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Sexual Behaviour Evidence Notes

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This is an extract of our Sexual Behaviour Evidence document, which we sell as part of our Criminal Procedure and Evidence Notes collection written by the top tier of Oxford students.

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CPE

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

• Exceptions:
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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