Rape Trials and Sexual History Evidence

Protecting Autonomy: Consent as Person and Situation Specific

Sexual history evidence is most controversially introduced to support inferences of consent and/or to challenge credibility. ¹³ In relation to consent, adducing sexual history evidence relies on an assumption that previous consent is indicative of consent on the occasion in question. Such a rationale profoundly challenges the notion of consent being person and situation specific. Specifically in relation to sexual activity with the accused, it assumes that consent can be inferred from prior consent. This position was articulated by Lord Steyn in R v A where he stated that:

As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent. It is a species of prospectant evidence which may throw light on the complainant’s state of mind. ¹⁴

While this is a commonly held position, infusing English jurisprudence and scholarly work in the field, it is a prohibited form of reasoning in Canadian law because it is based on one of the ‘twin myths’. In particular, such an approach does not sufficiently recognise that consent is given afresh on each occasion. Also, in assuming consent to be more likely, it does not sufficiently recognise the variety of contexts of sexual relationships, including coercive or abusive relationships. Further, it neglects to consider the possibility that, in fact, having once engaged in sexual activity with the accused, he may become the person to which the complainant is least likely to consent in future. Indeed, assuming that someone is more likely to consent to sexual activity if they have done so in the past, is not so far away from the once-held assumption, and legal position, of implied consent during marriage.

Accordingly, while it is commonly assumed that evidence of previous consensual sexual history is relevant to support an inference of consent, this approach must be challenged. While it might be possible to say, in some circumstances, that evidence of previous consensual relations is legally relevant, it being marginally more likely that sex was consensual that not, as a general proposition, this fails to take into account the variety of conditions within which sexual relations take place. Even in cases in which evidence might be said to be relevant, this should not mean that such material is necessarily admitted (due to its potential prejudice and/or only marginal relevance to the issues).

Notwithstanding ongoing debate over the use of sexual history evidence with the accused to infer consent, there is greater agreement of its irrelevance regarding third-party evidence. As Lord Coleridge noted all those years ago, there is no probative connection between consenting to one person and consent to a different person. The Heilbron Report agreed, concluding that third-party sexual history evidence is ‘of no significance so far as credibility is concerned and is only rarely likely to be relevant to issues directly before the jury’. ¹⁶ The Report recommended that ‘in general’ third-party sexual history evidence ‘ought not to be introduced’. ¹⁷ Nonetheless, there are those who have maintained its relevance to consent. In the legislative debates leading to the 1999 Youth Justice and Criminal Evidence Act, the then Lord Chief Justice Lord Bingham stated that where the defence wished to ask a complainant whether she had voluntarily had sexual intercourse with men other than the accused on the days before and after an alleged rape, ‘no rational person would think that those questions are irrelevant’. He continued that this evidence or questioning was relevant both to the ‘truth of the complaint made’ and to the defence of consent and that this was only ‘good sense’. ¹⁸ This serves to highlight the tenacity of some beliefs regarding sexual history evidence and its relevance and brings to mind the cautionary note sounded by Canadian Justice L’Heureux-Dubé:

Regardless of the definition used, the content of any relevancy decision will be filled by the particular judge’s experience, common sense and/or logic. There are certain areas of enquiry where experience, common sense and logic are informed by stereotype and myth…This area of the law has been particularly prone to the utilisation of stereotype in the determination of relevance. ¹⁹

Prejudicial Impacts and the Integrity of the Trial

The other problematic use of sexual history evidence, the second of the ‘twin myths’, is its introduction to challenge credibility. While it is rarely suggested nowadays that sexually active women are less truthful, focus has shifted from ‘probative credibility’ (i.e. truthfulness) to what Aileen McColgan has termed ‘moral credibility’. ²³ Moral credibility refers to evidence to ‘show the complainant to be so morally inferior as either not to deserve the court’s sympathy or not to provide a suitable foundation for punishing the accused’. ²⁴ Similarly, while restrictions may have been introduced on sexual history evidence (such as identifiable acts or practices), evidence relating to ‘sexual character’ may continue to be admitted with adverse impacts. ²⁵ ‘Sexual character’, often implied by innuendo, references to women’s lifestyles, personal habits, dress and such like, can be more nebulous than specific instances of sexual history, making it more difficult to control or deny. In practice, evidence implying sexual character invites moral judgments about complainants, with the risk of influencing determinations as to credibility and responsibility.

Related to this use of sexual history evidence is the argument that the ‘task of the defence’ is to ‘normalize rape into sex’. ²⁶ The more the defence can assimilate the activities under scrutiny in the trial to normal, everyday sexual behaviour, the less likely the jury are to consider the events to constitute rape. ²⁷ In this way, evidence of a complainant’s sexual proclivities can distract jurors’ attention from the consideration of ‘rape’, directing them towards that of ‘sex’. ²⁸

This idea of ‘moral credibility’, and the influence of sexual character evidence, helps to explain why despite decades of the commonly stated position that sexually active women are not less worthy of belief, the defence may find value in introducing sexual history evidence. It seems that knowledge of a woman’s sexual activities contributes to shifting the focus of the trial from the defendant’s actions to those of the complainant, thereby also shifting legal and moral blame from the defendant to the complainant. ²⁹ As the Heilbron Report identified many years ago, ‘unless there are some restrictions, questioning can take place which does not advance the cause of justice but in effect puts the woman on trial’. ³⁰

For these reasons, sexual history evidence risks introducing irrelevant or prejudicial material which may distort rather than promote the truth-finding role of the trial and rectitude in its decision-making. Restrictions on this evidence are necessary, as further identified by the Heilbron Report: the ‘exclusion of irrelevant evidence at the trial will make it easier for juries to arrive at a true verdict’. ³¹ Similarly, Justice Gonthier in the Canadian case of R v Darrach, upholding the constitutionality of Canadian restrictions on sexual history evidence, held that the accused is not entitled to procedures that would ‘distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial’. ³² The risk, as identified by Lord Hutton in R v A, is that the ‘sexual history of the complainant may distort the course of the trial and divert the jury from the issue which they have to determine’. ³³ The integrity of the trial, therefore, means that irrelevant or prejudicial evidence, especially evidence that may mislead the jury or distract it from the task at hand, must be excluded from the trial.

A range of studies across different jurisdictions have identified potentially distorting impacts of sexual history evidence, specifically that sexual history evidence makes acquittals more likely as jurors consider complainants less credible and more likely to have consented. ³⁴ It seems that juries often focus on the ‘respectability’ of women complainants, with evidence of previous sexual activity, alongside drinking, drugs or other ‘risk-taking’ activities, reducing their ‘respectability’ which, in turn, reduces the assessment of credibility. ³⁵ This approach was neatly summed up by one QC who explained that ‘if the complainant could be portrayed as a “slut” this was highly likely to secure an acquittal’. ³⁶

Protecting Witnesses from Unnecessary Humiliation and Distress

In this context, it is not difficult to understand how research evidence and witness testimony over decades has raised concerns about the extent to which rape complainants are facing humiliating and traumatic trial processes. Phrases such as the ‘second rape’ or ‘judicial rape’ have become common parlance due to the enduring evidence from complainants of their adverse treatment in court. ³⁷ Thus, while giving evidence and facing cross-examination will always be a stressful activity, and there is no dispute over the need for careful cross-examination on salient issues, the research evidence suggests continuing practices which go beyond necessary questioning and become bullying, harassing and humiliating. Accordingly, restrictions on sexual history evidence, by limiting evidence and cross-examination to only highly probative material, are justified by the need to reduce the humiliating and distressing nature of cross-examination in rape trials, as well as protecting a complainant’s right to privacy.

Securing Best Evidence

Reducing humiliation and trauma is necessary in and of itself, but also vital to ensuring that complainants are able to give their best evidence. Perhaps not surprising in the light of the research discussed above, another recent review of rape victims’ experiences found that they were highly anxious before and during court due to the evidence-giving process. ³⁸ While some anxiety will be unavoidable, the fear and reality of unnecessary cross-examination on prejudicial material will interfere with a complainant’s ability to give evidence in the most suitable ways for the court and jury. Therefore, restrictions on sexual history evidence, and related procedural safeguards, can help secure the best evidence from complainants which, in turn, is necessary for the trial process and can have a positive impact on trial outcomes.

Encouraging Police Reports and Supporting Prosecutions

However, many rape cases get nowhere near a court. One reason is the fear of the trial process, with many studies identifying it as a key barrier to both reporting offences to the police and continuing with prosecutions. ³⁹ Thus, effective restrictions on sexual history evidence are vital both to encouraging victims to report to the police and then to continue to support prosecutions.

Justice for Victim-Survivors

Ultimately, ensuring a fairer trial process for complainants will go some way towards securing their justice interests. These interests include convicting the guilty as well as being treated with dignity and respect and having a ‘voice’ through meaningful participation in the trial process. ⁴⁰ With public policy supposedly focused on placing victims’ interests at the ‘heart’ of the criminal justice system, ⁴¹ central to securing that aim is enacting and enforcing robust laws to secure just outcomes.

Similarity Evidence, Third Parties and Inferring Consent

Controversial since its inception, the use of the ‘similarity exception’ in the Evans case caused a public furore and sparked a number of parliamentary reform initiatives discussed further below. Its genesis goes back to the Heilbron Report which first proposed an exception based on similarity, specifically that permitting evidence of sexual behaviour which was ‘striking similar’ to the alleged events on the occasion in question. ⁷³ Due to the overall permissive nature of the 1976 Act, however, no such exception was introduced.

The question of similarity evidence arose again during the parliamentary debates leading to the 1999 Act. No similarity provision was included in the original bill, the exception only being added in the House of Lords when Baroness Mallalieu suggested that the law needed to permit evidence that a complainant had previously engaged in a ‘Romeo and Juliet fantasy’, namely, a desire to have sex with men after they have climbed into the bedroom from a balcony. ⁷⁴ This eccentric suggestion was sufficient to persuade the government that another exception was needed, quite likely on the assumption that this peculiar example was not going to affect the overall operation of the law. Accordingly, s. 41(3)(c) permits evidence that relates to consent and the sexual behaviour is ‘in any respect, so similar’ to (i) any sexual behaviour of the complainant that took place as part of the event that is the subject matter of the charge or (ii) any other sexual behaviour of the complainant that took place at or about the same time as that event and that the ‘similarity cannot reasonably be explained as a coincidence’.

Few other jurisdictions permit sexual history evidence on the basis of similarity and specifically not to infer consent. Jennifer Temkin has noted that New South Wales rejected a similarity exception as ‘there would be difficulties in determining when a similarity in the sexual context was sufficiently striking’. ⁷⁵ While in Canada similarity evidence is admissible, it is not permitted to demonstrate consent. In R v Seaboyer, Justice McLachlin permitted an exception as follows: ‘Evidence of prior sexual conduct which meets the requirements of similar act evidence, bearing in mind that such evidence cannot be used illegitimately merely to show that the complainant consented or is an unreliable witness’. ⁷⁶ She continued that this evidence of ‘prior sexual conduct draws upon the inference that prior conduct infers similar subsequent conduct’ and it therefore ‘closely resembles the prohibited use of the evidence and must be carefully scrutinized’. ⁷⁷

Unfortunately, while other jurisdictions exclude entirely similarity evidence, and Canada does not permit it to demonstrate consent, s. 41 both permits it and to prove consent. Of central importance, therefore, is what constitutes a ‘similarity’, with s. 41 requiring activity that is ‘so similar that the similarity cannot reasonably be explained as a coincidence’. Writing shortly after s. 41 was adopted, Jennifer Temkin questioned the value of the exception ‘since it is hard to justify an exception on similarity alone’, continuing that it ‘provides an open invitation to an interpretation which could fundamentally undermine the very purpose of this type of legislation’. ⁷⁸ Perhaps alive to such risks, it was the government’s stated view that the similarity provision in s. 41 was to be narrowly construed. Government Minister Lord Williams stated that to be admitted, the behaviour must be ‘so unusual that it would be wholly unreasonable to explain it as coincidental’. ⁷⁹ Further, the exception was not to cover:

evidence of a general approach towards consensual sex such as a predilection for one night stands, or for having consensual sex on a first date. Still less does it include the fact that the complainant has previously consented to sex with people of the same race as the defendant, or has previously had sex in a car, for example, before alleging that she was raped in a car. Such behaviour could reasonably be explained as coincidental, as it falls within the usual range of behaviour that people display. ⁸⁰

The problems began with Lord Clyde in R v A when he stated that the similarity provision ‘does not necessitate that the similarity has to be in some rare or bizarre conduct’. ⁸¹ It will be remembered that R v A involved an alleged prior relationship, with Lord Clyde’s opinion seeking to find ways to bring such evidence within the confines of s. 41. One way to do so was to give an expansive interpretation of the ‘similarity’ exception to include relationship evidence. Lord Clyde’s focus, therefore, was on sexual history evidence with the accused (not third parties), as he made clear when stating that admitting third-party evidence ‘is not the question in the present appeal’. ⁸²

In any event, while Lord Clyde’s statement that rare or bizarre conduct is not required has been cited with approval, no notice appears to have been taken of his further comments. He continued that in determining similarity, the following needs to be identified: ‘something about the sexual behaviour of the complainant on each of the occasions, such as something said or done by him or her which is not so unremarkable as to be reasonably explained as a coincidence’. ⁸³ Where something is ‘not so unremarkable’, it becomes remarkable; that is, unusual or rare. This statement, therefore, seems to be at odds with his prior opinion that rare or bizarre conduct is not needed. This brings a level of confusion to Lord Clyde’s comments and while this may not have been his intention, it is the meaning of his words.

At best, therefore, Lord Clyde’s opinion on the scope of the similarity exception is valid only in relation to sexual history evidence with the accused. In relation to third-party evidence, his opinion lacks clarity, his interpretation of the law is questionable by reference to parliamentary intention and it is, in any event, obiter. Nonetheless, his statement that similar conduct need not be rare or bizarre to satisfy the exception has been followed in subsequent case law including Evans.

The current position is best examined by looking, first, at the most recent Court of Appeal judgment on the similarity exception, R v Guthrie. ⁸⁴ Handed down shortly after Evans, though making no reference to that case, the Court of Appeal sought to summarise the applicable law on the similarity exception. It emphasised a number of key elements but, problematically, failed to draw a distinction between evidence with the accused and third parties.

The court began by stating that a ‘striking similarity’ is not required, citing as authority Lord Clyde in R v A. ⁸⁵ Instead, all that is required is a ‘relevant similarity’. This provides little real guidance beyond the surely obvious requirement of relevance. Further, in neglecting to distinguish between evidence with the accused and with third parties, the court does not recognise that Lord Clyde’s comments are obiter in relation to third parties (and open to being distinguished on that basis as well as in relation to parliamentary intention).

Nonetheless, the court’s third ‘principle’ provides an example of similarities that might be deemed irrelevant. It approved the ruling in R v Harris, specifically that if the evidence would be ‘tantamount’ to saying that the complainant was a person who engaged in casual sex in the past, and therefore would have been more likely to do so on the occasion in question, cross-examination will not be allowed. ⁸⁶ This is a welcome rejection of this form of evidence. However, if we look in more detail at the specifics of R v Harris, there are concerning undertones that take on greater significance in light of the expansive ruling in Evans.

In R v Harris, the defendant wished to adduce evidence regarding the complainant’s experience of alleged drunken and ‘risky’ sexual encounters with strangers. The trial judge was rightly robust in dismissing this application as it amounted to saying that as the complainant had engaged in casual sex in the past with other men, she was more likely to have consented to the defendant on this occasion. ⁸⁷ This would appear to be a straightforward and obvious ruling, recognising that consent is to a person not a circumstance. On appeal, however, the Court of Appeal said that this was not an ‘easy’ case, without giving any more reasons as to why. The Appeal Court did decide that the trial judge’s ruling was within his ‘margin of judgment’, but this is not exactly a ringing endorsement. ⁸⁸ The Court of Appeal was clearly of the view that this was a marginal case, with the implication that they themselves might have decided the case differently. Yet, the so-called similarities related simply to sex with strangers (men other than the accused), following the consumption of alcohol. If this were to satisfy a similarity ruling, then vast swathes of sexual behaviour would be apt to be admitted, seriously undermining Parliament’s intention to restrict the use of sexual history evidence, especially that with third parties.

Interestingly, therefore, we have the Court of Appeal in R v Harris only reluctantly upholding the first instance ruling excluding third-party evidence relating to casual sex, but the later Appeal Court in R v Guthrie incorporating the first instance judicial comments into its ‘principles’. To the extent that this means, most recently, an endorsement of the first instance approach, it is welcome. However, this also tells us that decisions regarding admission are not clear-cut and judges do take different views; potentially a justifiable exercise of judicial discretion. However, it also underlines the lack of clarity in this area of law which encourages defence applications, at the same time as discouraging complainants from reporting and giving evidence. Furthermore, the irrelevance and highly prejudicial nature of the sexual history evidence with third parties being considered in R v Harris should have been obvious. ⁸⁹ If it is not apparent that s. 41 should be excluding evidence of casual sex with third parties, then it is not difficult to understand why this area of law has become the subject of reform proposals to further limit judicial discretion.

The judgment in R v Harris and its concerning undercurrents has resonances with the earlier Court of Appeal judgment in R v Hamadi. ⁹⁰ In this case, the victim accepted a lift from the defendant, whom she had not met until that time, late at night and instead of taking her home, he drove to deserted ground and raped her. The defendant claimed consent and sought to introduce evidence of the complainant’s previous sexual activity with men other than her boyfriend on the grounds of similarity, namely, that the complainant instigated sexual activity, it took place outside in relatively public places, in winter and while she was in a relationship with another. ⁹¹ The trial judge refused the application, holding that any such evidence had no bearing on the issue of consent, an admissibility ruling upheld by the Court of Appeal. However, in giving judgment, the Appeal Court emphasised that the victim’s supposedly ‘promiscuous nature’ was of a different nature to evidence such as someone being prepared to ‘pick up strangers off the street’ (which is what the allegation was in Hamadi). ⁹² This appears to suggest that while evidence of general promiscuity was not sufficiently similar (or relevant), if there had been evidence relating to ‘picking up strangers’, the ruling might have been different and the evidence deemed admissible. The clear implication is that it was only that her previous ‘promiscuous’ sexual activity had not been with ‘strangers’ that saved her from having this evidence adduced. ⁹³ In both R v Harris and R v Hamadi, the Court of Appeal excluded sexual history evidence with third parties. However, they were not unequivocal and robust judgments. They harbour much potential for defence teams seeking to introduce sexual history evidence, including with third parties.

About the only potentially helpful guidance on ‘relevant similarity’ was offered in R v Harris, with the Court of Appeal describing the case of R v T (Abdul) as an ‘easy’ one where the ‘the similarity was so clear it was not disputed’. ⁹⁴ The case involved an alleged rape by a former partner that took place within a children’s climbing frame in a park. The defence wished to adduce evidence that consensual sexual activity had taken place, between the parties, in the same climbing frame a few weeks before the alleged rape, and in the same sexual position (standing up and from behind). The Court of Appeal held that this evidence should have been permitted under the similarity exception, referring to the climbing frame and sexual position, and quashed the conviction. While it remains possible to dispute the relevance of this material, the judgment does at least attempt to clarify that such a situation ‘easily’ passes the threshold of admissibility of similarity evidence. However, it does raise many further questions. What if the activity had been in the bushes in the park, not the climbing frame? Where, for example, does this leave sexual activity taking place in other circumstances, such as in a car? During the s. 41 legislative debates, the government identified this as a factual scenario outside of the scope of any similarity exception. ⁹⁵ Further, no reference is made, either in R v T (Abdul) or in R v Harris, to this also being a case of sexual history evidence with the accused which should put it on a different footing to third-party evidence. It seems most likely that R v T (Abdul) is an ‘easy’ case because of its relative peculiarity (and it is sexual activity with the accused); indeed, it might even be said that it is a ‘rare’ or ‘bizarre’ scenario. But, as the Court of Appeal in R v Guthrie emphasises that only a ‘relevant similarity’ is required, we are little wiser.

Nonetheless, in continuing their summary of key principles, the Court of Appeal in R v Guthrie suggested that there must also be a ‘sufficient chronological nexus between the events’ to render the sexual material probative. ⁹⁶ The court referred to R v MM where it was held that sexual activity three to four months prior to the alleged offence was not sufficiently close in time to be relevant. ⁹⁷ Further, a distance of one year in R v Guthrie itself was too remote. While both of these cases involved sexual history evidence with the accused, in situations where it is deemed that third-party evidence is relevant, this principle should go some way towards potentially limiting fishing expeditions regarding a complainant’s prior sexual history.

Finally, the court stated that in all cases ‘there is an exercise of judgment’ and that this will demonstrate the ‘high threshold’ required. ⁹⁸ This does little to help determine the scope of the exception, other than, as identified above, emphasising the fluid nature of judicial interpretations. While the court stated that there is a ‘high threshold’, it continued that only a ‘relevant similarity’ is required. Evidence must be ‘truly probative’, though there is always an overarching ‘exercise of a judgment’. There is no differentiation in the case law between evidence relating to third parties and that with the accused, either factually or in terms of Lord Clyde’s influential obiter dictum. In relation to specific factual scenarios, we only know that where the evidence is with the accused, sex in a public climbing frame is sufficiently similar. Where the evidence involves third parties, there is little to no guidance other than the (lukewarm) exclusion of casual sex (R v Harris) and ‘promiscuity’ (though maybe not ‘picking up strangers’, R v Hamadi). Further, in R v Guthrie, there is a (surely deliberate) failure to refer to the Evans judgment, despite similarity being the central issue. How does R v Evans fit into these key ‘principles’? Is it an ‘easy’ case? Does it exemplify a ‘high threshold’? Or, is it simply an ‘exercise of judgment’ with which the court in R v Guthrie perhaps disagreed (hence the lack of endorsement)? It is to an examination of the Evans case that we now turn.

‘Not an Issue of Consent’: Reasonable Belief and ‘False’ Allegations

The second most significant exception permitting sexual history evidence is where the evidence is deemed ‘not an issue of consent’ (s. 41(3)(a)). This is a potentially broad exception, with creative defence teams reframing evidence to admit it under this provision. While there are good examples of the courts robustly rejecting some of these more inventive applications, ¹¹⁶ there are other cases where sexual history evidence with third parties is more commonly introduced. As well as including the reasonable belief in consent defence, this provision has been held to permit evidence of motive to lie and supposedly false allegations. ¹¹⁷

Sexual Activity ‘At or About the Same Time’ as the Alleged Rape

The third exception to the general rule of exclusion is for evidence of sexual behaviour taking place ‘at or about the same time’ as the alleged sexual offence (s. 41(3)(b)). In Parliament, it was suggested that the time frame allowed should be no longer than 24 hours, and the House of Lords in R v A declined to interpret the provision more widely. ¹²⁹ While this does provide some limitation on the exception’s scope, there is unfortunately no requirement that the evidence has a connection to the events at issue, meaning that entirely unrelated activities could be admitted as long as within this time frame. ¹³⁰ Unfortunately, therefore, entirely disconnected sexual activity with third parties can be adduced in evidence, as happened in R v Mukadi. ¹³¹

In this case, the Court of Appeal upheld an appeal against a rape conviction on the basis that evidence had been excluded at trial which rendered the conviction unsafe. The excluded evidence related to an incident earlier in the day where the complainant got into a car and exchanged phone numbers with a man other than the accused. Later the same day, the complainant met the appellant and the alleged rape took place. The trial judge had excluded the evidence with the third party stating quite rightly that ‘this kind of evidence is exactly that which the statute is designed to exclude’. ¹³² In particular, he continued that the fact that a person may be prepared to consent to sexual activity with someone else does not assist on the issue of whether she consented to sexual activity later in the day with the accused. ¹³³ Further, the evidence sought to be adduced was ‘potentially character blackening’. ¹³⁴ The Court of Appeal disagreed, holding that excluding this evidence rendered the conviction unsafe. Di Birch was rightly trenchant in her criticism, suggesting that the effect of the judgment is that many women ‘run the risk’ of being ‘assumed open to the advances of all and sundry the minute she admits that she is prepared to contemplate the prospect of sex with someone she finds attractive’. ¹³⁵ While some might argue that this is a ‘rogue’ decision, ¹³⁶ it remains a worrying example of the approach of the Court of Appeal permitting the use of third-party evidence. It underlines not just the specific problem with this exception not requiring a relevant connection to the events at issue, but the broader question of sexual history evidence with third parties being considered relevant to consent.

Admitting Evidence to Rebut the Prosecution

The final exception allows sexual history evidence to be adduced where it is necessary to rebut prosecution claims, so long as it goes ‘no further than necessary’ (s. 41(5)). While this is a largely uncontroversial provision, vigiliance is required as this provision is not subject to s. 41(4) which prohibits evidence if the only or main reason is to impugn the credibility of the complainant. ¹³⁷ Further, Scottish research revealed that a similar exception was being used by the defence to challenge evidence such as the source of injuries, with little or no evidential basis supporting the need for sexual history evidence. ¹³⁸

Clarity of Purpose and Principle: Challenging the ‘Twin Myths’

The Canadian provisions on sexual history evidence begin with clear statements of principle which seek to delineate the scope of the provisions. In particular, the Criminal Code states that sexual history evidence may not be admitted to support inferences supporting the ‘twin myths’, namely, that by reason of that sexual activity, it is more likely that the complainant consented or is less worthy of belief. ¹⁴¹ An equivalent provision would significantly strengthen English law and restore the notion of consent as being person and situation specific, rather than capable of being inferred from previous conduct. While such a change should apply equally to evidence with the accused and third parties, a reform in relation to the latter would at least shift current understandings and undermine the impact of Evans. ¹⁴² Such a legislative reform, therefore, would exclude any sexual history evidence with third parties which was seeking to infer consent. This would bring English law closer to other jurisdictions, such as Michigan, where all third-party sexual history evidence is excluded other than evidence of specific instances to show the source or origin of semen, pregnancy or disease. ¹⁴³ Any amended legislation could also state that, as a matter of principle, evidence should only be admitted in exceptional cases, helping to counter current practice. ¹⁴⁴

Judicial Guidance on Reasons for Decisions

Decision-making could also be improved by specifying the issues to be considered when determining an application, again following the Canadian practice. ¹⁴⁵ This approach provides clarity regarding the varied purposes of the legislation and aims to ensure as thorough an examination of the issues as possible. Such a provision is recommended, coupled with a procedural requirement that a written explanation is provided of the grounds adopted, not just a reference to the criteria or, even worse, just a citation of the relevant section of the Act. ¹⁴⁶

Significant Probative Value Not Substantially Outweighed by Risk of Prejudice

As well as clarifying the rationales for restricting sexual history evidence, legislation should raise the threshold of admission before potentially highly prejudicial and distorting material is admitted. Section 41 currently requires that evidence is only admissible if the ‘refusal might have the result of rendering unsafe a conclusion of the jury’ or court, on ‘any relevant issue’ (s. 41(2)(b)). This is a low threshold given the highly prejudicial nature of sexual history evidence and when compared with alternatives in other jurisdictions. ¹⁴⁷ Canadian law, for example, provides that evidence may only be admitted if it has ‘significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice’ (s. 276(2)(c)). This is an important qualification as the thresholds are high: note the requirements of significant probative value, not substantially outweighed by risks. ¹⁴⁸ Further, this provision rightly emphasises that the risk of admitting such evidence is to the proper administration of justice, not only the privacy and dignitarian rights of the complainant. The inclusion of such a provision, properly recognised and utilised, might go some way towards enabling judges to take a more robust approach without fear of appeals.

Legal Representation for Complainants

Another measure which would support judges to determine cases according to the principles set out in any revised legislation would be the granting of legal representation to complainants. When considering how to improve rape trials, a common recommendation is to extend legal representation and standing to complainants. ¹⁴⁹ Controversial due to its perceived risk to the adversarial process, a compromise suggestion has been to grant standing to complainants where an application to admit sexual history evidence is made, as is the case in Ireland. ¹⁵⁰ Such a measure would have the benefit of guaranteeing complainants a voice in the decision-making process, as well as questioning agreements between the prosection and defence which may not be in the best interests of the complainant. Nonetheless, as the Irish experience demonstrates, any such measure can only have effect if financial support is available to exercise such rights and procedural safeguards are assiduously followed. ¹⁵¹

Extending Restrictions to Prosecution Evidence

A further safeguard would be to extend s. 41 to the prosecution, following the example of other jurisdictions. ¹⁵² At present, the prosecution are free to introduce evidence of the complainant’s sexual behaviour, often providing the necessary background and context to the case. However, research suggests that the prosecution’s approach can often undermine the aims of sexual history restrictions by introducing evidence (without challenge or judicial oversight) which, in fact, may be prejudicial to the complainant and adversely impact on the truth-seeking function of the trial. ¹⁵³

Improving Definition of ‘Sexual Behaviour’

The scope of any restrictions is dependent on the definitions used, specifically here the meaning of ‘sexual behaviour’. Currently defined as ‘any sexual behaviour or other sexual experience’ (s. 42(1)(c)), this provision is potentially broad. And, in the context of seeking to limit the use of sexual history evidence, this is positive. For example, the trial judge in R v Mukadi excluded evidence of the complainant talking to and exchanging phone numbers with a third party where the defence had sought to imply this was preliminary sexual behaviour and/or prostitution. ¹⁵⁴

However, the somewhat opaque nature of the definition, together with a lack of clear rationale behind the legislative regime, engenders ambiguity. For example, in one case, cross-examination was allowed regarding two relationships with third parties, and held to be outside of the s. 41 restrictions, on the basis that these were questions about the ‘relationships’ and not ‘sexual behaviour’. ¹⁵⁵ Similarly, evidence of text messages showing a 12-year-old girl participating in ‘risqué conversations’ were held to be outside of s. 41, and therefore not subject to restrictions, though they also could be used to infer sexual activity. ¹⁵⁶ A definition, therefore, which at least included such implied sexual behaviour, may go some way towards strengthening the restrictions on these forms of evidence. ¹⁵⁷

Exclude Evidence Supporting Reasonable Belief in Consent

As noted above, there is widespread concern that sexual history evidence is permitted to demonstrate reasonable belief in consent, even where excluded on the grounds of actual consent. Another necessary reform, therefore, is to amend s. 42(1)(b) such that belief in consent no longer comes within ‘not an issue of consent’, particularly in relation to third parties.

Removing or Reforming the Similarity Exception

The most suitable reform regarding the current similarly exception is to remove it entirely on the dual grounds of the irrelevance of this form of evidence and its prejudicial effects. If the evidence is sufficiently probative and germane to a relevant issue in the trial, it will come within one of the other exceptions such as rebuttal evidence. The justification for this position was given long ago by Canadian Justice L’Heureux-Dube:

The exclusion of ‘pattern’ evidence and ‘habit’ evidence is not unconstitutional; the mythical basis of these arguments denies their relevance. ‘Pattern of conduct evidence’ usually occurs where the complainant has had consensual sexual relations in circumstances that look much like those supporting the assault allegation. Such evidence is almost invariably irrelevant. It is highly prejudicial to the integrity and fairness of the trial process and, in any event, is nothing more than a prohibited propensity argument. Arguments in its favour depend for their vitality on the notion that women consent to sex based upon such extraneous considerations as the location of the act, the race, age or profession of the alleged assaulter and/or considerations of the nature of the sexual act engaged in. ¹⁵⁸

Strengthening Procedural Requirements

Finally, while all of the above recommendations would create a significantly fairer and better law than the current s. 41, the enforcement of stronger procedural rules may have an even greater impact. ¹⁶¹ Indeed, even just requiring the existing rules to be followed would improve considerably the impact and effectiveness of the current law. The current rules do require written applications in advance, together with justifications and specifics of the evidence to be adduced. ¹⁶² A hearing is required if the prosecution is to challenge an application, where the judge so demands or the application is made less than 14 days before the trial. If there is to be a hearing, it is to be in private, which sounds sensible though as this means excluding the public, the complainant is also excluded. ¹⁶³

However, there is no requirement that late applications need be in writing, nor the reasons for granting or refusing the application. Nor are there any sanctions laid down for late applications. ¹⁶⁴ Kelly et al.’s review s. 41 found that, contrary to the requirements of advance and written notice, the ‘vast majority’ of s. 41 applications took place on the first day of the trial. ¹⁶⁵ Worryingly, the majority of applications related to a previous relationship with the accused which is evidence that could easily have been considered in advance of the trial. ¹⁶⁶ This failure to follow the procedures demonstrates a worrying disregard for rules designed to ensure appropriate and effective scrutiny of applications. It suggests that the risks to the administration of justice are not sufficiently recognised, nor is there sufficient respect for the complainant who deserves advance notice of evidence being adduced about her or his sexual behaviour.

Suggested reforms therefore include an obligation for applications to be made pre-trial and in writing, with the prosecution required to respond to each application. ¹⁶⁷ A hearing should be mandatory to ensure a careful scrutiny of applications, with the complainant permitted to attend. ¹⁶⁸ Requiring a hearing will help to ensure that the prosecution actively consider (and challenge) the use of sexual history evidence. ¹⁶⁹ There must be stricter scrutiny of any late applications (which should still be in writing) with them only being accepted where the evidence was demonstrably not available at an earlier stage. Judges should be required to give reasons for their decision in writing and the prosecution (and complainant if granted additional rights) should have a right to appeal a decision to introduce evidence. ¹⁷⁰