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Rape: end courts using women’s sexual history

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Vera Baird QC, Harriet Harman QC MP, s41, complainant's sexual history, rape trials, report, campaign, Seeing is Believing'In one trial the defence barrister said that use of Section 41 was to show that “she is an adulteress”.

Pressure is mounting on the government over unfair questioning of rape complainants in court after a campaign was launched led by two former Solicitor Generals – eminent lawyer Dame Vera Baird QC, Northumbria Police and Crime Commissioner, and Harriet Harman QC MP –  to tackle the issue of rape complainants being questioned in court about their previous sexual history.

They say the law to stop this problem, Section 41 of the Youth Justice and Criminal Evidence Act 1999, is not working properly in courts up and down the country.

The wide-ranging campaign coalition – made up of sexual violence support services, cross-party MPs, Peers and charities – had its first meeting in Parliament on 29 January 2018 and is calling on the government to change the law to tackle the problem; there is overwhelming evidence, that in a significant minority of rape trials the complainants’ previous sexual history is being used in evidence – often without the defence even making an application to the judge for permission.

Research by Dame Vera Baird QC, ‘Seeing is Believing’, based on court observers watching 30 rape trials over 18 months in Newcastle Crown Court, found that rape complainants’ previous sexual history was used as evidence in 11 out of the 30 trials – 37 per cent.

In the majority of these cases it related to sexual activity with men other than the defendant.

In almost two thirds (7 of the 11, 63 per cent) of the cases where previous sexual history was used in evidence, the proper procedure – to apply for the judge’s consent ahead of trial with notice to the prosecution – was not followed.

There was either no application or it was made at trial without notice.

In one trial the defence barrister said that it was to show that “she is an adulteress”.

A national survey of Independent Sexual Violence Advisers by Limeculture in 2017 into the application of Section 41 of the Youth Justice and Criminal Evidence Act 1999 found that in 28 per cent of cases where previous sexual history was used as evidence there was no application.

The Limeculture survey was based on answers from 36 Independent Sexual Violence Advisers (ISVAS) about 550 trials they attended between April 2015 and April 2017 and found that Section 41 of the Youth Justice Crime and Evidence Act 1999 is consistently being used, and used in breach of guidelines across the country.

The responses from the ISVAs who took part in the survey showed high levels of variation in when section 41 was applied and at what point, either before or during the trial, the complainant was informed that they would be questioned about their previous sexual history.

The Fawcett Society’s Sex Discrimination Law Review undertaken by a team of legal experts and chaired by Dame Laura Cox, DBE, a retired High Court Justice, and published on 23 January 2018 concluded that “evidence from a survey of ISVAs finds that this procedure (s41) is often ignored, resulting in victims having their sexual history used in court without prior notice.

“To combat this, victims should have a right to legal representation whenever an application to use section 41 is made; and the government must review the law – in particular, whether the use of sexual history evidence should be used at all for the purposes of establishing consent”.

The government’s review of s41 of the 1999 Youth Justice and Criminal Evidence Act claimed that in 92 per cent of cases there was no previous sexual history evidence questioning in trial so the law does not need amending.

Harriet Harman and Vera Baird wrote to the Attorney General and the Ministry of Justice (MOJ) on 8 January 2018 to argue that the work they commissioned is completely flawed because:

As the government admitted in written answer no. 117913 to Harriet Harman QC MP dated 13 December 2017 the Crown Prosecution Service does not require caseworkers or prosecutors to note if an application under s41 is made;

Any application made during the course of a trial is unlikely to be recorded, as in most trials there is not a Crown Prosecution Service caseworker present and there is no requirement on them or the barrister to report; and

Guilty pleas were included in the “research”.  If there’s a guilty plea there is no point in an s41 application by the defence since the only role for the defence would be in relation to sentencing.

And in the Attorney General’s written statement to Parliament of 14 December 2017 he stated that “the law makes clear that sexual history evidence cannot be used…to infer that a complainant’s sexual experience – with anyone – or sexual reputation made it more likely that they consented”, is simply wrong.

That is exactly the basis on which the judge in the Ched Evans case allowed the s41 application. The Court of Appeal ordered a retrial because sexual history evidence with men other than the accused ‘might support a defence of actual consent’.

Dame Vera Baird QC said: “In the 70s, 80s and 90s we fought to protect women from being unfairly judged on their sexual history, back then the argument would run, ‘she consented to me as well because she’ll have sex with anyone’.

“That’s why in government in 1999 Labour brought in Section 41 to try to curtail the use of complainants’ sexual conduct with other people as evidence of consent, but the research is clear that the law is not working as Parliament intended it to and we are now having to fight that fight again.

“We cannot allow rape trials to be inquisitions into the complainant’s sex life.

“The fear of a complainant being confronted with evidence relating to sex with other men is, and has always been, a huge deterrent to reporting rape.

“We know the government’s review does not reflect the situation in court rooms across the country and call on them to use the opportunity of the Domestic Violence and Abuse Bill to protect complainants and ensure they are treated fairly in the court room.”

Harriet Harman QC MP said: “This is not what women should have to put up with and it’s not what Parliament intended.

“And it’s not a fair trial if prejudicial, irrelevant evidence is allowed in.

“The government cannot go on ignoring the evidence of the scale and nature of the problem.

“We need a change in the law to ensure that trials are fair and that complainants do not face the ordeal of their sexual history being dragged through the courts.

“The forthcoming Domestic Violence and Abuse bill presents an opportunity for legal change and there is now a wide-ranging coalition to ensure that the process in court reflects what Parliament intended and what is fair to complainants”.

To read the full reort, click here.

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