Melbourne Law School - Theses
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ItemInstitutional depictions of sexual assault: negotiating meaning at the investigation/prosecution nexus( 2017)My research explores decision-making processes in the construction, authorisation and utilisation of briefs of evidence and case files in adult sexual assault cases. These artefacts are envisaged as representations of the event of sexual assault at the nexus of policing and prosecutorial institutions. In order to explore this, I discuss the organisational, institutional and juridical treatment and construction of sexual assault as articulated in briefs of evidence, and by brief authorising officers and investigators. The analytical approach taken in this thesis is a theoretically informed application of empiricism. Building upon a tradition of attrition studies, I rely on a range of analyses to create an intertextual reading of brief authorisation. My use of an empirical study to illuminate questions of ‘representations’ at law is a complex endeavour. The first task of my analysis is a reimagining of the brief-as-artefact and a re-theorising of the processes of discretion. Through this reimagining, the nature of the brief of evidence, typically understood as straightforward collection of relevant evidence, is given thicker description. My analysis of the brief of evidence as an institutional object, suggests an identity that is accumulative and distributive. Further, a consideration of the action of brief authorisation reveals the situated nature of decision-making, in addition to the relative nature of the assessment more broadly. My analysis suggests that discretionary processes of brief compilation and authorisation are guided by a number of overarching factors including the law as a mode of rationality, the organisational and bureaucratic properties of the policing institution and the agentic role of the individual member constructing the brief. As such, the brief represents the outcomes of countless decisional fields. The analysis offered here involves an identification of the belief systems, culturally-located narratives, understandings and attitudes drawn upon in the process of brief construction and interpretation, and the prospective/retrospective play of these processes as iterated by the actors involved. I focus in particular on police engagements with socio-cultural constructions concerning sexual assault, inclusive of rape mythology and stereotypes. I further analyse the ways in with police engage with the legal boundaries of sexual assault prosecution, demonstrating variability in approach as well as elucidating historically grounded understandings of legal requirements, standards and tests. A further key finding of this work is the routine deployment of imaginary constructs by brief authorising officers, in order to facilitate difficult decisions. Indeed, deferment to socio-cultural constructs concerning sexual assault within the brief of evidence are enabled by a projection of the authorisation decision onto individuals and structures outside of the policing institution, including perceived legal structures, the prosecution, and the figure of the jury. In this way, the analysis offered in this thesis undermines the separation of policing and prosecutorial institutions suggested by traditional depictions of attrition. Ultimately, the complex and iterative processes of decision-making described in this thesis have implications for approaches to procedural and legal reform, particularly with reference to the concepts of attrition and discretion. My analysis reveals a number of processes within the action of brief authorisation that undermine the effective implementation of reform. As such, the complex and multifaceted nature of decision-making with respect to brief authorisation suggests the need for a discursive approach to institutional and law reform.