDY LARCOMBE

provocation whatever” (Webb). In most of these cases the accused was not
a stranger, the complainant had invited him into her home or was cohabit-
ing with him. None of the women were happily married and several lived
in what might be called unconventional relationships. Most importantly,
in each of these cases the contexts in which the assaults took place could
be sexualised by the defence so as to infer consent. The juries in all of
these cases, however, were satisfied that consent to the relevant sexual acts
had not been present on the specified occasions and that the accused men
would have been aware of this.
How are these cases, which are by no means exceptional, to be
explained? In one sense it would appear that rape law is able to recognize
rape in a broader and more complex range of social circumstances and
ethical situations than is commonly credited within feminist critique. It
would also seem that, while general trends are observable in the factors
that contribute to successful trial outcomes, successful complainants are
not easily identified employing conventional moral axes. Perhaps so. This
does not mean that the familiar constructs of ‘real’ rape and the ‘real’ rape
victim cease to have currency and effect in the criminal justice process I
would argue.
The apparent discrepancies between the ‘ideal’ rape victim described
earlier and the successful complainants in these cases may be explained
if we consider recent research analysing the discourse of rape trials and,
particularly, cross-examination.

4. T HE R EQUIREMENT FOR R ESISTANCE R E -E MERGES

The complainants in the cases noted above did not embody the judicial
stereotype of the ‘real’ rape victim. I want to propose, however, that there
may still have been important elements of conformity in relation to that
stereotype, evidenced through the prosecution process and the discourse
of the courtroom.
For a rape complainant, giving evidence is never a simple matter of
telling her story. Whether, and the ways in which, she is able to represent
herself as a credible witness and an authentic victim are determined
by the legal rules, routines, and conventions framing the production of
evidence and the conduct of cross-examination. Alison Young has analysed
rape cross-examinations in Australia and isolated two main techniques
employed to discredit complainant testimony: countering and attacking the
complainant’s story; and entering into it only to destabilize and expose it
as inconsistent, improbable, far-fetched (1998, pp. 456–459; 1997, p. 5).
As Young concludes, it is not only the content of the questions put to the
 THE ‘IDEAL’ VICTIM 141

rape complainant but equally their form that damages her claims and credit
(1998, pp. 457–458). In this respect, Nina Puren has identified “a particular
grammatical pattern” in the structure of defence questioning which has the
effect of rescripting the female subject “as the ergative agent of the male
subject’s necessarily transitive actions”. In other words, the grammatical
structure of the question makes it seem that “she causes him to act upon
her” (1997, p. 145, emphasis in original).
Matoesian (1993) also demonstrates through micro-analysis of
courtroom talk that the rape complainant is dominated, and the complaint
regularly disqualified, through the structure of courtroom questioning,
blame-inference, and accusation. As Matoesian’s analysis reveals, the
defence counsel is structurally empowered by the organization and rules
of the courtroom to control the flow and nature of talk. S/he is also
empowered to regulate and generate silences: should the witness pause
or remain silent, the defence counsel can introduce a further question,
terminate her turn, or offer an unfavourable interpretation of the pause.
Pressure is thereby applied for the complainant to answer immediately,
and the time is minimised in which she could formulate a favourable
or effective response (p. 142). The “control and manipulation of silence
constitutes a critical power resource in courtroom talk”, Matoesian argues,
because “it embodies the inferential basis for assessing the credibility of
testimony and the character of witnesses” (p. 135).
Through these “discourse devices” the defence aims to make the
complainant appear “indecisive, inconsistent, and incompetent” in her
representation of key aspects of the event. A skilled defence counsel can
“destabilize and discredit virtually any account” from a rape survivor,
Matoesian concludes (p. 184). Importantly, once the complainant’s testi-
mony is discredited or undermined, that linguistically engineered deficit
is loaded with moral inferences. It is implied, for example, “that her testi-
mony has been rehearsed or coached, that her recall has been selectively
faulty, and that her testimony has been inconsistent and therefore lacks
credibility” (1993, p. 163).
The disqualification of the rape complainant must be attempted on
a case-by-case basis, however. Precisely through demonstrating that
courtroom talk is the means by which disqualification can be achieved,
Matoesian is able to emphasise that the “reproduction of domination
is never automatic. It is always something that must be worked for”
(p. 208). In each case, the defence must work to establish their dominance,
exploiting the advantage of the resources and opportunities available
to them. Occasional successes are also possible for survivors precisely
because their disqualification is not predetermined, or even prescripted,
142 WENDY LARCOMBE

but must be performed on a case-by-case basis. This means that there are
(limited) opportunities for subversion and resistance. Counter-intuitively,
cross-examination is one such opportunity, precisely because questioning
of the rape complainant constitutes a process of sexualisation, seduction,
bullying, and intimate exposure that reproduces the ideological bases of
gender domination – and, hence, elements of the contested rape.
Alison Young describes cross-examination of a rape complainant as a
form of assault: “it was as though the courtroom discourse was repeating
in its form of questioning as well as its content – the violence of the
rape” (1997, p. 5). Because her concern is to explain the disqualification of
rape testimony, Young considers how a defence lawyer’s propositions and
insinuations might persuade a jury to mistrust the complainant’s evidence.
I want to consider another possible effect, however, of defence attempts to
discredit a complainant’s testimony and victim-status.
As Young (1998) describes, the complainant is generally positioned
so that all she can do is reject and deny a series of propositions and
scenarios put forward by the defence lawyers. Given that the propositions
and scenarios are designed to discredit the complainant’s victim-status,
the complainant’s credibility as both a witness and a victim will turn
on her ability to resist the defence’s construction of her as sexualised,
contradictory, or unreliable. This resistance, like courtroom domination,
must be produced at a micro-level.23 Resistant complainants will not with-
draw from engagement, they will not refuse to answer questions, they will
not acquiesce, relent or give in. Complainants’ responses often demon-
strate increasing anger and frustration at the repetition of questions that
apparently bear little relation to the testimony they have already supplied
to the court (Young, 1998, p. 452). But this is also a complainant’s
‘chance’: if she can hold up under the pressure, if she can withstand the
defence counsel’s seductive and/or aggressive attempts to impose an alter-
native/normative account, if she can resist their attempts to take control
and determine the course of events; if she can stick with her version of
what happened and is clear about what she said, felt and wanted – all in
the face of explicit and calculated attempts to trip her up – she will have
represented herself not only as a persuasive and credible witness but, more
importantly, as a victimised yet resistant female subject.
While the complainant’s repeated rejection of the defence lawyer’s
propositions may become for the jury simply a “repetitive blur”, as Young

23 I would stress that what follows is based on a reading of only a handful of cross-
examination transcripts from cases where convictions were secured – by no means a
representative sample. Consequently, this section of the article forms an outline for a future
research project rather than a report on one already undertaken.
 THE ‘IDEAL’ VICTIM 143

(1998) describes, that is not the inevitable or sole possible effect of

cross-examination questioning. Although, obviously, it happens in only a
minority of cases, it is also possible that the defence lawyer’s propositions
become a repetitive blur and even a form of abuse for the jury, as for
the complainant, prompting them to ‘take in’ the complainant’s refusal,
her rejection, her ‘No’. What the jury hears will depend on a range of
factors, but if the complainant is heard even occasionally to resist the
defence counsel’s imputations, a scenario of non-consent will have been
played out. The non-consent and the resistance refer in this instance to
the cross-examination propositions about moral character and credibility,
rather than to the accused’s sexual propositions. But it is a scenario of
non-consent, nonetheless, and it will have been played out, moreover,
through the complainant’s demonstrations of resistance and opposition to
the defence’s sexualised or derogatory representation of herself. In this
way, it can make the complainant’s story of non-consent and resistance to
the accused’s sexual propositions highly persuasive and credible: the jury
will have just witnessed it.
A victim/survivor recalls such a moment when even the judge presiding
in her case was moved to interject in her defence:
Bench: With all due respect, [Mr defence lawyer], I find your conduct quite insulting. Now
you have put the witness through a tirade of questions this afternoon and when she gets a
bit angry with you, you want it recorded. I saw what happened and she is perfectly justified
in speaking that way. Continue with your cross-examination.
Defence Lawyer: In that case . . . it is conceded that that is the manner in which the witness
is speaking for the record.
Bench: Yes and she has got every justification for doing it in view of what you have put
her through (Grix, 1999, p. 92).

As we see here, it may be precisely the moments of a rape trial that

seem most outrageous and offensive that provide the complainant with
opportunities to demonstrate resistance. The defence attempts to discredit
the complainant may throw her or unsettle her but they also create opportu-
nities for the jury to see her resistance. As the judge here says, “I saw what
happened”. Through hearing the complainant’s rejection of the defence
lawyer’s propositions, it will be as if the jury can ‘see’ what happened on
the earlier occasion, as they themselves become witnesses to the (second)
rape.24

24 See Martin and Powell (1994) for an excellent analysis of the second assault launched
against rape complainants by the criminal justice system.
144 WENDY LARCOMBE

5. R ECONSTRUCTING THE S TEREOTYPE

Defence attempts to disqualify rape complainants routinely reproduce a

normative victim who is virtuous, moral and sexually restrained. Histori-
cally, these qualities have been evidenced through resistance, continuity
and consistency. Where once physical injury was required to prove the
complainant resisted, discursive resistance and consistency may now be
an important means by which complainants establish their credibility.
Certainly, the complainant’s success or failure in securing a conviction no
longer rests just or even primarily with her sexual reputation and social
conduct. A complainant’s moral character will also be assessed from her
verbal abilities and self-representation, particularly her capacities to with-
stand and reject an unfavourable reconstruction of that self in defence
questioning.
To understand the dis/qualification of complainants as discursively
achieved through the form and substance of legal questioning and response
has a number of implications, particularly for our identification of the
‘ideal’ rape victim. It can be seen that the ‘successful rape complainant’ is
not necessarily one with an unblemished sexual history. Rather, she has
a strong sense of herself and takes overt offence at (rather than being
taken by surprise or accepting as all too familiar) alternative and deroga-
tory constructions of her character and credibility. She will need to be
reasonably familiar with and experienced in managing power-loaded situ-
ations so that she can be polite but not compliant, co-operative but not
submissive. She is not prone to exaggeration or embellishment but seems
to talk straight. She answers questions quickly and precisely and speaks
fairly frankly and without shame about sexual acts and activities.
Clearly, these attitudinal and linguistic qualities will be related to class,
race, age, ability, and cultural background. What is interesting is that the
axes of inclusion/exclusion here may not replicate exactly other patterns of
discrimination and privilege. For example, the necessity for linguistic skill
in evading put-downs and the requirement for voiced resistance will favour
a complainant who is not too ‘polite’, too compliant or too shy. Class,
age, and cultural/ethnic background will obviously play a part here, as
will physical and linguistic dis/ability. The necessity to talk frankly about
sexual acts will similarly disadvantage certain groups of complainants on
the basis of age, class and cultural/ethnic background. But, interestingly,
on these bases the “middle-class woman at home alone when the miscreant
breaks in” will not necessarily make the best prosecution witness either.
Indeed, we could predict that successful rape complainants in Australia are
more likely working-class, young, able bodied, non-Aboriginal, English
speaking women. The credible rape complainant may well be a prosti-
 THE ‘IDEAL’ VICTIM 145

tute but is unlikely to be Filipina; she may be sexually experienced, but

will not have a history of mental illness.25 This is speculation; the point
to emphasise is that the attributes of a ‘successful rape complainant’ are
likely to be subtly but significantly different from the moral qualities of
the chaste, middle-class, married woman at home – the figure normally
identified as the ‘ideal’ rape victim.
There is no cause for celebration here, however. Even if women are no
longer primarily disqualified on the basis of sexual and/or moral conduct,
the discursive resistance that appears to characterise successful complain-
ants is similarly exacting. Clearly, given conviction rates in rape cases, only
a small minority of rape complainants can perform as required in order to
succeed by this means. It might differ from the chaste middle-class ideal,
but the reconstructed model of the ‘successful complainant’ we have been
considering here is no less exclusionary or punitive. For the majority of
complainants, the experience of giving evidence in a rape trial is confusing
and humiliating (see R.R.L.C., 1992). Most importantly, rather than being
able to resist the defence counsel’s reconstruction and imputations, many
complainants are strategically and systematically reduced to submission
and compliance:

His barrister swung questions at me. I was only supposed to give a yes or no answer. If I
paused even in the slightest the barrister would answer the questions for me. The barrister
was very smart, he kept insisting that it was one of those boy meets girl affairs when it
wasn’t like that at all. I couldn’t always follow the formal words that were used such as
him saying “my client” instead of using his proper name. I became increasingly confused.
It was just as if he was allowed to tear me apart and lie and get away with it and no one
stopped him. I looked to the prosecutor. She didn’t say anything, she just kept her head
down taking notes. With all this happening I went even further into a state of shock. I was
shaky and nervous and my stomach felt like it was tied in knots. I wasn’t really aware of
what was going on. It was as if my body was there but my mind was elsewhere. In the end
I just agreed with everything that his barrister said (a victim/survivor quoted in R.R.L.C.,
1991, p. 15).

That is what the jury will see and hear, the defence hope, allowing the
inevitable parallel to be drawn: she submitted this time, so it is likely that
on that other occasion she was similarly submissive/agreeable.
25 Counter-intuitively, perhaps, prostitute rape cases have a reasonably good success rate
at trial, comparable at least to cases where complainants are not sex-workers. The overt and
documented discrimination against prostitute-complainants seems to arise at the sentencing
stage where a marked difference has been documented (see Fisher and Ammett, 1992;
Warner, 1998). A Prosecutor explained to me that he liked working prostitute rape cases
because sex-workers generally are at ease, relatively, in speaking about sexual acts and
events and are also very clear about the terms of their sexual (non)availability. See also
note 14 above.
146 WENDY LARCOMBE

6. C ONCLUSION

While physical resistance is no longer an element of the crime of rape as

defined in Australian jurisdictions, in a rape prosecution discursive resist-
ance remains an important mode of production of the requisite feminine
subjectivity. Consistent verbal resistance to the defence’s reconstruction of
events and moral inferences can be a means by which the complainant
evidences not only her credibility but her non-consent. However, even
when successful – indeed in order to be so – a rape complainant must
undergo this trial of her resistance and re-experience domination and the
(attempted) denial of her reality and subjective sense of self. That some-
times resistance, continuity and consistency can be demonstrated in that
process, and sometimes produce the requisite effect and outcome, is some-
thing of a cold comfort as it always exacts a heavy penalty – the courtroom
rape.
Another problem must be added to the list that feminist critics of
rape law must now address, then. Already on that list are the structural
disadvantages that the rape complainant labours under as a result of the
legal rules of evidence and procedure; the routine sexualisation of the
complainant’s body with the effect of discrediting her statements; and
the judicial construction of a ‘real’ rape victim as chaste, modest, and
reasonable. In addition, feminist critics need now to address, challenge and
attempt to mitigate the exclusionary effects of the requirement for a very
particular form of discursive competence, resistance and, indeed, verbal
fortitude on the part of rape complainants.26

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Equity and Learning Programs

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E-mail: w.larcombe@unimelb.edu.au

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