Sexual History Evidence in the UK

Sexual History Evidence in the UK

Cases concerning sexual assault are complex; they ask strenuous questions of judicial procedure and legislation, and often prove challenging and traumatising for the victims. Renowned as one of the more controversial and contentious elements of such trials, is the admission of evidence related to the complainant’s sexual history. Although the relevant legislation across the UK stipulates that sexual history evidence may only be admitted in the most exceptional of circumstances, a number of legal critics take issue with the courts’ allowance of such evidence to be introduced at all.

Sexual history evidence refers to any evidence submitted to trial that refers to the complainant’s previous sexual history or conduct. Within the legislation, this encompasses previous sexual relationships and sexual encounters, but case law has gone further in defining the scope of what ‘sexual history evidence’ can include; previous cases have seen sexual history evidence to have encompassed the completion of online quizzes that are sexual in nature,1 engaging in communications of a sexual essence on social media platforms such as Facebook and Instagram, 2 the viewing of pornographic material,3 engaging in text messages that are sexual in nature,4 and secondary evidence that demonstrates previous sexual behaviour.5

The relevant legal framework for governing this type of legislation in Northern Ireland and England and Wales is set out in Section 28 of the Criminal Evidence (Northern Ireland) Order 1999, Section 41 of the Youth Justice and Criminal Evidence Act 1999 respectively.

The legislation in Northern Ireland, England and Wales sets out the same legal framework – that there is a general prohibition to the admission of previous sexual history evidence of the complainant, unless the Court gives express leave that allows otherwise. Moreover, the Court may only grant leave to an accused’s application to adduce such evidence at trial if the Court is satisfied that one of the ‘four gateways’ applies. The first of these gateways is satisfied if the evidence relates to an issue which is not one of consent. Lord Hope has previously given four examples of such issues; the evidence shows a defence of reasonable belief in consent; the evidence shows that the complainant had motive to fabricate evidence or had bias against the accused; the evidence provides an alternative explanation for a physical condition of the complainant which the Court relies on to establish that the sexual activity in question took place; or the evidence is required to provide explanation for the complainant’s account of the sexual activity.6

The second gateway is where the evidence is associated with consent, and it is alleged to have occurred at a similar time to the sexual activity in question. It is worthy of note that there are no specific limits as to what is considered to be ‘the same time’, though Lord Slynn and others have favoured restrictive approaches to this.2

The third gateway is where the evidence is associated with consent, and it rebuts evidence presented by the prosecution related to the complainant’s sexual behaviour; the similarity here must be so similar that it cannot be reasonably explained to be mere coincidence.

And the fourth and final gateway is if the evidence relates to any evidence already adduced by the prosecution and the Court is of the opinion that it would go no further than what is necessary to rebut or explain that evidence of the prosecution.

If the evidence in question is considered to fall into any of these categories, then it can be legally admitted as evidence at trial. Moreover, there are two additional restrictions that apply, regardless of whether or not the evidence in consideration fits within one of the aforementioned gateways; no evidence shall be allowed if the sole purpose is to call into question the complainant’s general reputation, but evidence must be allowed if the refusal to allow it might render an unsafe conclusion from the court or the jury on a relevant issue.

There are worries surrounding the admission of sexual history evidence, in that cross-examination in sexual offence trials where sexual history evidence has been introduced risk becoming interrogations into the victim’s sex life and their previous sexual encounters; this is where the idea of ‘twin myths’ come into play, where the stereotypical idea is enforced into the mind of the jury that if the victim has taken part in sexual activities previously, whether this be with the accused or any other third-party, it is more plausible that they consented to the sexual situation in question at trial. However, this legislation is intended to execute a balance between the right to a fair trial on behalf of the defendant, and the protection of the complainant. ■

By Aoife McColgan

Aoifé is a Trainee Solicitor at Caldwell & Robinson, currently working in their litigation department. She previously studied English Literature and Film Studies at Trinity College Dublin, before completing the MLaw at Queen’s University Belfast.

1 R v Ben-Rajeb and Baccar [2012] 1 Cr App R4.

2 R v D [2011] EWCA Crim 2305.

3 R v Ben-Rajab and Baccar [2012] 1 Cr App R4.

4 R v Ben-Rajeb and Baccar [2012] 1 Cr App R4.

5 R v P(R) [2013] EWCA Crim 2331.

6 R v A (no 2) [2002] 1 A.C. 45.

7 R v A (no.2) [2002] 1 A.C. 45.