Restrictions on the cross-examination of sexual complainants on their previous sexual histories

Fairness and relevance of cross-examining sexual offence victims about sexual history came to be doubted over time.

• Youth Justice and Criminal Evidence Act 1999, s.41 – toughened up on cross-examination rules.

  • Some say the pendulum has swung against defence now.

Seaboyer case = 2 myths (1) past sexual conduct more likely to be presently consenting + (2) promiscuity = incredibility.

s.41(4) outlines when leave of the court should not be given: “If it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness”

C and B:

• Accused were charged with sexual offences against their 7 year old twins. Wanted to bring in evidence of them making complaints against other two parties as well as the parents.

• Mance J – this fell into s.41 and leave was needed before it could be introduced. It related to the sexual experiences and history of the complainants.

“Sexual Behaviour”

Defined in s.42(1)(c): ‘any sexual behaviour or other sexual experience, whether or not involving any accused or other person’.

Wide prohibition:

• B: Defendant argued in response to homosexual rape charge that it was casual and consensual. Could not bring in evidence that the victim was a practicing homosexual who often took part in such intercourse.

  • Previous consent is not evidence of present consent.

• Ben-Rejab: BR convicted of rape and wanted to ask complainant about messages she had posted on a social networking site referring to her ‘sex style’ and how good she was in bed.

  • CA said this related to her ‘sexual behaviour’ as defined in s.42(1)(c).

  • Pitchford LJ – does not need to involve another person, it can embrace a wide range of things.

Matters unconnected with ‘sexual behaviour’

RT:

• Man charged with raping niece held to have been wrongly refused to ask why she had not mentioned the assault earlier, when other sexual allegations were being investigated.

• The court said the question wasn’t about sexual behaviour but why her accusation was made later.

MH:

• Emphasised distinction between things about sexual behaviour and questions related to past lies.

• If there is a danger of the complainant adverting to sexual behaviour in answers, leave must be sought. If allegations of lying are made, the defence must have a proper evidential basis for asserting the statements were made and that they were untrue.

In cases in which false complaints are invoked as evidence by the defence, Moore-Bick LJ in E (Stephen) said that there must be some material leading to the conclusion that the previous complaint was false in order to render that questioning legitimate.

Evidence of ‘sexual behaviour’ impugning the complainant’s credibility

s.41(4) outlatws evidence or questions concerning a complainant’s sexual behaviour if it seems as though it is being used to impugn the credibility of the complainant.

Situation in which it was allowed: Martin

• M denied having raped V on a Wednesday. At trial refused leave to ask whether she had pestered him for sex and performed a sex act upon him on the previous Monday. He said those advances were motive for false allegation about the Wednesday.

• Crane J held that the effect of the cross-exam would be to impugn the credibility of the victim, but that the questions should have been allowed because they lay the basis for M explaining the falsity of the allegation.

Conditions of Admissibility

s.43 – applications for leave heard in private

Two conditions for leave to be granted:

1. If the judge is ‘satisfied...that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or…the court on any relevant issue in the case’ (s.41(2)(b)),

   1. This must be satisfied in every case.

2. One of the four situations fulfilled.

Four situations:

1. Relevant issue in the case is ‘not one of consent’ (s.41(3)(a)).

• Issue of consent defined in s.42(1)(b) – cases in which the question is whether the complainant in fact consented.

• This means you can contest the AR or say you reasonably believed in consent in order to avoid the exclusion.

2. Relevant issue is ‘an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused’ (s.41(3)(b))

• For when the conduct at the time of events might be relevant – e.g. indulged in sexual activity with D earlier in the evening

• Must be directly relevant to the issue of consent – Stephenson: not under this when it was just evidence of her kissing other men – no bearing on whether she would with D.

• Y – doesn’t apply to things weeks/days/months before alleged rape.

3. Relevant issue is ‘of consent’ and the sexual behaviour to which the evidence relates is alleged to have been so similar:

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

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

And that the similarity cannot be reasonably explained as a coincidence. (s.41(3)(c))

S: W alleged H raped her after they agreed to separate. He wanted to introduce evidence that they had sex the day before the alleged rape under s.41(3)(c). This was refused by the trial judge and H appealed.

• Held, Appeal dismissed – in some circumstances s.41(3)(c) should be read down in accordance with s3 HRA where injustice will be done with strict reading. But here, mere fact of sexual intercourse was not admissible.

  • No logical connection between last act of sexual intercourse which was consensual and the event of the alleged rape which could assist the jury in deciding whether consent existed.

  • Here, the past sexual...

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