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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- 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.
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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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