Sexual History Is Not Circumstantial Evidence

17/10/2016 12:04
Martin Rickett/PA Wire

On Friday afternoon, I read the eleven most infuriating words I'd seen in a long time. They were a Guardian subheading: "Judges let complainant's former partners give evidence about her sex life".

I am struggling to come to terms with the fact that such a disgusting and misogynistic ideal has emerged from a British Court.

The caption accompanied a report on the retrial of former Sheffield Wednesday footballer, Ched Evans. Evans was found guilty of the rape of a 19-year-old girl in 2012. He served two-and-a-half years of his five year sentence before his release from jail in October 2014, but was cleared of all charges on Friday. Evidence of the complainant's past relationships, including her sexual preferences - provided by her past partners - contributed to Evans' acquittal.

This is not a question of Evans' innocence or guilt - I have not followed the case in enough detail and it would be inappropriate for me to challenge the decision of a jury - but an anger with the precedent set. Sexual history apparently constitutes circumstantial evidence in a court of law.

Are women now legally bound by the expectation to behave in exactly the same way with any man that they have done with any man previously in the entirety of their romantic lives?

Imagine if I went on a date; imagine that we went out for pizza. I consented to going out for pizza, and I probably would have enjoyed the pizza.

Two weeks later, I go out with another guy. He fancies going for pizza, but this time I don't.
"But your ex told me that you like pizza", he says. "Yeah", I reply, "on that date we both wanted pizza, but I'm not feeling so keen today".

Does he now have permission to slam a pizza in my face?

No, of course not, one would presume. But now, would my previous pizza-receptive behaviours be enough for him to justify the tomato and cheese based slap, regardless of my thoughts and preferences on that day?

Sexual consent - one of the simplest legal practises - has been entirely undermined by this one criminal case. An unquantifiable third-party is now apparently involved with every consent discussion; that third-party being every single person with whom the accuser has ever had sex.
The right of refusal has been removed, and replaced with another equally simple, but far more horrifying concept. If a person has certain romantic preferences, or certain personality traits or habits, if they have previously done certain things with certain people, then it is okay to assume an automatic consent.

Some people are asking for it. Some people just do not mean 'no'.

Only 15-20% of the 97,000 rape or sexual assault incidents committed every year are ever reported to the authorities, and on average, only 5.7% of these reports result in a criminal conviction. It is easy to see why victims are so reluctant to trust the justice process when fingers of blame are so easily returned back towards the victims and accusers.

Just imagine the conversations that anyone brave enough to report could look forward to.

"Had you had a drink?"

"Were you wearing a short skirt?"

The personal, intrusive enquiries could continue endlessly, and any 'wrong' answer could seemingly render any accusations pointless:

"Yeah, but, who else have you slept with?"

"How long was it before you got naked?"

"Well, what exactly was it that you did with your ex-partner?"

I, for one, am not sure that I could ever face the humiliation.