Sexual History Evidence and Issue of Non-consent in Sexual Offence Trials - Essay Example

The Extent to Which Sexual History Evidence is found to be Relevant to the Issue of Non-Consent in Sexual offence Trials Tutor: Date: The Extent to Which Sexual History Evidence is found to be Relevant to the Issue of Non-Consent in Sexual offence Trials Introduction In light of the increase in rape cases across the United Kingdom, there has recently been a concerted effort to try and effect much needed reforms in the management of rape cases across the UK, these efforts are seen to target rape cases form the initial complain to trying to effect changes in the Kingdom’s statutory laws. Although there still remains an urgent need for prosecutors across the country to acknowledge the seriousness of accusations surrounding rape by applying a series of extremely rigorous legal principles, it should however be observed attempts to secure successful prosecutions in cases involving rape generally experience a rather high rate of attrition1. In most of the cases involving non-consensual rape in the United Kingdom, the courts are usually of the opinion that in the event that an individual consents to engaging in sexual intercourse, this consensual mindset is assumed to remain unchanged in all future encounters involving the two parties. The reason as to why most courts often tend to ask for the victim’s sexual history in cases involving non-consensual sexual incidences is that the approach adopted by the legal system in the United Kingdom is largely similar to that which is practiced in contract law in regard to the use of the concept of consent. In line with this approach, it is generally assumed that once an individual happens to consent to the various clauses that are stipulated in a given contract, this consent is seen to continue holding steady until such a time as when the contract is brought to an end. In a similar manner to this, when courts in the United Kingdom move to ask for the sexual history evidence of a given individual in the respect to a case involving an accusation of non-consensual sexual contact, the courts generally tend to assume that from the time that an individual first gives consent to another individual for there to be a sexual relationship between the two, it follows that the two parties supposedly have or are allowed to have the uninhibited prerogative of accessing each other’s body without any restrictions. A key element of cases involving non-consensual sexual offences, rape and other sexual offense that all force individuals to engage in sexual activity is that the complainants did not give any consent to the offenders to engage in sexual activity. The inherent difficulty that is normally experienced when attempting to determine if the complainant gave consent to the contact or not as well as the urgent need to ensure that the law surround the issue of consent is adequately clarified in the UK is seen to have been highlighted by one of the papers that was issued by the UK’s home office2. In the paper, the home office was keen to point out that the issue of determining whether the complainant actually gave consent or not for the action is found to be quite central to the establishment of whether a sex offence was actually committed. In this regard, the paper stressed that it vital that the law targeting this issue to designed to be as clear as possible as to what is the meaning of the term consent as this will help to prevent incidences of the guilty being set free or innocent parties being convicted as a result of a miscarriage of justice3. The paper also highlighted the fact that while it often proves to be a rather difficult role to play, it was necessary for juries to ensure that they always make decisions whereby they are sure beyond any measure of reasonable doubt that a given complainant was clearly consenting or not4. Over the years, the human society has been able to device a set of complex messages that its members can be able to use so as to indicate consent or lack of it. While agreement or the lack of it thereof might not necessarily be verbal it is critically important that both the two parties involved in the communication of the message understand it and respect the individual rights of the parties to deny consent and mean it. Of particular concerns in respect to the question of consent is that the concept is found to be rather weakly elaborated in legal theory despite the fact that the concept is found to be of critical importance in respect to not only aiding in the examination of the contractual sphere within which heterosexual couples are found to be allowed to engage in a sexual relationship, but also in the regulation of cases involving rape. The Need for a Statutory Definition of Consent As a result of the controversy that is seen to be surrounding sexual history and the concept of consent in sexual offenses trials, questions have been raised as to whether the provision of a statutory definition of consent would have the effect of providing greater clarity in the law. One of the advantages that will be gained by the provision of a statutory definition to the term consent is that there will essentially be a greater degree of clarity and certainty. This would in turn make it easier for judges to be able to give the jury proper direction in non-consent cases in addition to also making it significantly easier for the jury to grasp the meaning as to what is inferred to by the term consent5. In addition to this, undertaking a process aimed at developing a statutory definition of consent would have the benefit of enabling the legislature to consider and make recommendation as to what should be considered as helping to form the acceptable behavioral standards in the modern day British society. Why Sexual History is used in Sexual Offences Cases involving Non-Consent Sexual history was in the past mostly used to help in demonstrating consent for the particular occasion that was the subject of an accusation as is demonstrated in the 1887 case of R v Riley6. During this period of history, marriage was widely considered as serving to give a degree of immunity to the husband and in effect served to give him permanent consent while that the same time requiring that the wife should always be sexually available in the event that the husband might require her to be7. This situation is seen to have prevailed for a long period and it was only not until 1991 that the R v R rape case was able to successfully remove the privilege that had been given to husbands as a result of marriage8. Courts in the United Kingdom can be able to use Section 41 of The Youth Justice and Criminal Evidence Act of 1999 to allow for them to ask question and hear evidence pertaining to the sexual history of an individual for a period spanning up to one week prior to the occurrence of the alleged rape incident. It is as a result of this that it can be perceived that the law in the UK deems it possible that if a complainant is found to have previously consented to engaging in a sexual relations, she is highly likely to give a similar consent in the future9. It can be argued that previous consent to sexual activity between an accused and the complainant should not be considered as being legally relevant in the demonstration of consent because consent should be granted anew each time two individuals choose to engage in sexual activity10. As such, it can be argued that the concept of consent as applied to the country’s legal process should of necessity be refined to take this factor into consideration. The UK’s Crimes Ordinance (Cap.200) is noted to currently provide no proper definition of the term consent and actually offers very little guidance on the subject. Section 118(4) of the Crimes Ordinance is also noted to fail in this respect and serves to merely provide that when attempting to try and determine if the accused individual actually happened to believe that the complainant was consenting to having intercourse, the absence or presence of clear and justifiable reasonable grounds for the development of such a belief is a matter that the jury should put into consideration together with any other matters that might be deemed to be relevant to the case11. The effect of section 118(4) on the legislation surrounding non-consensual intercourse is that in the event that the accused is perceived to genuinely believe that the complainant in question gave some form of consent despite the fact that the accused might happen to be mistaken in this belief, the jury is forced to acquit the accused individual. As such it can be noted that although section 118(4) is able to provide some basic guidelines on the handling of cases involving non-consensual intercourse, it however fails to provide what can be regarded as a statutory and clear definition of what exactly is meant by the term consent12. The common misconception that when a woman says no to sexual advances essentially means something different is seen to be based on the fact that most Victorian women would usually say no to any sexual advances that were made to them despite the fact that they at times often desired for the sexual contact to take place. However this is not the case today and it is important that these misconceptions be properly addressed. Another prejudicial assumption that is seen to be responsible for resulting in cases of non-consensual sexual intercourse is that which purports that all women secretly wish to be ravished in a rather violent manner and any cries for help on their part during the occurrence is essentially an indicator of their giving a subconscious consent. This misconception is seen to have found its way into the legal system as is demonstrated in the case of Director of Public Prosecutions v Morgan [1976] whereby three men are en to have been charged with the rape of another individual’s wife, the complaint’s husband in this case was also prosecuted on charges of having encouraged the rape of his wife. In this case, the woman was dragged out of her bedroom and was then raped by the three men in turn despite having repeatedly asked them to stop13. The defending counsel representing the accused individuals appealed against the conviction that had been brought forth against the men and maintained that the accused men had been of the belief that the complainant had actually given them consent to engage in the sexual activities. In deciding the case, the House of Lords found for the accused on the argument that if an accused individual was of the reasonable belief that the woman in question consented to the sexual activities, then the accused is automatically not guilty of rape. In citing the concept of reasonable belief, the House of Lords pointed out that there were numerous cases whereby although women fail to give their clear consent, the men have a reasonable belief that women actually expressed consent by their actions14. Sexual History Cases and Rape Despite there having been considerable reforms on legislation surrounding misunderstandings, sexual assault, there are still a number of stereotypical assumptions that are being held pertaining to sexual violence in intimate relationships. A number of judges in the UK are noted to routinely read rape cases in the context of past relationships and this is seen to have the effect of generating the assumption of continuous consent. It can be argued that just because there happens to have been a past intimate relationship between two individuals, this should not be presumed to create a continuous consent to sexual engagement15. The consent given by a given party for sexual activity to occur is a dynamic process that also affect long-term relationships and often requires consent renegotiation between the partners. As such, consent cannot be assumed on the basis of past relationship although this mistake is found to be quite common among most judges. In the UK’s legal system, there is often the assumption that the presence of an ongoing confidential relationship and past sexual history have the effect of creating what is perceived to be a presumption of consent involving sexual engagement that often requires that the complainants have to ensure that they make rather intense resistance so as to be able to successfully counteract it. In a 2006 report that was published by the Home Office that sought to evaluate the new legislation that was seemingly limiting the role and importance of Sexual History Evidence in Rape Trials, it was revealed that there is currently a general failure of the legislation to help in the previous sexual experience of a rape complainant from being used as evidence in cases involving rape. This is despite the fact that a number of change were made to the UK’s laws to help in restricting access to this information. In addition to this the report also noted that there were a relatively high number of applications (25% of the cases) that were made to introduce sexual history into cases. Of these applications, about two thirds were successful. It was also noted that sexual history was introduced into trials without there being any applications as is required by law. Most of these applications were found to have been made before the trial and in writing16. It can be argued that the overall admissibility of evidence pertaining to sexual history is for the most part found to be highly dependent on factors such as relevance and the general satisfaction of extrinsic polices and auxiliary test that include ensuring that there is compatibility with convection rights that are seen to be provided under section 3 of the 1998 Human Rights Act. As such, it is possible to argue that the prohibition of cross-examination in respect to sections 35 and 34 of the YJCEA 1999 in essence works to violate Article 6(3)(d) of the convention rights due to the fact that the only pivot upon which a defendant can be able to base his defense has been removed. Common Law and the Issue of Consent in Non-Consent Sexual Cases Sexual history evidence was in the past primarily employed in the examination of the complainant’s moral behavior in case of rape. This is despite the fact that the history does not contribute in any manner to the verification of the victim’s credibility. At the moment, the 2003 Sexual Offences is noted to have provided a shield in rape cases that actually prevents the use of sexual history evidence. This shield is also note to be entrenched in the various international rights that the UK is seen to have borrowed from other legislations. The use of the rights that are found to be entrenched in these legislations is found to be quite supportive in causing the country’s legal system to now perceive incidences of rape as violence in the case where the national law had previously been blind. Although the adoption and subsequent use of the entrenched laws has been quite beneficial, of note is that this has nevertheless had the effect of excluding common law from triggering any democratic reforms in the UK17. This exclusion is noted to be present even in cases where judges are noted to for the most part be confining their attention mainly to the various procedural matters such as those that are seen to be related to the admissibility of evidence18. It should however be noted that the continued use of the various entrenched rights is primarily based on the acceptable argument that due to their having been defined by common law, these rights have some degree of compatibility with most of the fundamental principles that are seen to be inherent in common law. The issues surrounding the use of sexual history evidence in Wales and England has for long been the subject of widespread criticism. This is despite the fact that the position that was assumed by the traditional common law is that sexual history is essentially irrelevant in the establishment of consent. It is due to this factor that there have been numerous requests that seek to cause the complainants to demonstrate that they are neither individuals with immoral character traits nor are they prostitutes and as such, their sexual history evidence was for the most part found to be highly relevant to the issue surrounding consent in non-consent sexual cases. Of note is that with the enrichment of Common law UK legislation with the European legislation, women have largely been left in a position whereby they are quite vulnerable due to the recent trend whereby the making of the more difficult decision is routinely left to the presiding judges19. The reformations that are being implemented in British law as a result of the recent move to try and incorporate human rights to laws could potentially have the effect of drastically reducing the situations in which the complainant’s sexual history can be introduced to a rape case as evidence. This aspect is seen to be further reaffirmed by Clare McGlynn who points out that in the event that there happens to be cases whereby it is determined that sections 41-43 of the YJCEA 1999 are actually having the effect of blatantly contravening a defendant’s right to obtain a fair trial, the courts can attempt to try and consider the compatibility of the evidence introduced in the trial with both sections 3 and 4 of the HRA 199820. In this instance, it would be found to be of vital necessity for the court to ensure that it considers the balance of interest among the parties involved in the case as well as the actual justification for the restrictions. It is imperative that the investigations that are conducted in the determination of rape cases should of necessity be found to be attempting to try and establish some form of equilibrium between the defense of the victim’s rights and the provision of what will be perceived as an impartial trial for the defendant. View on Consent While there are a number of approaches that can be used in the examination of issue of consent in respect to the application of this issue to sexual cases involving non-consent, it is of critical importance to first ensure that individuals understand that from a primarily linguistic perspective, it is completely nonsensical to consider the consent that had previously been expressed in the past as being of nay potential relevance in the present. Of particular concern however is that as the legal situation in the UK currently stands, it is common in everyday legal practice including cases that have to utilize sexual history evidence, to support the assumption that once a party has given consent, this consent once given continues to be sustained by the other party. As such, it can be argued that from a purely conceptual perspective, there is really no logical reasoning that can be applied in good conscious to explain the manner in which rigid and generalized principles are now being applied to aid in the regulation of legislation governing the use of sexual history evidence. The deductions based on the hypothesis of repetition that are seen to support general inferences from past sexual behavior to present sexual behavior can be argued to have very little relevance to any real cases that have been brought to trial. An analysis of most of this cases can be able to show that there are a large number of reasons to think that sexual history evidence is not relevant in most cases and in the event that it happens to be relevant, this is only applicable in only a small number of cases21. It is based on this argument that any assumption made to the effect that sexual history actually happens to have any probative value for the provision of consent is found to be highly prejudicial. Tackling the issue from a philosophical and legal perspective, it is found to be highly nonsensical to try and apply a general assumption of inference so as to justify the investigation of a complainant’s sexual history evidence. As such, it can be determined that the use of these assumptions has the effect of providing what is highly unfair treatment to women in trials. In the event that the long established contractual approach to the concept of consent remains unmodified, it can be expected that cases of violence against women will for a long time continue to be supported by the application of what are improper applications of some of the conventional contractual theories in which the consent that had previously been expressed in the past will be argued to still remain valid in the present. The concept surrounding consent is found to be one of the concepts that is commonly used in most of the contemporary social contract theories. When applied to the field of bioethics, the concept of consent has the effect of helping to turn what would otherwise be an unjustified attack on a given individual, in politics, the concept is used to aid in the legitimization of the wanton exercising of power. When it is applied to criminal law, the concept of consent can have the effect cases where an accused has committed homicide to one whereby they have simply aided in voluntary euthanasia, it can turn a theft case into being an issue whereby a gift has been given, battery into sport and rape into sexual intercourse. The issue of consent as presented in this paper is seen to be related to the issue of rape cases in long-term relationships or marriage. The consent that is granted by an individual in this case is found to be the main factor that serves to make a difference between causing an incident to be regarded as rape or a case of acceptable sexual intercourse. Although the issue surrounding consent can at first seem to be relatively simple at first glance, when an individual ventures to try and explore it from both a practical and theoretical perspective, it is soon realized that it has the effect of raising a large number of philosophical questions. The tendency to describe the state’s domestic character as being rather analogous to the patriarchal family whereby both the government and the state are representative of the metaphorical patriarch is note to have the effect of reinforcing the conception that all private and public spheres are essentially coherent embodied spaces. The concept of due diligence by which the state is found to be legally obligated to protect its citizens should not overlook ensuring that women should be protected from any violence that happens to be perpetrated against them. A number of international organizations have continually been tirelessly working to ensure that the current patriarchal gender biases that are seen to be present in contract laws are removed so as to successfully mitigate the risk that women are continually subjected to discrimination during trials as a result of their past sexual choices22. Conclusion In order to successfully improve the current situation in the country in respect to the use of sexual history evidence, it is important to implement a wide range of radical changes. These changes should focus on supporting a total prohibition on the use of sexual history in criminal cases as well as tackle the issue of prejudicial attitudes of society towards the use of sexual history evidence and especially so during trials. In light of the fact that the implementation of a rape shield law that serves to promote that there be judicial discretion in rape cases can at times fail to attain its objective, it automatically follows that the development and implementation of an absolute and radical rape shield law by the legislature targeting the use of sexual history evidence will not necessarily bring a definitive solution to the problem. Such laws will instead be seen to provide the initial steps that need to be legally promoted so as to encourage respect for rape victims as well as ensure that their fundamental rights remain protected. Bibliography Della Giustina, Jo-Ann. Why women are beaten and killed: Sociological predictors of femicide. Edwin Mellen Press, 2010. Hunter R, McGlynn C and Rackle E (eds), Feminist Judgments From Theory to Practice (Hart Publishing 2010) Edwards, Susan SM. Female sexuality and the law: A study of constructs of female sexuality as they inform statute and legal procedure. M. Robertson, 1981. Walby, Sylvia, and Andrew Myhill. "New survey methodologies in researching violence against women." British Journal of Criminology 41, no. 3 (2001): 502-522. Alexander, Dolly F. "Twenty Years of Morgan: A Criticism of the Subjectivist View of Mens Rea and Rape in Great Britain." Pace Intl L. Rev. 7 (1995): 207. Heise, Lori L. 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