Sexual past of victims to be banned as evidence in rape trials
New law lets judges block questioning that ‘undermines an accuser’s dignity’
RAPE victims’ sexual history will be barred from being used as evidence in court trials under plans by the Law Commission to protect complainants from juries’ prejudices.
Judges will be empowered by new laws to block evidence about rape victims’ previous sexual behaviour if it risks “perpetuating myths and misconceptions” or undermining their “dignity”.
The rules will be modelled on Canada’s criminal code, where a victim’s past sexual history cannot be used by defence lawyers as evidence to suggest they are “not believable” or more likely to have consented to sex with the alleged attacker.
The move is one of a set of proposals drawn up by the Law Commission after it was asked by the Government to find better ways of using evidence in sexual offence prosecutions as part of a drive to tackle low conviction rates and high numbers of women dropping out of cases.
Intrusive questioning of women’s sexual behaviour by police and prosecutors has been blamed by female campaign groups for leading to the 60 per cent dropout rate by victims.
As a result, the proportion of offences resulting in a charge has fallen to as low as 1.3 per cent.
The commission said: “It has long been acknowledged that introducing evidence of the complainant’s sexual behaviour at trial risks both subjecting the complainant to unnecessarily intrusive and humiliating questioning and reliance on myths and misconceptions about their
‘Evidence about sexual behaviour... risks humiliating questioning’
credibility, consent and moral worthiness.”
It said the current regime was too complex, broad and restrictive. A study of independent sexual violence advisers found 75 per cent of them had witnessed rape victims being interrogated about their sexual histories.
Under its proposals, a victim’s past sexual behaviour could only be used as evidence in a court case if it reaches a certain threshold.
The Canadian system requires defence lawyers to make a written submission to the court in order to be able to use anything about a victim’s sexual history.
“In Canada, these factors include the interests of justice, the defendant’s right to a fair trial, the complainant’s dignity, and the risk of perpetuating myths and misconceptions,” said the commission. Its criminal code states: “A defendant in a sexual assault case cannot introduce evidence of the complainant’s sexual activity in order to imply that the complainant’s past sexual history suggests the complainant is not believable or is more likely to have consented to sexual activity with the defendant.”
Judges would also be required to provide written reasons if they decided to allow a victim’s previous sexual behaviour to be used as evidence in a court case.
Other proposals include giving victims automatic rights to measures to help them give evidence and ease the trauma of a public trial, such as live links to a courtroom or to do it in private, though there would be an exemption allowing the press access.