Complainants Previous Sexual History
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This article discusses the troublesome issues surrounding the eliciting of evidence of a complainant's previous sexual history in trials forsexual offences, particularly rape. The reason that this area of law is so fraught with difficulties is that rape is a particularly serious crime, and carries a maximum penalty of life imprisonment. Yet in a great many cases, the difference between acquital and conviction turns on the complainant's consent -- something of which no direct evidence can be obtained. Consequently, since there is a presumption of innocence in English criminal law, the conviction rate is spectacularly low -- fewer than 6% of trials result in a conviction.
In order to defend a charge of rape, the defendant will frequently seek to show that the complainant consented to sexual intercourse or, more probably, that he believed she did. An honest belief in the complaint's consent is, in principle, adequate to secure an acquital, even if there were no reasonable grounds for that belief. To establish consent, the defendant might wish to show, for example, that the complainant had had sex with the defendant in the past, or had had sex with other men in the past. It is not altogether uncommon for the complainant of a sexual offence to have made similar allegations in the past, and the defendant may wish to use this fact to undermine the credibility of the complainant.
There are two problems with allowing the complainant to be questioned on these matters. First, such questioning is frequently very traumatic and embarrassing for the complainant. Second, juries tend not to be able to assess the relevance of evidence of the complainant's sexual history. As a result, evidence of this meta is more prejudicial than it often merits. Questioning the complainant about her relations with men other than the defendant is particular pernicious because, not only does such questioning tend to exploit the misconception that a woman who consented to have sex with several different men would have consent to have sex with the defendant, but jurors tend to equate sexual inexclusivity with a general lack of moral fibre, and therefore with a predisposition to be untruthful.
These considerations suggest that questioning the complainant on her previous sexual history ought to be restricted. Unfortunately, in a high proportion of cases the defendant and the complainant have had a sexual relationship prior to the alleged offence, and the existence of such a relationship is highly relevant to the question of the defendant's guilt. After all, in such circumstances if will be far easier for the jury to believe that the defendant had an honest belief in the defendant's consent than if the defendant and the complainant were complete strangers to one another. It is much harder to make a case for allowing questioning on the complainant's sexual relations with men other than the defendant, although there are occasions where this is relevant, as we shall see.
It should be clear that the law has to find a very delicate compromise between the rights of the defendant and the interests of society in cases of rape. The Heilbron Committee considered the issues in 1975, and concluded that it should continue to be possible for the defendant to question the complainant on her previous sexual relations with him, but questioning on her relations with other men required leave of the court. These recommendations were enacted as s.2 of the Sexual Offences (Ammendment) Act 1992.
s.2 was criticised on a number of grounds. First, it did not set out particularly clearly the grounds on which the court should give leave to allow questioning on the complainant's relations with other men. In some cases, the hurdle that the defendant had to jump to be able to ask such questions was set particularly low. For example, in RVViola1982 -- a case in which there was eyewitness evidence that the complainant had had sexual intercourse with several different men shortly before and shortly after the alleged offence -- the Court of Appeal ruled that if the answers to the defendant's questions were likely to cause the jury to change to a different view, there was no discretion to refuse to allow the questions. The problem with this ruling is that it would allow questioning with little probative value but significant prejudical effect -- exactly what s.2 was intended to prevent.
Second, s.2 did nothing to prevent questioning on the complainants previous relations with the defendant, and many cricics argued that such questions had little probative value. The problem with this criticism is that, while the complainant's relations with the defendant may be irrelevant to the issue of her consent in the current indictment, it is highly relevant to the issue of the defendant's belief in her consent. We will return to this issue later.
Third, s.2 dealt only with rape, and questioning on sexual history continued to be allowed in trials for other sexual offences.
Continued complaints that s.2 of the 1976 Act did not go far enough in restricting questioning of low probative value, combined with its lack of clarity on when leave should be granted, let to a radical reform of the law in this area, which was enacted as s.41 of the YouthJusticeAndCriminalEvidenceAct1999. s.41 differs from the previous law in a number of important ways.
- It applies to sexual offences other than rape
- It applies to questioning the complainant's sexual relations with any man, including the defendant -- in all cases leave of the court must be obtained
- It states the grounds on which leave should be granted.
The grounds on which leave should be granted are that
- The questions do not relate to consent, or
- The questions concern sexual acts at around the same time of the alleged offence, or of a very similar nature, or
- They rebut evidence adduced by the prosecution of the complainant's sexual propensity
and, in any case,
- The effect of refusing the questioning would be to render the conviction unsafe.
It should be clear that the test in s.41 is a considerable more stringent one for the defendant. In fact, it may be so stringent that it breaches the UK's obligations under the Echr, in particular the right to a fair trial under s.6. This issue was considered by the Court of Appeal and then the House of lords in [[RVA2001]. In that case, the complainant and the defendant had had a consensual sexual relationship for some weeks before the alleged offence, and their last such encounter was only a week before the alleged offence. In addition, the defendant alleged that the complainant had had sex with another man on the same day as the alleged offence.
The Court of Appeal held that the complainant should have been questioned on her relations with both men. Her sexual relations with the man other than the defendant would have been admissible under s.41(3)(c), as it took place at about the same time as the alleged offence. Her sexual relations with the defendant would be excluded by s.41 to the extent that the questions went to her consent, but not to the extent that they went to the state of mind of the defendant. The Court made it quite clear that this was an absurd result, and that it should be unnecessary to side-step s.41 by distinguishing between belief in consent and actual consent.
In the House of lords, it was held that s.41 had the potential to breach Art. 6, and that courts should read down its provisions such that the test for admissibility was not whether exclusion would lead to an unsafe conviction, but whether it would lead to a fair trial. The House went on to say that whether exclusion would lead to an unfair trial was a matter to be decided by the court on the basis of all the facts, and remitted the case back to the crown court for reconsideration.
In both the Court of Appeal and the House of lords it was held to be a plain matter of common sense that a previous consensual relationship between the complainant and the defendant was relevant to the issue of her consent, and that it was not sexist to proceed on that basis.
In summary, it appears that the effect of the decision in R v A is to return the law somewhat closer to its position in s.2 of the 1976 Act, but removing the extremely stringent test for admissibility. However, it does not remove the need to obtain leave to question the complainant on her previous relations with the defendant. What the courts will make of this decision in future cases remains to be seen. There is some evidence that judges are having to make awkward compromises. In RVFlint2005, for example, the trial judge had allowed the complainant to be questioned on her sexual relations with the defendant, but had refused to admit photographs and videos made by the complainant and sent to the defendant that purported to show that she was a wholely willing participant in this relationship. However, to the extent that s.41 applies at all, it does not distinguish between evidence obtained by questioning and evidence from other sources, and the Court of Appeal, ordering a retrial, held that the judge's ruling was artificial and misleading.
Turning to the issue of previous allegations made by the complainant, the Court of Appeal have recently held that these do not fall within the scope of s.41 at all. Making allegations does not constitute 'sexual behaviour' (RVMH2002).
In conclusion, in seeking to reduce the indignity suffered by complaints and increase the conviction rate of offenders, s.41 arguably goes too far. However, its impact has been lessened by judicial action, either in reading down its provisions or ruling that certain kinds of behaviour do not fall within its scope.