Sexual Evidence History - Report Example

Sexual Evidence History Sexual offences cover an enourmous range of conduct including rape,indecent assault, buggery, gross indecency between men, indecent exposure, unlawful intercourse with a “defective woman”, incest and prostitution related offences. The definition of rape was changed fundamentally by the Criminal Justice & Public Order Act (CJPOA) 1994, Sec 142 which substitution sec 1 Sexual Offences Act 1956 by stating that it is an offence for a man to rape a woman or another man. And that rape occurs if sexual intercourse either vaginal or anal is committed without the consent of the other party and he knows the other party does not consent or is recklessly as to whether that person consents. Although this new definition did improve the old version in that it included marital rape , male rape & anal intercourse previously classified as buggery, it still does not include forced oral sex and penetration by objects which may be no less traumatic than “connentional rape”. Furthermore, this defintion shows that a woman cannot be guilty of rape. The Scottish Executive (2000) explored this issue in its discussion of the law on sexual history evidence. The report’s authors noted the following commonplace beliefs that are often deployed in legal reasoning and indeed were evident in debates on section 41. (1) Someone who has had sex with persons A and B is more likely to have sex with person C. (2) Someone who is ‘sexually promiscuous’ has less right than someone who is not to choose who they have sex with. (3) Someone who is ‘sexually promiscuous’ is generally less trustworthy, and therefore less likely to be telling the truth. (4) Women had a tendency to ‘lead men on’ and are therefore to blame if men fail to resist their physical impulses. This is an adaptation of a table that appears in Kelly (2002). (5) When women say ‘no’ they do not always mean it. (6) False allegations of rape and sexual assault are more common than false allegations of other crimes. The Scottish Executive report concluded that all these statements not only have no foundation in fact, they are also “both illogical and at odds with any system of morality which places a value on the individual’s right to self-determination” (Scottish Executive, 2000, p.6). It considered that the frequency with which these ideas are “constantly reiterated” amounts to a form of prejudice that can result in the complainant being treated with a lack of respect and in the worst cases being publicly humiliated. Alongside, and reinforcing, myths and stereotypes about women’s unreliability as witnesses on sexual matters, are notions of women’s culpability when victims of sexual aggression. Depending on their actions at the time or their reputation they are located inside or outside the category of ‘victim’. Included here are implicit presumptions about how a reasonable woman should respond to sexual aggression persisting stereotypes of good or bad women the Madonna or the whore and traditional notions about sexual agency on the part of men which is a sign of health and virility, whereas female sexual agency is a marker of low morals and ‘promiscuity’ (Jordan, 2004). There is also a longstanding construction of heterosexuality that presumes that men will seek sexual activity, and that it is the responsibility of women not only to set, but also to enforce, limits (Lees, 1993). In depth interviews with 19 victims were carried out to explore the extent to which concerns and knowledge about sexual history evidence affected their decision-making and their experiences of trials. All interviewees were female and white. The majority had made an official report and half were involved in cases that went to trial. Two of the four women who chose not to report said that sexual history was a major factor in their decision. The same would have been true for a third woman, had the assault taken place in the UK (the assault occurred whilst on holiday in another country). It did because I had had one-night stands, if I was out and having a good time, I had done that occasionally, and I just thought that would’ve been used against me. I mean I don’t have to justify it, in those situations I was comfortable with it and I was consenting, but I thought it would have been manipulated to make it sound like I had consented to the drug rape. Five who did report said that they thought seriously about the potential of their sexual history and reputation being “up for grab’s”, but chose to report despite these concerns. Sexual history was, therefore, a factor for over a third of the sample when considering whether to make an official complaint, and half of the women volunteered comments that the issue of sexual history acted as a deterrent to reporting. Oh, I think a lot of victims wouldn’t go to the police in the first place. I was worried about that. (C13: ex-partner, conviction) For instance it may be inferred that having had a large number of sexual partners, I am in someway immoral and that this has a bearing on whether or not I was a victim of rap when I reported to the police I knew that I might be asked questions about my previous sexual history. I think I had probably picked this up from other cases that have been in the press. Although I went ahead it did make me think twice about it. My biggest fear was not being believed and being made to feel somehow dirty. (C14: acquaintance, did not proceed, reason not known) Whilst this issue troubled half of the women few had accurate or clear knowledge about the legal reform, and several noted that their perceptions were primarily drawn from what they had seen on television. Most shared the perceptions of the woman quoted above that having a number of sexual partners not only gave one a ‘reputation’ but also in some ill-defined way implied one was less worthy of belief. Only two described the police questioning as professional and relevant to the alleged rape. Three recalled detailed questioning about their sexual lives and two added that this was all ‘written down’. A further two reported detailed and in their eyes intrusive questioning about sexual behavior by forensic doctors. One was not impressed that the police had asked her friends about the state of her marriage and used their responses to justify dropping the case. Four encountered section 41 and sexual history issues during the trial process. Another interviewee was questioned by a prosecution barrister who, with the first question, compromised the intent of section 41 and the complainant herself, highlighting that the exclusion of the prosecution from the remit of the legislation needs to be revisited. It was awful, I had no idea what I was going to be asked, and I’d never been asked this, and his first question was: “What was your first sexual experience?” And, funnily enough, it wasn’t actually my boyfriend at the time. So the prosecuting barrister asked the question, and inevitably the answer came out, “Oh, it was a friend of mine”, which obviously starts off the wrong impression in the minds of the jury already, and it sort of went downhill from there. The defense used it as well; she was a woman, which actually I found quite disturbing! I’m not sure they were actually specific questions; it was more inferences that were made up something along the lines of “So you have slept with other people before?” “Yes.” “And you weren’t in a relationship with them?” “Yes.” And then the next line would follow “So you do have promiscuous relationships with blah-de-blah-de-blah.” And that would be sort of the way that it developed. Looking back now, he was obviously trying to paint a picture of somebody who had a sort of impeccable sexual history, had only ever slept with one person and was in a relationship. The look on the barrister’s face when I answered was absolute horror. (C11: acquaintance, acquittal) Another young woman was subjected to detailed questions during the trial about previous sexual abuse. Having been entirely unprepared for this, her view about the defense was that ‘In my opinion they’ve got no morals, no respect’. The experience of being questioned in open court about sexual history was, unsurprisingly, difficult. It makes it a lot harder. Harder to bear, when you’ve got family sitting watching, it’s not something that you want to broadcast all over. (C9: current partner, acquittal) The Youth Justice and Criminal Evidence Act (YJCEA) 1999 introduced a new regime for the conduct of sexual offence trials. Section 41 of the Act, which came into force on 4 December 2000, brought about dramatic changes to the rules on the admissibility of evidence of complainant’s sexual behavior, severely restricting the discretion of trial judges to introduce such evidence or to allow questioning concerning it. Responses to section 41 are divided given the extremely sensitive nature of this area of the law of evidence and the complex set of social and political issues that are at stake. Many have greeted it as a long overdue reform of a system premised upon outmoded and sexist beliefs concerning women’s sexual behavior that has routinely functioned to admit prejudicial and irrelevant evidence. Others, predominantly within the legal profession, have expressed serious concerns over whether the new law is workable and the extent to which, by potentially excluding critically relevant evidence, it may infringe upon a defendant’s right to a fair trial. In March 2001 the House of Lords heard an interlocutory appeal in the case of R v. A and were asked to decide if the new provisions, by excluding previous sexual history evidence between the complainant and the defendant, contravened Article 6 of the European Convention of Human Rights. The new Act, despite being well-intentioned, does not adopt a coherent or sustainable approach to the relevance of previous sexual history evidence and the restrictive nature of its provisions are such that genuinely relevant material will be rendered inadmissible. This creates the risk of disembodying the case before the jury and raises the significant possibility that miscarriages of justice will occur. Findings suggested that the criminal justice professionals who make screening decisions under section 41 are influenced by personal views about appropriate female sexual behavior. The main reasons that evidence related to the complainant’s previous sexual history was allowed under section 41 were to document the complainant’s previous false allegations of being sexually victimized, a motive to lie, and to show relationships with unrelated third parties. Section 41 has had no significant effect on the outcome of rape trials, as the conviction rate for rape has continued to decline since its implementation. Complainants regarded any use of sexual history evidence in trials as unjust and an invasion of their privacy. Rape law has long been criticized for its evidential requirements, one aspect of which has been the use by the defense of previous sexual history evidence to impugn the credibility of the complainant. Attempts to control its use have been made in many common law jurisdictions. Section 2 of the Sexual Offences Amendment Act 1976 was the first attempt to regulate sexual history evidence in England and Wales, but research revealed that the intention of the legislature rapidly undermined in legal practice. Few young people or adults in the twenty-first century have had only one sexual partner. The majority of the population, therefore, has a ‘sexual history’. Yet these sexual experiences can take on additional and negative meanings when introduced as ‘evidence’ in sexual offence trials. The new legal regime Sections 41-43 of the Youth Justice and Criminal Evidence Act 1999 are the most recent attempt to address the failures of section 2 of the Sexual Offences Amendment Act 1976. No sexual history evidence should now be admitted, or questions by the defense allowed, unless a judge has ruled that they lie within one or more of four exceptions. Crown Court Rules outline a new procedure, designed to make the process of applying to have such evidence admitted more transparent and to offer a form of certainty to complainants. Under the Rules, applications are to be made in writing pre-trial, specifying under which of the subsections covering the various exceptions the application is made and the questions the defense wishes to ask. The intention was to provide both judge and prosecution with the opportunity to assess, and where relevant challenge, the application. . Restriction on evidence or questions about complainant’s sexual history were applied if at a trial a person is charged with a sexual offence, then, except with the leave of the court no evidence may be adduced, no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behavior of the complainant. If the evidence or question relates to a relevant issue in the case and either that issue is not an issue of consent or it is an issue of consent and the sexual behavior 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 or it is an issue of consent and the sexual behavior of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar to any sexual behavior of the complainant which took place as part of the event which is the subject matter of the charge against the accused, or to any other sexual behavior of the complainant which took place at or about the same time as that event, that the similarity cannot reasonably be explained as a coincidence. In section 41 “relevant issue in the case” means any issue falling to be proved by the prosecution or defense in the trial of the accused. “Issue of consent” means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged. “Sexual behavior” means any sexual behavior or other sexual experience, whether or not involving any accused or other person. Anything alleged to have taken place as part of the event that is the subject matter of the charge against the accused. Subject to any order made under subsection 2, “sexual offence” shall be construed in accordance with section 62. For the critical analysis of recently reported cases, 13 post R v A Court of Appeal decisions were examined. The majority suggested that the Court of Appeal has understood the purpose of section 41 and is doing its best to interpret it as a rule of exclusion. Section 41 applications occurred in just under a third of jury trials in the case-tracking sample and in the sample of observed trials. In addition to specific references to section 41, references to sexual behavior or sexual history were found in over a third of CPS files and observed trials. Sexual history material was included in more than three-quarters of trials. The main contexts in which sexual history was introduced were previous allegations that were treated as being ‘false’ previous or existing relationship with the accused a claim that was often contested by the complainant, motive to lie and relationships with unrelated third parties. Sexual history was raised in two-thirds of the twenty-three trials observed, however specific questioning on it tended to be brief and to the point. Judges and barristers were mainly in favor of legislation to control sexual history evidence, but also thought that there were occasions where sexual history evidence was relevant. Some saw section 41 as an improvement on previous regimes, whilst others thought it too restrictive. There was considerable criticism by both judges and barristers of the belief in consent exception on the ground that it was too wide and ‘illogical’. Almost half of the judges interviewed were unaware of the Crown Court Rules. Some judges had only a vague knowledge of section 41 and few non-legal practitioners and no complainants understood the new law. The lack of definition of the terms ‘sexual behavior’ and ‘sexual experience’ caused uncertainty among practitioners as to the scope of section 41.The Crown Court Rules were frequently ignored or avoided, with the vast majority of applications being made at trial and presented verbally. This meant that some of the requirements of the law that the subsections under which the application is made are specified, that the questions to be asked are listed, and that reference is made to specific instances of sexual behavior could be more easily evaded. Verbal applications disadvantaged the prosecution, since counsel had minimal opportunity to consider the arguments in detail, nor to consult with either the CPS or the complainant about possible objections. Some defense counsel appeared to time their applications to come just before or during cross-examination to create the most pressure on the complainant. Where sexual history material was introduced without reference to the legislation at all, judges either failed to notice or failed to sanction the defense for the breach. Sexual history matters were often resolved by agreement between prosecution and defense. These agreements did not necessarily follow section 41. The evaluation of legislation intended to limit the admission of previous sexual history evidence in sexual offence cases in England and Wales. The use of such evidence has excited considerable controversy in the courts, in academia and in the political arena and has vexed legislators and the legal profession alike for three decades. Repeated attempts have been made abroad to limit its use in rape trials. Discretionary legislation introduced both in England and Wales section 2 of the Sexual Offences Amendment Act 1976 and elsewhere to control this practice has been widely viewed as a failure (Temkin, 1993 McColgan, 1996 Easteal, 2001). In the report, Speaking Up for Justice, two key areas of concern were noted that the admissibility of sexual history evidence deters many victims from reporting sexual offences may play a part in withdrawals and that its use is linked to persisting myths and stereotypes about rape and female sexuality and is not only an invasion of privacy but also prejudicial for the complainant. Responses to section 41 have been mixed. Many viewed it as a long overdue repeal of an outmoded and biased regime that permitted irrelevant evidence to be introduced. Others, primarily but not exclusively those with a legal background, have raised concerns that it might infringe a defendants right to a fair trial. In previous systematic study of the use of sexual history evidence Zusannah Adler (1987) observed almost all 85% rape trials at the Old Bailey in 1978-79 in order to monitor the impact of section 2 of the Sexual Offences (Amendment) Act 1976. Within her sample were 50cases involving 80 defendants who entered a ‘not guilty’ plea. Applications under section 2 were made on behalf of 32 (40%) of the defendants. Over 75 per cent were successful. Sue Lees’ (2002) analysis of 31trials in 1993 did confirm that sexual history questions continued to be asked, and in contexts that were frequently irrelevant. The most extensive UK research on this issue was undertaken in Scotland in a study that examined 305 High Court and 74 Sheriff Court trials. There were 98 High Court trials involving applications to lift the prohibition on sexual history evidence during the monitoring period of January 1987 to May 1990. Applications were made in a lower proportion of cases than the Adler study but more frequently allowed 85 per cent were successful. The prosecution opposed the application in only just over a third of cases (37%). The researchers noted that legal practitioners sought to stretch the intent of the law in every direction, undermining its exclusionary intent. Most recently, Neil Kibble interviewed judges in order to examine whether section 41 of the Youth Justice and Criminal Evidence Act 1999 is “fundamentally flawed” in the sense that it continues to allow judges to permit irrelevant questioning and evidence in relation to the complainant’s sexual behavior in rape trials. He concluded, inter alia, that it was indeed fundamentally flawed (Kibble 2005, p274) but that “although many judges approach the question of relevance and admissibility thoughtfully the judges don’t always get it right and there is room for improvement” (Kibble 2005, p204) Sexual history evidence also enters criminal trials through the route of third party disclosure applications, which in some jurisdictions are increasingly frequent (Busby, 1997 Feldthusen, 1996). Relevance, however, is in the mind of the beholder and, as LHeureux-Dubé, J. explained in the Supreme Court of Canada’s decision in Seaboyer, often in this area of law it has been swayed by stereotypical assumptions, myth and prejudice. Empirical studies into the operation of section 2 revealed that irrelevant questions about sexual history were continuing to be asked in cross-examination and that for barristers defending in rape cases, questioning about sexual history in order to discredit the complainant was frequently part of the repertoire (Adler, 1987 Temkin, 2003 Lees, 2002). In other jurisdictions legislation similar to section 2, in that it gives full scope to the judge to determine when sexual history evidence should be admitted, was also passed without much success (Woods, 1981; Attorney General’s Legislation and Policy Branch, 1996). Henning and Bronitt (1998) have pointed out that “the principal structural flaw of these legislative schemes is their failure to define the key concepts for determining admissibility” leaving the judges free rein to apply their “common sense assumptions” In contrast to the broadly negative findings reported, the research also documented support for the legislation, references to its positive impact on legal practice and the development of local approaches that have much to recommend them. A number of interviewees noted that following the Crown Court Rules, and especially the requirement for written applications, ‘focused the mind’. Trial observations confirmed it; verbal applications were often rambling and vague, seeking to find some point of sympathy with the judge, which could then be built on as the main argument. With written applications judges were in a much stronger position to assess the application and specify with some exactness what the limitations of any application that is granted are to be. Judgment, by the Court of Appeal has also often been in a positive direction, indicating an understanding of the intentions of Parliament with respect to the legislation. More specifically, the following promising practices were identified during the course of the research. Careful case preparation by the prosecution where following pre-trial hearings and rulings and agreements on evidence, transcripts and videos were edited to remove material that would introduce sexual history evidence. Reference: Adler, Z. (1987) Rape on Trial. London: Routledge and Kegan Paul. Birch, D. (2002) Rethinking sexual history evidence: proposals for fairer trials. Criminal LawReview, 531. Busby, K. (1997) Discriminatory use of personal records in sexual violence cases. Canadian Journal of Women and the Law, 9: 148-177. Easteal, P. (2001) Less than Equal: Women and the Australian Legal System. Australia: Butterworths. Feldthusen, B. (1996) Access to the private therapeutic records of sexual assault complainants. The Canadian Bar Review, 75:4, 538-563. Henning, T. and Bronitt, S. (1998) Rape victims on trial: regulating the use and abuse of sexual history evidence. Australian Culture. Sydney: The Federation Press. Jordan, J. (2004) The Word of a Woman: Police Rape and Belief. London: Palgrave Macmillan. Kelly, L. (2002) A Research Review on the Reporting, Investigation and Prosecution of Rape Cases. London, HMCPSI. Kibble, N. (2005) Judicial Perspectives on the Operation of Section 41and the relevance and Admissibility of Prior Sexual History Evidence: Four Scenarios. Criminal Law Review 190-205; 263-274. Lees, S. (2002) Carnal Knowledge: Rape on Trial. London: The Women’s Press. McColgan, A. (1996) Common law and the relevance of sexual history evidence. Oxford Journal of Legal Studies, 16: 275-30. Scottish Executive (2000) Redressing the Balance: Cross-examination in Rape and Sexual Offence Trials. Edinburgh: Scottish Executive. Temkin, J. (1993) Sexual history evidence-the ravishment of section 2. Criminal Law Review, 3-20. Temkin, J. (2003) Sexual history evidence – beware the backlash. Criminal Law Review, 217-243. Woods, G.D. (1981) Sexual Assault Law Reforms in New South Wales. Sydney: Department of the Attorney General and of Justice. Read More