Rape victims being questioned about sexual history in ‘significant number of cases’

The public gallery in the Supreme Court: Sketch by Isobel Williams (www.isobelwilliams.org.uk)

The sexual history of complainants was being admitted into evidence in ‘a significant number’ of trials involving sexual offences despite the legal presumption that the alleged victim should not be examined on their past, according to new research.

The survey by LimeCulture, a sexual violence training organisation, comprised responses from 36 independent sexual violence advisers (ISVAs) who had been present at over 550 trials over the past two years. ISVAs provide support to survivors of sexual violence and rape complainants. The group argues that the law which should protect victims against questioning of this type is ‘not being applied as it should’  and allows victims to be ‘ambushed’ during cross-examination.

Section 41 of the Youth Justice Crime and Evidence Act 1999 restricts the cross-examination of alleged victims in cases where the allegation is of a sexual nature. It seeks to protect women from unfair or irrelevant questions about their sexual behaviour. If defence counsel intends to question the victim about their sexual history, they must first obtain leave of the court and notify the victim in advance.

Earlier this year the former solicitor general Vera Baird published the results of a study drawing on the observations of 12 members of the public who sat in on 30 rape trials at Newcastle Crown Court over 18 months over 18 months ending June 2016 – as reported on the Justice Gap here. According to that research, the complainant’s previous sexual conduct was used in 11 of the 30 cases and in seven cases the correct process (i.e., applying for leave) was not followed.

Baird argued that the acquittal of Ched Evans had set the law back ‘probably about 30 years’ – see here for background on the Justice Gap. The Chesterfield striker was found not guilty of raping a 19-year-old woman in a hotel room in May 2011. Evans was originally found guilty of rape in 2012, his conviction quashed and he was found not guilty after a retrial at Cardiff Crown Court.

According to the Limeculture survey, more than one in 10 (11%) of the ISVAs claimed that more than half of the cases included questioning the complainant about previous sexual history. Only one in four ISVAs reported that none of the cases that they were present involved questioning about previous sexual history.

Legal commentator Matthew Scott, who writes the Barrister Blogger blog, took issue with the value of the research and its coverage in the Times (which incorrectly claimed that victims of alleged rape or sexual assault were ‘questioned about their sexual history at trial in nearly three out of four cases’). In fact, as Scott points out that table ‘comes closer to saying almost precisely the opposite’.

The barrister pointed to the limited sample of ‘self-selected’ ISVA’s included in the study, as well as the lack of detailed information about the records of the trials included. ‘If the survey suggests anything meaningful at all (which is very doubtful) it is that complainants are unlikely to be questioned about their sexual history,’ he concluded.

LimeCulture argued that in cases where section 41 was not being properly applied, it would be up to the judge or prosecution to intervene to ensure that the law was upheld. ‘It is clear that a failure to intervene could lead to unfair questioning of the complainant about their previous sexual history and therefore undermine the legislation and indeed the presumption that it includes in order to protect the complainant,’ they stated.

Writing for the Mail on Sunday, the feminist campaigner Julie Bindel argued that the Ched Evans acquittal, and the way his defence was run, has led to ‘a rapists’ charter’. Many defence lawyers felt that critics were overstating concerns. For example, Francis FitzGibbon QC, chair of the Criminal Bar Association, reckoned that there had been ‘a huge over-reaction’ as to what the case might mean for future cases. ‘The answer is not very much,’ he said. ‘The thing that troubles me is people saying it sets the law back 30 years and it’s a rapists’ charter. That is what is going to make people think they daren’t report what’s happened to them. Those cries of anguish are a self-fulfilling prophesy.’

 

 

 

 

 

 

 

 

Profile photo of Hannah Wilson About Hannah Wilson
Hannah is a paralegal at BSB Solictors and is currently completing the BPTC at University of Law in London. She is commissioning editor for the Justice Gap and tweets at @hnnhw3

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