#16768 - Sexual Behaviour Evidence - Criminal Procedure and Evidence

General rule: where D charged with a sex offence, we can’t adduce evidence/ask qs about C’s sexual behaviour without leave - sometimes called ‘rape shield’ laws

Reason = evidence of sexual habits is of no substantial relevance to C’s credibility

in past, tendency argue that because woman was ‘unchaste’, her word not worthy of belief

or, idea that because has had consensual sex before, more likely consent in future - logically yes but only sometimes relevant

Rules laid down in s.41 YJCEA 99 but convoluted & badly drafted

No evidence may be adduced nor questions be asked in cross-exam about sexual behaviour - s.41(1)

Unless D given leave to do so by trial-judge

but what counts as sexual behaviour?

s.42(1)(c): any sexual behaviour or other sexual experience

Ben-Rejab 11: sexual quizzes on social media - counts - as could things like watching porn or sexting etc

Beedall 07: sexual orientation counts

P(R) 14: abortion doesn’t count

note doesn’t include anything alleged to have taken place as part of event in question

Is a prev false complaint of sex offences evidence of sexual behaviour?

T 01: essentially said evidential burden when ask if sound evidential basis for making previous complaint

All-Hilly 14: C had a good reason why didn’t pursue prev complaint (memory vague) - hence not enough to form a factual foundation for the falsity of earlier complaint

M(AM) 09: where prev complaint obviously untrue, would be absurd if couldn’t bring evidence to show this (should have evidence of this though)

note if sufficient evidential basis for falsity of C’s earlier complaints/omissions to report, allegation will also likely need get through the Bad Character Evidence hurdles

To grant leave, the judge must be satisfied that refusing leave might render unsafe a conclusion of the jury/court on any relevant issue in the case - s.41(2)(b)

And 1 of 3 exceptions!

s.42(1)(a): relevant issue in case means any issue falling to be proved by the prosecution or defence in the trial of accused

Note s.41(6) for all exceptions, evidence must relate to a specific instance of alleged sexual behaviour:

but must still be relevant - explain why - White 04

• Exceptions:

  The evidence relates to a relevant issue in the case and that issue is ‘is not an issue of consent’ - s.41(3)(a)

• s.42(1)(b): about whether acc consented to the act in question - may still be able argue belief of accused though

• But McEwan suggests will be v hard for D defend by saying ‘I believed she consented’ because often need to use evidence of past behaviour

• Does s.42(1)(b): render protection for Cs illusory?

• Gjioni Prev conversation with C in support of his reasonable belief in C’s consent was admissible - as wasn’t evidence that implied C acc did consent, rather did go to whether D believed in consent

  Relevant issue = issue of consent & the behaviour in question is alleged to have taken place at or about the same time as the event which is the subject matter of the offence (s.41(3)(b))

• A (no.2) 01: here D wanted admit evidence that had had sex 1w before alleged rape - unclear how big gap should be but said 1 week too long, suggests need to be pretty contemporaneous

• Stepenson 02: kissing other men earlier the evening of rape irrelevant because must be directly relevant to issue of consent (i.e consent to sex)

  Relevant issue = issue of consent & sexual behaviour is alleged to have been so similar (s.41(3)(c))

1. to any sexual behaviour of C which took place as part of the event which is the subject matter of the charge against the accused, or

2. to any other sexual behaviour of C which took place at or about the same time as that event…

   that the similarity cannot reasonably be explained as a coincidence

• A (no.2) 01: HL manipulated to allow in evidence of ongoing sexual r/s

• T(Abdul) 04: similar enough behaviour where for 4w before alleged rape in climbing frame in playground, D & C had engaged in consensual sexual intercourse in same climbing frame - same place, position etc

• note McGlynn says not actually as straightforward as is made out

• Evans 16: allowed evidence from W1 & 2 to support case that C consented despite intoxication - said C had prev while intoxicated directed & encouraged sexual activity

• Hallett LJ: ‘behaviour must be sufficiently similar that it can’t be explained reasonably as a coincidence’

• note s.41(4) for exceptions 1-3, no evidence shall be regarded as relating to a relevant issue if appears reasonable assume the purpose (or main purpose) is to impugn credibility

• Martin 04: purpose was to establish allegation untrue… allow if more than 1 purpose

  Where P adduces evidence about sexual behaviour & D’s evidence would go no further than to allow that be rebutted/explained

• DGF 08: C claimed consulted GP re risk of pregnancy (D sexual abuse) and that wasn’t sexually active with anyone else at time - but medical records (at time) suggested otherwise- CA said D should’ve been allowed cross-examine C on medical records to rebut the prosecution evidence!

• If F had been convicted of rape w.o evidence admitted would’ve been unsafe! Impacted on conviction for indecent assault

• Thus in case with counts of indecent assault/rape, evidence showing bias/motive fabricate rape may also be relevant to charges of indecent assault if sufficiently intertwined with rape (Lord Hope DGF)

• Aidarus 18: V had told D she had never engaged in oral sex before (lie) CA said shouldn’t have been adduced under 41(5) bc P didn’t try advance case that V had no prev experience

• Perhaps might of been adducible had that been the case?

• Spencer has expressed surprise of cases like Hamadi 07 where C started discussion of sexual habits

• note s.43 states all applications for leave must be heard in private - in absence of C - if determined, must state in open court outcome & reasons - extent to which can give

• note F(05) suggests no discretion for judge (other than PACE presumably?) once s.41 satisfied

human Rights

• Compatibility of s.41 with Art 6 was considered in A(No.2) 02 by HL - said doesn’t adversely affect every case/make excessive inroad into guarantee of fair trial - no declaration of incompatibility

• Said had been interpreted consistently - s3 HRA

• here evidence of sexual r/s - allowed in evidence from previously - held was relevant - though were evidence so relevant that would put jury in dark, infringe Art 6

• seems give broad discretion!

• R (03) previous r/s evidence - excluded under s.41 - but said following A this had deprived of fair trial

• Hamadi 07 D wanted call witness to say C had been provocative with others - following A, not relevant because nothing to do with propensity for sex

• note Kelly, Temkin & Griffiths HO Report 06 said:

• rape conviction rates down since 99

• sexual history still employed regularly to undermine C’s credibility

• appears be admitted regularly by agreement of parties

• held success of reform has been undermined by A

• may be correlation between admission of sexual history & acquittal

• Spencer praises A(No.2) law prohibiting D producing cogent evidence of innocence is ‘monstrous’

• also says problem is that sex lives dissected publicly - should just be done privately

• also says wrong that D doesn’t have admit to previously forcing others into sex, if C must admit regularly consents!

• Birch also praises but says need rethink legislation - allow evidence of pro r/s or at least evidence of ‘substantial explanatory value’ - but could say emphasis should be on the event, not previously?

• Gov announced further review in wake of Che Evans case

• Women’s group concern that current interpretation may put others off pursuing complaint

• seems that perception is the problem

• reflects how law has strayed from strictures of s.41 when enacted (Ben)

• note Evans 16 about...