Latest Blogs The problematic use of past sexual history as evidence in rape trials The problematic use of past sexual history as evidence in rape trials by Kez Bhola-Dare and Jamie Fletcher Whilst there are a range of sexual assault myths that can influence rape trials, this blog focuses on the myth that a women’s sexual history is an indicator of consent to the act in question. Parliament did attempt to resolve the problem of prosecutions introducing such evidence into sexual offence trials in 1999, through Section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA). However, judicial interpretation of the European Convention on Human Rights (ECHR), which is incorporated into UK law through the Human Rights Act 1998 (HRA), has led to a major watering down of Parliament’s solution. This blog post will explain this act of judicial activism, the problems it causes for ensuring justice within rape trials and offer a possible resolution to move forward with. The problem with allowing past sexual history evidence and Parliament’s solution It is argued that prosecution using a complaint’s past sexual history evidence is both morally and legally wrong. Introduction of such evidence is largely used as a tactic to undermine the credibility of the complainant to the jury. This plays on an old-fashioned myth that the more a woman consents to sexual activity, the less serious one should take their claim of not offering consent to one particular sexual activity. It is analogous to rape myths that paint a woman’s morality based upon their choice of clothes. Morally though a woman should not be found to have given consent solely because she has previously done so. In this sense, every incident of agreeing to sexual intercourse should be judged upon its own merits and gain no legitimacy from previous grants of consent. The ‘cup of tea’ metaphor can be used to illustrate this. A person can want to drink one, two, three cups of tea, but if they say ‘no’ to a fourth, that ‘no’ is valid regardless of their desire to drink the other cups. Legally, juries should be focusing only on whether consent was given for the offence on trial, not whether valid consent was given in the past. The law regulating the introduction of past sexual evidence is Section 41 of YJCEA 1999. With Section 41 YJCEA, Parliament attempted to protect complainant’s in proceedings involving sexual offences by severely restricting evidence or questions about any of their past sexual behaviour. The aim of this statutory provision was to reduce the emotional trauma a victim might face within a trial. This was necessary because if a victim fears the prospect of having their past sexual history evidence discussed through a trial, in front of their friends, family and the general public more widely, they might choose, even if they have a strong case, to not offer evidence. This statutory provision, therefore, exists to limit the potential for shamming a victim with their past sexual history. Nonetheless, there exists two exceptions to this rule. Firstly, there are four extremely narrow exceptions outlined within the YJCEA whereby past sexual history might be heard; where the defence wishes to introduce the evidence to rebut prosecution evidence, whereby the legal issue raised in the case does not concern consent, whereby the other sexual activity took place at the same time as the sexual activity in question, and finally, where the issue is consent, and the evidence relating to the complainant’s sexual behaviour is so similar to that alleged to be part of the event. These exceptions are technical and narrow. Secondly, and more troubling for the integrity of the rule that an individual cannot introduce past sexual history evidence is the common law rule established in R v A (No 2) [2001] UKHL 25. In this case, judges created an exception based on an individual’s rights from the European Convention of Human Rights. If a defendant raises that not hearing the evidence will undermine their Article 6 rights to a fair trial, the court held that the past sexual history evidence may be heard. This judicially created exception is more troubling. It is through this piece of judicial activism that s41 has come under assault. How the exception established in R v A has undermined Section 41 of the YECJA 1999 Most famously, Ched Evans, a professional footballer, used the R v A fair trial exception to demonstrate similarities between his complainant’s sexual behaviour with him, and with previous sexual partners. Evans believed this corroboration of sexual events would allow him to make his case to the jury that the complainant did in fact consent with him. This evidence was admitted so that the defence could say, “She consented to sex with other men, therefore she must have consented to sex with this man”. It was admitted because of the specific similarities identified by the court which, it was held, were relevant to the issues of whether the complainant consented and whether Evans reasonably believed that she was consenting. (The Secret Barrister). This led the jury to come back with a ‘not guilty’ verdict after deliberating for only 2 hours. This example demonstrates how this judicial interpretation of the past sexual history evidence rule threatens to become an open invitation to the defence to trawl through a complainant’s sexual history seeking ‘similarities’. And it focuses attention on the complainant’s lifestyle and character, rather than on the defendant’s actions at the time of the alleged offence. (McGlynn) Highlighting prominent cases like Evans is not sufficient. To understand the extent of this problem, the quantitative data must be analysed. In 309 rape trials analysed in a Crown Prosecution Audit, 13% of cases had applications made asking the court to hear past sexual history evidence despite s41’s prohibition, and 8% were successful. This means almost 1 in every 10 cases sees past sexual history evidence successfully introduced into a trial. Such statistics mean that the YJCEA has inadequately stopped the introduction of past sexual history evidence and not resolved the chilling effect problem that discouraged victims to bring a case in fear of having their sexual history used against them. It is daunting enough experience to have a courtroom hear your story as it pertains to this one event, let alone have them discuss your entire sexual history, preferences and sexual habits. The consequence of the rule created in R v A and publicised through Evans raises the terrible prospect of fewer complaints wanting to go forward with their cases to avoid embarrassment and potential ‘slut shaming’ that comes with this sort of evidence, and is only further reason that evidence needs to be limited to the current offence. Evidence of this fact is clear in an Official Statistics bulletin produced by the Ministry of Justice, Home Office and the Office for National Statistics reporting on Sexual Offending in England and Wales. Females who had reported being victims of the most serious sexual offences in the last year were asked, regarding the most recent incident, whether or not they had reported the incident to the police. Only 15 per cent of victims of such offences said that they had done so. Frequently cited reasons for not reporting the crime were that it was ‘embarrassing’, or that they saw it as a ‘private/family matter and not police business’. These are similar emotions evoked when past sexual history evidence is weaponised against a complaint in a court. People will not bring a case if they feel uncomfortable with the trial process, and the potential of their sexual history being heard as evidence against them will contribute to discomfort. A special committee chaired by Heilbron J found that admission of sexual history evidence was humiliating for rape complainants and led to a specific number of complainants either not reporting or withdrawing complaints of rape. It is clear that the decision in R v A, as shown through Evans and the above statistics, drastically undermines the purpose of s41 YJCEA 1999 by greatly increasing the situations in which past sexual history can be heard. Another problem with the increased use of past sexual history evidence is that the way in which it is used, to persuade the jury of the sexual promiscuity of the complaint, plays to society’s worst misconceptions about consent. How the exception established in R v A builds upon public misunderstanding of consent by perpetuating rape myths In a recent YouGov study, the British people demonstrated some incredibly misinformed views on what it means to give consent. Shockingly, the survey showed the following; A third (33%) of people in Britain think it isn’t usually rape if a woman is pressured into having sex but there is no physical violence. A third of men think if a woman has flirted on a date it generally wouldn’t count as rape, even if she hasn’t explicitly consented to sex (compared with 21% of women). A third of men also believe a woman can’t change her mind after sex has started. 'Stealthing': 40% think it is never or usually not rape to remove a condom without a partner’s consent. Almost a quarter (24%) think that sex without consent in long-term relationships is usually not rape. These views do not correspond with the legal rules, which offer a definition of consent that is far more restrictive. For example, it may lead the jury to accept that consensual sex once means that any future sex was with the woman's consent. That is far from being necessarily true and the question must always be whether there was consent to sex with the accused on this occasion and in these circumstances. In fact, a woman is entitled to withdraw consent even within ongoing sexual activity to which they consented to. Moreover, a woman can also put certain conditions within sexual activity. For example, a woman might require a man wears a condom during sexual activity. If the man then chooses to ‘stealth’ the woman, and remove the condom during sexual activity, consent is no longer valid. The rule that a person’s sexual history has an effect on the viability that they consented to this sexual activity seems to undermine these rules. The law, therefore, exists to a certain degree to protect complainants from these regressive views that a jury may have. Analysis of public opinion on the topic of rape leads to the conclusion that perhaps the problem isn’t that sexual history is allowed to be heard as evidence, but how the jury interprets it. When sexual history evidence is admitted, even where it is relevant, juries will place considerable weight upon it and become ‘desperately moralistic’, rather than using the tools, which the law is clear about, to decide guilt. Rape complainants are judged by the notion of ‘appropriate femininity’; simply that women should be adhering to certain standards. This is combined with perceptions of ‘real rape’ and ‘non serious’ rape, whereby people believe that if a woman has been raped by a partner, rather than a stranger, it is not as serious. In addition, juries may misinterpret what the evidence actually means. It is wrong to assume that a person who has had many sexual partners will be judged as being more likely to consent to intercourse on the occasion in question. In fact, there may be a correlation between sexual history and vulnerability to rape, where women become a legitimate target. (Bain). Further, sexual history may be a weaker indicator of consent as it makes it less likely she would lie about it. To prevent juries wrongly interpreting evidence, we need to establish a way to educate the public, and potential jurors, to move away from believing rape myths and victim blaming, whether it be due to their own misconceptions, pressure from other jurors, or being lead by the defence, and only apply the law to the case in front of them. Questions also exist about the credibility of the evidence. Firstly, a defendant would only need to get one or two people to come forward with ‘’relevant evidence’’ and the evidence could be heard. In a corrupt society, people could be dishonest and throw the case. Witnesses might use the trial process to settle a score with the victim and make an improper attack on a victim’s character, and juries might not recognise this. Unamicable break ups with partners splitting on bad terms can create bias and a desire to use an ex partners sexual history against them. A layman can be easily manipulated into a new opinion if they have their minds changed about a person’s character. Lawyers are interested in winning their case, and will say exactly what they need to in order to move the jury to their side. Everything they say is for an effect. Whilst this blog has presented strong arguments against the use of past sexual history evidence, it is important to note that the defendants have raised a human rights question with the exclusion of past sexual history evidence, and whenever a human right violation is claimed, its merits must be seriously considered. In the UKs justice system, the ECHR ranks higher than domestic law and judges must interpret statutes in order to be compatible with human rights. Nonetheless, it does not follow that the way in which the House of Lords (now Supreme Court) went about recognising this right was correct. Rethinking how the House of Lords (now Supreme Court of the United Kingdom) should have dealt with inconsistencies between Article 6 of the European Convention on Human Rights and s41 YJCEA 1999. The HRA, which incorporates the human rights, including Article 6’s right to a fair trial, into UK law, contains two mechanisms that judges can use to ensure compatibility. The judges in R v A used the HRA’s Section 3 power. Section 3 provides judges with the ability, when linguistical sensibilities will allow, to redefine the meaning of statutory law to make that law compatible with the ECHR. In using this power, it is believed that the judges did not merely offer a reinterpretation of Section 41’s past sexual history evidence inadmissibility rule, they fundamentally undermined its purpose. In light of Evans, and the 8% usage of past sexual history evidence, it must be concluded that the semantics of Section 41 should have led the House of Lords to conclude that they were unable to reconcile the statutory language with the ECHR and to trigger a declaration of incompatibility under Section 4. This second route of action would have allowed the court to defer the question on the conflict between the rule declaring past sexual history evidence inadmissible back to Parliament. Parliament could have then decided whether to uphold the rule and ignore the fair trial claims, modify the rule to achieve a better balance, or scrap the rule altogether. To conclude, therefore, Parliament must step in to correct R v A’s judicially created exception. Parliament should pass a new law that offers a more definitive answer on how past sexual history evidence and the right to a fair trial should be reconciled. It is forwarded that this law should be stricter on when past sexual history evidence should be introduced. Nonetheless, even if the law is not stricter, the clarity that specific and accessible legislation would provide, over the search for a principle amongst an array of common law cases, would be greatly welcomed. Kez Bhola-Dare is a 2nd Year Law Student at Bournemouth University and Jamie Fletcher is a Lecturer in Law at Bournemouth University. Sources: Case Law R v A (No2) [2001] UKHL 25 R v Evans [2017] 1 Cr App R 13 Secondary literature Bain L, ‘The Failures of ‘Shield Legislation’: Sexual History Evidence, Feminism and the Law’ Aberdeen Student Law Review 96 Choo A, Evidence (5th edn, OUP 2018) Counsel Magazine ’Sexual history evidence: fair game?’ 2016‘ https://www.counselmagazine.co.uk/articles/sexual-history-evidence-fair-game McGlynn C, ‘Rape Trials and Sexual History Evidence: Reforming the Law on Third party Evidence’ (2007) 81(5) J Crim L 367 Ministry of Justice, Home Office and the Office for National Statistics – An Overview of Sexual Offending in England and Wales https://www.gov.uk/government/statistics/an-overview-of-sexual-offending-in-england-and-wales Ministry of Justice, Limiting the use of complainants’ sexual history in sexual offence cases, 2017 https://www.gov.uk/government/publications/limiting-the-use-of-complainants-sexual-history-in-sexual-offence-cases The Secret Barrister, ’10 myths busted about the Ched Evans case’ 2016 - https://thesecretbarrister.com/2016/10/14/10-myths-busted-about-the-ched-evans-case/ YouGov 2018 ‘Public’s attitude to sexual consent’ https://yougov.co.uk/topics/resources/articles-reports/2018/12/01/publics-attitudes-sexual-consent