Sexual History Evidence in Rape Trials

Abstract

Chapter 3 outlined the use of rape myths to undermine the survivor’s credibility. This chapter will unpack another common way in which evidence was challenged: sexual history. Sexual history evidence has been restricted since the Youth Justice and Criminal Evidence Act 1999, but the retrial of Ched Evans in October 2016 highlighted its ongoing use in court and significantly widened the type of evidence that could be adduced. Despite being initially convicted of rape in April 2013, Evans was acquitted at retrial following claims that the complainant had previously used similar sexual phrases and positions to those described by Evans. News coverage of the retrial criticised this, with Harriet Harman, MP, calling for an amendment to the Prisons and Courts Bill which would tighten restrictions on sexual history evidence. Both this, and a similar call to amend the Sexual Offences Bill, were put on hold after Theresa May called a general election in May 2017, but the proposed amendments are due to be discussed again under a new title of Courts Bill soon. It is unclear exactly when this will happen, but this chapter can inform such policy debates by showing that current restrictions are ineffective. There is no up-to-date academic evidence on the use of sexual history in English and Welsh trials, so this chapter provides essential data from which to have an empirical basis for discussion. Once again, I argue that the criminal justice system is deeply flawed in its ability to provide justice for survivors, this time because safeguards against sexual history evidence are easily undermined using legal discourses about fair trial and consent. While these observations relate to English and Welsh trials, such discourses are relevant to other countries which similarly seek to limit the use of sexual history in court.