3. The relevance of sexual history and vulnerability in the prosecution of sexual offences

Abstract

The investigation and prosecution of sexual offences remains one of the most fraught and problematic aspects of criminal justice. Even with the introduction of various protective measures for vulnerable witnesses and complainers, deep and justifiable concerns persist about the level of reporting to the police, the extent of attrition, and the conviction rates.The treatment (actual and perceived) of complainers in the court room has a significant influence on these matters. Although ‘rape shield’ protections have been embedded within criminal justice systems for some time, it has been suggested by commentators in various jurisdictions that these legislative efforts remain susceptible to being sidestepped either through defence trial strategies or through “judicial override”, such that the law in action is less protective and useful than was hoped. Using Scotland as a case study, this paper examines the ways in which laws designed to protect sexual assault complainers in Scotland fail in practice. We use the lens of vulnerability to examine the problematic ways in which criminal evidence and procedure in Scotland fails to protect many of the most vulnerable victims of sexual assault, despite recent reforms. We will argue that focusing on the ‘rape shield’ provisions, as well as the measures designed to protect vulnerable witnesses, as ‘solutions’ to the problems faced by sexual assault complainers in an adversarial system, allows us to ignore more systemic questions about how the criminal justice system itself produces or perpetuates vulnerability, as well as how the criminal justice system understands and promotes a certain view of what it means to be vulnerable. We suggest that more research is urgently required to shed light on the extent of the ‘justice gap’, and that further and deeper reform is needed, at the substantive, procedural and cultural levels.