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SEXUAL BEHAVIOUR 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
i) 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?
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