Previous sexual history evidence

Abstract

This article challenges the currently accepted wisdom that ‘previous sexual history evidence is never relevant’. It sketches and defends a conception of ‘relevance’, and uses that conception to analyse the plurality of issues to which previous sexual history evidence may theoretically be relevant. It highlights that evidence of the complainant’s prior sexual relationship with the accused (‘relationship evidence’) does not necessarily rely on legally forbidden propensity reasoning to support relevance. The article then examines the current legal framework in England and Wales and argues that the ‘ECHR gloss’, applied in R v A(2), should never have been required, and has been used in situations, such as R v Evans, where it was likely never intended to. In the current drive to reform s. 41, it is submitted that any such reforms must acknowledge the differences between relationship evidence and other sexual history evidence.