The most important announcement this week on the topical issue of rape trials came from former High Court Judge, Dame Laura Cox. After a two year inquiry, leading a distinguished panel of lawyers and others she concluded that complainants’ sexual history was too frequently and inappropriately used in rape trials and recommended that the Government review the law on whether such evidence should ever be use to show consent.
Fear of being accused of having sex with other men has, for years, deterred women from reporting rape. Men called men to say she had had sex with them to depict her as promiscuous, unreliable and more likely to have consented to the rape. Judges had power to prevent it from 1976 but rarely did and it was an effective tactic, rape convictions were low and women risked their reputations if they came forward, despite formal anonymity.
In 1999, the Labour Government passed Section 41 of the Youth Justice and Criminal Evidence Act, curtailing the use of complainants’ sexual behaviour with other men as evidence of consent, save for very limited and obscure circumstances. This law was intended to end the use of the promiscuity/dishonesty myths but in the world at large, those myths still exist, defendants want to use them in front of juries and, as the panel found, are succeeding far too often.
The Panel refer to LimeCulture’s 2017 survey of 36 Independent Sexual Violence Advisors (ISVAs) across England and Wales. Across 550 trials, over two-years, four ISVAs (11%) said that 50-74% of cases they were involved with had included sexual history evidence. Seven (19.5%) said that between 25-49% of their cases had, and 16 (44.5%) said that 1-24% of their cases had. Only nine (25%) said that they had not seen sexual history evidence used.
The Panel commented: “These numbers are high, but they could represent legitimate uses of the section 41 process. However, LimeCulture also asked ISVAs, in cases where a victim was (so) questioned whether the victim was informed of it before or during the trial. Of 32 ISVAs responding, 21 said that they had seen cases in which “the complainant was not aware that they would be questioned about their previous sexual history.” This is in contravention of the Criminal Procedure Rules. Thirteen ISVAs said that more than half of complainants they saw were unaware they would be questioned. ”A report published by Dame Vera Baird QC, Northumbria Police and Crime Commissioner, drawing on observations of 30 rape cases, found that the complainant’s previous sexual conduct was used in eleven cases. In seven of these eleven the proper procedure was not followed and in two of those seven, defence barristers made allegations with no application or consent at all. “These figures alongside the experience of women’s sector organisations demonstrate that it is likely that sexual history is being frequently introduced without a proper application under S41. there are good reasons to conclude that change is necessary…. the proposal (by Harriet Harman and others) to prohibit the use of any sexual history evidence to show consent should be taken seriously. Government should immediately review the law”
The panel could also have relied on a Home Office review of S41 in 2006 where case tracking showed that in 283 Crown Court rape cases, one third involved applications to call sexual behaviour evidence.
Equally they could have heard from the operations co-ordinator at Rape Crisis South London, who, with her team find sexual history being used in almost half of the trials they attend with victims.
In Scotland where similar restrictions were introduced in 2002, a study by MSP John Finnie found that in the first 3 months of 2016 there were 57 applications to use sexual history, of which only 9 were refused (15.7%) Yet further evidence that the law is not working properlycomes from the Director of Public Prosecutions who reviewed 25 Section 41 applications granted during 2016. She expressed concern on finding that ‘there was only brief reference to the legislative framework and case law’ in argument, in some cases and in others ‘limited analysis with regards to the appropriate form of questioning’ and in a third of them (8 cases) no ruling was made in open court, despite that being a legal requirement. She was sufficiently bothered by both those findings and the ones from Northumbria, given the CPS duty to protect complainants against inadmissible sexual history, to issue new legal guidance and require every rape specialist prosecutor to attend more training. Perhaps somebody has done the same for the judges.
A cross party group of Parliamentarians is leading the campaign to ban sexual history evidence from all rape and sexual abuse trials as evidence of consent, to end this misuse of the law and finally to exclude the use of the long-established myths about women and sexual history from the justice system.
A particular concern was the significant widening, in the Ched Evans case, of a narrow loophole in section 41.That Loophole allowed the admission of sexual behaviour so similar to the complainant’s behaviour at the time of the alleged offence that it cannot reasonably be explained as a coincidence (s.41(3)(c)). This was a late amendment which the Minister in charge of the Bill emphasised would only apply where behavior was ‘so unusual’ as to defy coincidence. However in Evans case the ‘similar behaviour’ was that the complainant had been drinking, directed her partner into “doggy style” position, and used specific phrases of encouragement - hardly conduct ‘so unusual’ as to defy coincidence.
The forthcoming domestic abuse bill is an opportunity for reform. It must end the twists and turns like the Ched Evans one, by which defendants, often without making any application, drop true or false sexual history into trials to trigger rape myths. It must also ensure that any process to admit sexual history for a valid reason, not consent, cannot be done in court in the shoddy way that caused the DPP so much concern last year.