These are the structured notes I made to help me answer problem questions on Sexual History Evidence. They contain all the latest legal rules along with discussion of various issues. I used these notes to revise for my Criminal Evidence exam, in which I got a mark of 75.
Sexual History Evidence
CHARACTER ATTACKS ON NON-DEFENDANT WITNESSES
- S.34-36 YJCE restricts right of defendant to self-representation in sex offence cases,
on back of cases such as R v Edwards 1996 where C undergone lengthy and intrusive
invasion of private life while under cross-examination.
o Safeguards for defendant, eg warning jury (s.39).
- Even if represented, can be highly distressing for C. Common law allows judge to take
over cross-examination in some cases.
o R v Cameron 2001: 14 year old rape complainant broke down after 15 mins and
refused to answer questions. Judge too over questioning. CA said judge not
wrong in principle, but may not apply to many adult witnesses who refuse to
answer questions.
Previous Sexual History Evidence
- History consistently underlined most difficult aspect of cross-examination of sex case
complainants was elicitation of previous sexual history.
- COMMON LAW: Might be assumed should be subject to finality rule since collateral
facts.
o But NOT in cases of previous sex with D. Considered to be relevant to issue and
hence can be subject to further cross-examination and rebuttal of denials (R v
Riley)
o But in cases of sex with other men, collateral and hence subject to finality rule.
Dis not stop counsel asking further questions however designed to doubt C’s
moral character and credibility by suggesting she was a ‘loose’ woman.
- Yet in early 1970s, was questionable whether fact woman was promiscuous had any
relevance about whether she consented on the particular occasion.
o Helbron Commission Report 1975 concerned that her history became main
subject of trial rather than D’s actions.
o S.2 Sexual Offences (Amendment) Act 1976 place restrictions based on
whether ‘unfair to D to refuse to allow evidence’.
Problems. No mention of fairness to C. Also only referred to previous
encounters with people other than D.
So made hardly any difference in most cases.
REFORM: YJCEA 1999
- S.41 blanket rule prohibiting the admissibility of any evidence concerning previous
‘SEXUAL BEHAVIOUR’ of C in any trials involving a sexual offence. HOWEVER subject to
four narrow exceptions in subsections (3) and (5).
SEXUAL BEHAVIOUR:
o R v T, 2002: T charged with rape of niece in 1999 Judge didn’t allow cross-
examination directed by defence which related to C’s alleged past fabrication of
such an assault concerning two other people. CA held not sexual behaviour as
questions relating to veracity of her allegations in the past.
Court adopted purposive approach and noted that s.41 aimed at stopping
evidence of sexual behaviour aimed at showing a colourful sexual history.
Here, the allegations weren’t about ‘sexual behaviour’ but were about
‘statements about sexual behaviour’.
o Hence if defence use evidence merely to show that a statement is likely to be
false, will usually be allowed.
o R v M 2009: Even though not found allegations to be false because she withdrew
them out of ‘fear of reprisals’ CA still help admissible since questioned her
‘veracity’.
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