Abstract
Chapter 3 outlined the use of rape myths to undermine the survivor’s credibility. This chapter will unpack another common way in which evidence was challenged: sexual history. Sexual history evidence has been restricted since the Youth Justice and Criminal Evidence Act 1999, but the retrial of Ched Evans in October 2016 highlighted its ongoing use in court and significantly widened the type of evidence that could be adduced. Despite being initially convicted of rape in April 2013, Evans was acquitted at retrial following claims that the complainant had previously used similar sexual phrases and positions to those described by Evans. News coverage of the retrial criticised this, with Harriet Harman, MP, calling for an amendment to the Prisons and Courts Bill which would tighten restrictions on sexual history evidence. Both this, and a similar call to amend the Sexual Offences Bill, were put on hold after Theresa May called a general election in May 2017, but the proposed amendments are due to be discussed again under a new title of Courts Bill soon. It is unclear exactly when this will happen, but this chapter can inform such policy debates by showing that current restrictions are ineffective. There is no up-to-date academic evidence on the use of sexual history in English and Welsh trials, so this chapter provides essential data from which to have an empirical basis for discussion. Once again, I argue that the criminal justice system is deeply flawed in its ability to provide justice for survivors, this time because safeguards against sexual history evidence are easily undermined using legal discourses about fair trial and consent. While these observations relate to English and Welsh trials, such discourses are relevant to other countries which similarly seek to limit the use of sexual history in court.
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Notes
- 1.
The CPS guidance on Section 41 provided examples of how evidence could be included under s. 41(3)(a). These examples suggest that sexual history can be considered relevant if it is about (a) honest belief in consent, (b) motives to fabricate evidence or make an allegation against the accused, (c) alternative explanations for physical evidence of sexual intercourse, or (d) an explanation as to how a young complainant may have knowledge of sexual behaviour described in their testimony. Further case law (R v V CA [2006] EWCA Crim. 1901) suggested that when using sexual history as evidence of false allegation, it may be necessary to make an application under the bad character provisions in the Criminal Justice Act 2003 (CPS , n.d.). The CPS (n.d.) even argued that questioning on previous allegations could be used where the sexual history application is rejected, as long as it focused on the survivor’s credibility rather than their sexual behaviour.
- 2.
Widely accepted as meaning a 24-hour period.
- 3.
This was especially true in scenarios where there had been consensual sexual activity beforehand.
- 4.
Notably this still requires the sexual behaviour to be remarkable and so did not allow the inclusion of commonplace sexual behaviour.
- 5.
Significantly, the presence of sexual history had no impact on perceptions of the accused’s belief in consent, suggesting that participants disputed the relevance of previous activity on the accused’s expectations (Schuller & Hastings, 2002).
- 6.
Archebold is the name of the law manual that judges and barristers use as guidance in legal arguments.
- 7.
A further Section 41 application was known to have occurred in private session, but it did not appear to be successful because the observers did not see the evidence introduced during cross-examination .
- 8.
Of these applications, five related to the accused and six were about third parties (Durham, Lawson, Lord, & Baird, 2016).
- 9.
Although I would argue that these are ‘rational ’ reasons to lie to the police , I have designated them as non-‘rational ’ because such justification was never mentioned in the discussion of ‘rational ’ reasons.
- 10.
The Section 41 application occurred pre-trial and with a different judge, so it was unclear as to which specific subsection the evidence was adduced. However, the primary user of the sexual history was the prosecution barrister, with the defence only expanded on evidence already introduced.
References
Baird, V. (2018). The impact on future rape trials of the Ched Evans case. Privately circulated, with publication forthcoming.
Brownmiller, S. (1975). Against our will: Men, women and rape. New York: Bantam Books.
Burman, M., Jamieson, L., Nicholson, J., & Brooks, O. (2007). Impacts of aspects of the law of evidence in sexual offence trials: An evaluation study. Edinburgh: Scottish Government.
Campbell, L., & Cowan, S. (2017). The relevance of sexual history and vulnerability in the prosecution of sexual offences. Edinburgh: Edinburgh University Press.
Catton, K. (1975). Evidence regarding the prior sexual history of an alleged rape victim—Its effect on the perceived guilt of the accused. University of Toronto Faculty Law Review, 33, 165–180.
Chalmers, J. (2014). Independent legal representation for complainers in sexual offence cases. In J. Chalmers, F. Leverick, & A. Shaw (Eds.), Post-corroboration safeguards review: Report of the academic expert group (pp. 185–189). Edinburgh: Scottish Government.
Counihan, C., & Wall, A. (2015). Legal information pack for practitioners advising survivors of sexual violence. Dublin: Rape Crisis Network Ireland.
Crown Prosecution Service. (n.d.). Rape and sexual offences: Chapter 4: Section 41 Youth Justice and Criminal Evidence Act 1999. Retrieved from http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/yjcea_1999/
Daigneault, I., Hébert, M., & Duff, P. (2009). Men’s and women’s childhood sexual abuse and victimisation in adult partner relationships: A study of risk factors. Child Abuse & Neglect, 33(9), 638–647.
Durham, R., Lawson, R., Lord, A., & Baird, V. (2016). Seeing is believing: The Northumbria Court Observers Panel Report on 30 rape trials 2015–2016. Newcastle: Northumbria Police and Crime Commissioner.
Edwards, K. M., Turchik, J. A., Dardis, C. M., Reynolds, N., & Gidycz, C. A. (2011). Rape myths: History, individual and institutional-level presence, and implications for change. Sex Roles, 65(11–12), 761–773.
Ellison, L., & Munro, V. E. (2009). Turning mirrors into windows? Assessing the impact of (mock) juror education in rape trials. British Journal of Criminology, 49(3), 363–383.
Farrell, J. (2017). Vixens, sirens and whores: The persistence of stereotypes in sexual offence law. Trinity College Law Review, 20, 30.
Fenton, Z. (1998). Domestic violence in black and white: Racialised gender stereotypes in gender violence. Columbia Journal of Gender and Law, 8(1), 1–65.
Flowe, H. D., Ebbesen, E. B., & Putcha-Bhagavatula, A. (2007). Rape shield laws and sexual behaviour evidence: Effects of consent level and women’s sexual history on rape allegations. Law & Human Behaviour, 31(3), 159–175.
Garvin, M., & Beloof, D. E. (2015). Crime victim agency: Independent lawyers’ for sexual assault victims. Ohio State Journal of Criminal Law, 13, 67–88.
Gavey, N. (2005). Just sex? The cultural scaffolding of rape. London: Routledge.
Hansard HC vol. 621 col. 431 (8 February 2017) [Electronic version].
Hansard HL col. 1218 (23 March 1999) [Electronic version].
Hanly, C., Healy, D., & Scriver, S. (2009). Rape and justice in Ireland: A national study of survivor, prosecutor and court responses to rape. Dublin: The Liffey Press.
Hoyano, L. (2015). Reforming the adversarial trial for vulnerable witnesses and defendants. Criminal Law Review, 2, 107–129.
Kelly, L. (1988). Surviving sexual violence. Oxford: Basil Blackwell Ltd.
Kelly, L., Temkin, J., & Griffiths, S. (2006). Section 41: An evaluation of new legislation limiting sexual history evidence in rape trials. Home Office Report 20/06, Home Office, London.
Lees, S. (1997). Carnal knowledge: Rape on trial. London: Women’s Press.
Mackinnon, C. (2005). Women’s lives, men’s laws. Boston: Harvard University Press.
McDonald, E., & Tinsley, Y. (2011). Use of alternative ways of giving evidence by vulnerable witnesses: Current proposals, issues and challenges. Victoria University of Wellington Legal Research Papers, 1(1), Paper 2/2011.
McEwan, J. (2005). Proving consent in sexual cases: Legislative change and cultural evolution. International Journal of Evidence and Proof, 9(1), 1–25.
McGlynn, C. (2010). Feminist activism and rape law reform in England and Wales: A Sisyphean struggle? In C. McGlynn & V. E. Munro (Eds.), Rethinking rape law: International and comparative perspectives (pp. 139–153). Abingdon: Routledge.
McGlynn, C. (2017). Reforming the law on sexual history evidence: Reforming the law on third party evidence. Journal of Criminal Law, 81(5), 367–392.
Morris, S. (2016, October 18). Barristers say ‘over-reaction’ to Ched Evans case counterproductive. Guardian Online. Retrieved from https://www.theguardian.com/society/2016/oct/18/criminal-barristers-over-reaction-ched-evans-counterproductive-victims-sex-assault
New Statesman. (2016, October 18). Why the Ched Evans verdict does not set a dangerous precedent. New Statesman. Retrieved from https://www.newstatesman.com/politics/feminism/2016/10/why-ched-evans-verdict-does-not-set-dangerous-precedent
R v Andre Barrington White [2001] EWCA Crim 946.
R v Evans [2016] EWCA Crim 452.
R v C [2009] UKHL 42.
R v Hamadi [2007] EWCA Crim 3048.
R v V CA [2006] EWCA Crim. 1901.
Raitt, F. (2010). Independent legal representation for complainants in rape trials. In C. McGlynn & V. Munro (Eds.), Rethinking rape law: International and comparative perspectives (pp. 67–280). Abingdon: Routledge.
Redmayne, M. (2003). Myths, relationships and coincidences: The new problems of sexual history. International Journal of Evidence & Proof, 7(2), 75–101.
Schuller, R., & Hastings, P. (2002). Complainant sexual history: Its impact on mock juror decisions. Psychology of Women Quarterly, 26(3), 252–261.
Sexual Offences Act 1976. London: HM Stationery Office.
Smart, C. (1992). The woman of legal discourse. Social & Legal Studies, 1(1), 29–44.
Spohn, C., & Horney, J. (2013). Rape law reform: A grassroots revolution and its impact. New York: Springer.
Temkin, J. (1984). Regulating sexual history evidence: The limits of discretionary legislation. International and Comparative Law Quarterly, 33(4), 942–978.
Temkin, J. (2003). Sexual history evidence: Beware the backlash. Criminal Law Review, 4, 217–242.
Temkin, J., Gray, J., & Barrett, J. (2016). Different functions of rape myth use in court: Findings from a trial observation study. Feminist Criminology. https://doi.org/10.1177/1557085116661627
Temkin, J., & Krahé, B. (2008). Sexual assault and the justice gap: A question of attitude. Oxford: Hart Publications.
Wilson, L. (2005). Independent legal representation for victims of sexual assault: A model for delivery of legal services. Windsor Yearbook of Access to Justice, 23(2), 249–312.
Wolhuter, L. (2010). German and Swedish procedures as models for the empowerment of racial minority women in rape trials. International Journal of Law, Crime and Justice, 38(1), 1–16.
Youth Justice & Criminal Evidence Act 1999. London: HM Stationary Office.
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Smith, O. (2018). Sexual History Evidence in Rape Trials. In: Rape Trials in England and Wales. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-75674-5_4
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