The Laws Governing Admissibility of Sexual History Evidence in The UK
The admissibility of sexual history evidence in the UK is primarily governed by Section 41 of the Youth Justice and Criminal Evidence Act 1999 (the “YJCEA 1999”). This provision was introduced to replace Section 2 of the Sexual Offences (Amendment) Act 1976 and to restrict the use of sexual history evidence by removing judicial discretion and permitting such evidence only in very limited circumstances. However, to the extent the rape law reform aimed at convicting more men of rape, it has not been an unqualified success. Shortly after the implementation of Section 41 of the YJCEA 1999, the case of R v A (No. 2) came before the House of Lords and the decision in this case essentially gave significant judicial discretion to the judges in deciding whether to admit sexual history evidence.
The defendant in R v A (No. 2) was charged with rape. In his defence, he claimed that the complainant had consented to the sexual intercourse which formed the basis of the charge. The defence counsel had applied for leave of Court, at a preparatory hearing in the Crown Court, to cross-examine the victim about an alleged sexual relationship between her and the defendant. The application for leave was dismissed as the judge held that such cross-examination was excluded by Section 41 of the YJCEA 1999. The defence counsel appealed. The Court of Appeal held that such evidence was admissible in relation to the defendant’s belief in consent but not in relation to the issue of consent itself. The prosecution appealed to the House of Lords who deliberated over the interpretation of Section 41(3)(c) of the YJCEA 1999 and the effect of Section 3 of the Human Rights Act 1998 (the “HRA 1998”) and held that if the evidence relied on by a defendant was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial, it should be admitted. It was further held by their Lordships that any cross-examination based on that evidence should also be admitted.
The “fairness of the trial” gateway opened by the House of Lords threw the legal situation of sexual offences into chaos. There is no single definition of the phrase “fairness of the trial” nor is there any guidelines that should be followed in order to satisfy this ground. The problem with sexual offences, unlike other forms of offences, is that it raises more acute conflicts of credibility due to its nature and the circumstances in which it occurs – no independent evidences are readily available – causing the jury to judge the case at its face value by deliberating on the basis of competing and contradictory testimonials by the defendant and the complainant. In the process, the defendant often capitalises on the complainant’s moral character and sexual behaviour in his defence, which often prejudices the case and taints the mind of the jurors. Thus, Section 41 of YJCEA 199 was enacted to limit the circumstances in which a defendant may adduce evidence of a complainant’s sexual behavior. However, the case of R v A (No. 2) has significantly enfeebled the impact of this provision.
This paper will explore the current law on the admissibility of sexual history evidence in four parts. The first part discusses the interests of a complaint and a defendant in relation to admission of sexual history evidences. This is done in order to grasp the need for the stringent provision, Section 41 of YJCEA 1999. The next part makes a thorough assessment of each of the grounds for admitting sexual history evidences under Section 41 of YJCEA 1999. In the third part, the essay revisits the decision of R v A (No. 2) and discusses its impacts in light of academic opinions and subsequent case decisions. After a rigorous analysis of Section of YJCEA 1999 and R v A (No. 2), the essay concludes by providing a commentary on the current legal scenario of the admissibility of sexual history evidences.
BALANCING THE INTERESTS: COMPLAINANT VS. DEFENDANT
Cross-examination of a witness, at common law, may be relevant either solely with regards to credibility or to an issue in relation to the case or to both. In cases of sexual offences, a defendant’s primary strategy revolves around disparaging the complainant’s credibility as a witness. Through robust and vigorous cross examination techniques, the defendant attempts to portray the complainant as a promiscuous person, and if proven correct, to cause its probative value to substantially weaken the weight of her testimony.
On the flip side, it may be the case that a complainant is providing an entirely false story which is very easy to fabricate, but extremely difficult to refute. This should entitle the defendant to showcase any of complainant’s previous sexual history in order to challenge her credibility, especially in absence of independent evidence. A recent example of this was seen in R v L where the Court of Appeal held that it was necessary in the interest of justice to receive the fresh evidence of the examining doctors since the evidence had the ability of undermining the victim’s assertion that she was a virgin.
Thus, to strike a calculated balance between the complainant’s rights of privacy under Article 8 of the European Convention on Human Rights (the “ECHR”) and the defendant’s rights to a fair trial under Article 6 of the ECHR, Section 41 of the YJCEA 1999, the so-called ‘rape shield’, was brought into existence. The provision made sexual behavior of a complainant prima face inadmissible, or conversely conditionally admissible.
SECTION 41 OF YJCEA 1999
Under Section 41(1) of the YJCEA 1999, evidence cannot be adduced by the defence, nor any question asked in cross examination, about any sexual behavior of the complainant, without the leave of the court. Section 42(1)(c) of the YJCEA 1999 defines “sexual behavior” as “any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused”.
The broad construction of the expression – sexual behaviour – includes not only flirtatious conducts but also sexual orientation and taking part in explicit quizzes on the internet. The definition was widened further in R v Mukadi where the trial judge construed the complainant’s act of getting into an expensive looking car belonging to an older gentleman whom she apparently did not know as “sexual behaviour”.
By the virtue of Section 41(2) of YCJEA 1999, the Court may grant leave on an application made by an accused in relation to sexual behaviour evidences or any related question, and may not grant such leave unless it is satisfied that (a) subsection (2) or (5) applies, and (b) a refusal of leave might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case.
Section 41 of the YJCEA 1999 adopts a ‘pigeonholing’ approach to the admissibility of evidence and in doing so predetermines relevance through a closed list of categories or ‘gateways’ contained in Sections 41(3) or (5) of the YJCEA 1999. In addition to removing judicial discretion by enacting Section 41 of YJCEA 1999, Parliament evoked further controversy by extending the “rape shield” to include evidence of previous sexual behaviour between the complainant and the defendant.
A defendant can adduce evidence that does not relate to the issue of consent through Section 41(3)(a) of YJCEA 19991. Section 42(1)(b) of YJCEA 1999 explains the “issue of consent” as relating only to cases in which the question is whether the complainant in fact consented and expressly excludes, as affirmed in R v Barton, a mistaken belief in consent. The provision is largely uncontroversial.
As for Section 41(3)(b) of the YJCEA 1999, the relevant issue is “an issue of consent”. Furthermore, the sexual behavior of the complainant to which the evidence or question relates must have taken place at or about the same time as the event which is the subject matter of the charge against the accused. It was endorsed in R v A (No. 2), that the relevant act must be contemporaneous and relevant to the facts of the charge against the accused. Hence, the expression “at or about the same time” extends to, as Lord Williams highlighted during the debate on the Bill in the House of Lords, at best anything that happened 24 hours before or after the alleged offence and is thus incapable of including events occurring weeks or days before the alleged offence. Lord Hope and Steyn in R v A (No. 2) suggested that events taking a few hours beyond 24 hours would be inadmissible, to which Lord Clyde somewhat agreed. The test has been controversially applied in R v Mukadi.
The issues of consent are dealt by Section 43(1)(c) of JYCEA 1999. The provision is invoked when the sexual behaviour of the complainant to which the evidence or question relates to is alleged to have so similar to (i) any sexual behavior of complainant which took place as part of the event which is the subject matter of current charge, or (ii) any other sexual behaviour of complainant which took place at or about the same time as that event, that the similarity cannot reasonably be explained as coincidence.
Although it is not difficult to see roughly what Parliament intended when it enacted this provision – it wanted to make the admission of sexual history evidence to prove consent exceptional – the coincidence test which it used to achieve this was an extremely unfortunate choice. The test works tolerably well in some similar fact cases (ones like R v Smith), but not when applied to sexual history.
The litmus test is that of striking similarity and nothing short of it. Sexual behaviour could be regarded as a common place if it cannot reasonably be explained as coincidental due to its distinctive nature. However, the deliberation of what is sufficiently unique is open to a judge within the margin of his discretion, which can be arbitrary and subjective.
Therefore, in R v A (No. 2), the defendant’s argument that he had been having consensual sexual relationship with the complainant for weeks and had the last intercourse a week before was not within purview of the temporal qualification affixed in the provision. Furthermore, similarity in question was at best casual, since the Parliamentary intention in using the word “so” was to emphasise that mere similarity was insufficient. The gateway under Section 43(1)(c) of YJCEA 1999 is potentially very wide, only to be restricted by the word “so”, which compels the court to filter out casual explanations.
R V A (NO. 2): THE IMPACT AND THE REACTIONS
The paradigmatic position of the law substantially shifted after the decision in R v A (No. 2). The counsel for the defendant invited their Lordships to exercise their interpretive duty under Section 3 of the HRA 1998 and alternatively requested for a declaration under Section 4 of the HRA 1998. Whilst the judges were willing to give creative interpretation to a potentially incompatible legislation, they were unwilling to make declarations under Section 4 of the HRA 1998, contending that rights under Article 6 of the ECHR, is not absolute and may be limited in pursuance of a legitimate aim.
However, the extension of this restriction to complainant’s sexual history with the accused raised critical issues of proportionality. Their Lordships recognised the problem and stated that the niceties of the words of Section 41 of YJCEA 1999 could be abandoned in the interest of justice where common sense, time and circumstance may warrant an admission of evidence under the provision. This effectively conferred to the judges an unprincipled residual inclusionary discretion that is conspicuously absent in the text of Section 41 of YJCEA: the House of Lords has in effect rewritten the provision. The principle was effectively applied in R v R.
Even though Article 6 of the ECHR confers an absolute right, the doctrine of proportionality is necessarily relevant to the principle of “fairness”. In their course of assessing the fairness of the trial, their Lordships failed to appraise the implications of admitting sexual history evidence. Such evidence will only be fair if its probative value outweighs the harm of bringing it to court. An alternative approach to R v A (No. 2) would be to hold the evidence in the case to be either irrelevant or, if deemed relevant, is of such little probative value, outweighed by the significant risk of prejudice, that its admission is rightly circumscribed.
The decision in R v A (No 2) undermines Parliament’s honourable intentions by increasing judicial discretion and thereby allowing rape myths to play an active role in trials. The probative value of sexual history evidence is overestimated by juries and was overestimated by their Lordships in R v A (No. 2).
The increase of judicial discretion as a result of this decision is evident from the case of Armando Andrade v R where although no formal application to Section 41 of YJCEA 1999 was made, the House of Lords held that where the exclusion of evidence under a strict interpretation of Section 41 of YJCEA 1999 endangers the fairness of the proceedings, the court may be required by Section 3 of the HRA 1998 to adopt a convention-friendly interpretation of Section 41 of YJCEA 1999 to give effect to the defendant’s fair trial rights under Article 6 of ECHR. Such instances raise the argument that it has now become easier to admit evidences of previous sexual history with a defendant and has opened an avenue to cause the jury to draw negative inferences of the complainant’s character. However, this can be refuted by the results of a study noted by Louise Ellison and Vanessa E. Munro in which the which 160 members of the public were recruited and, having observed one of four mini trial reconstructions involving an alleged rape by the complainant’s ex-partner, were divided into juries and asked to deliberate towards a verdict. The results suggested that the vast majority of jurors were receptive, in principle, to the idea that a woman could be raped by a man with whom she had previously had a relationship.
Further, the decision may seem to have been effective in removing the doubts casted by academics like Neil Kibble on YJCEA 1999 that Act risks the exclusion of relevant evidence and consequently risks contravening the defendant’s right to a fair trial. There was a substantial consensus among the judges that Section 41 of YJCEA 1999 was not a workable section prior to the decision of the House of Lords in R v A (No 2), which restored a measure of judicial discretion in relation to the consent gateways and particularly Section 41(3)(c) of the YJCEA 1999.
More contrary views are defensible on multiple grounds: one R v A (No. 2) principle is fairly limited in its scope, to be used as a last resort in the rarest cases; two, it is unreasonable to expect the legislature to contemplate every conceivable situation arising under Section 41 of YJCEA 1999 and the court, with wealth of experience that it has, can make a calculated and non-contradictory application of both Section 41 of YJCEA 1999 and R v A (No. 2) principle. What needs to be comprehended is that R v A (No. 2) was not legislated to sidestep Section 41 of YJCEA 1999.
Nevertheless, despite the reluctance in the subsequent cases such as R v White to include sexual acts with third parties within the purview of relevant, footballer Ched Evans who was found guilty for rape in 2012 had his conviction quashed in April of 2016 by introducing fresh statements from two young men who described their sexual relations with the complainant. The appeal court ruled that evidence relating to the complainant’s sexual history could be included in the re-trial. Vera Baird, the former solicitor general, criticised the case by saying that it has taken the law back to about 30 years.
In conclusion, it can be stated that the the arbitrariness of the legal provisions has plainly resulted in inconsistencies and injustices, on both side of the aisle. This has caused the law governing sexual history evidence to be a mess. Parliament and the judiciary have hitched it up to a set of similar facts concepts which are at best confusing, at worst wrongheaded. The current law on admissibility suggests that there is no simple answer to the admissibility question. In the absence of any judicial or parliamentary intervention to clarify the law, it maybe preferable to exclude information of minute value to significantly reduce the influence of erroneous popular preconceptions on the conduct and outcome of sexual offence trials.
 Helen Reece, “Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?”  33(3) Oxford Journal of Legal Studies 445
  UKHL 25;  1 AC 45
 R v Henry, R v Manning  53 Cr App R 160
  EWCA Crim 741
 R v B  Routledge, Evidence Lawcards 2012-2013 (7th edition, Routledge 2012)
 R v Ben-Rejab  1 WLR 2364
  EWCA Crim 3765,  Crim LR 373
 Brian Brewis, “The interpretation of s. 41 of the Youth Justice and Criminal Evidence Act 1999 and the impact of R. v A(No.2)  1 A.C. 45”  80(3) The Journal of Criminal Law 169
  85 Cr App R 5
 DPP v Morgan  UKHL 3; R v Gjoni (Kujtim)  EWCA Crim 691
  EWCA Crim 3765,  Crim LR 373
 Mike Redmayne, “Myths, relationships and coincidences: the new problems of sexual history”  7(2) International Journal of Evidence and Proof 75
  11 Cr App R 229.
 Boardman v DPP  AC 421,  3 All ER 887
  EWCA Crim 2754
 Diane Birch, “Untangling Sexual History Evidence: A Rejoinder to Professor Temkin”  Criminal Law Review 370
 Clare McGlynn, R v A (no 2) : a feminist judgment. in Hunter, R., McGlynn, C. & Rackley, Feminist judgments : from theory to practice. Oxford: Hart Publishing 
 Olivia Barton, “R V A (No 2) and the Protection of Complainants’ Dignity, Privacy and Sexual Freedom”  3 North East Law Review 1
  EWCA Crim 1722
 Louise Ellison and Vanessa E. Munro, “Better the Devil You Know? ‘Real Rape’ Stereotypes and the Relevance of a Previous Relationship in (Mock) Juror Deliberations”  17(4) The International Journal of Evidence and Proof 299
 Neil Kibble, “The Relevance and Admissibility of Prior Sexual History with the Defendant in Sexual Offence Cases”  32 Cambrian Law Review 27
  EWCA Crim 946, para 35, where Laws LJ stated that it would take ‘a very special case’ to bring the complainant’s sexual acts with other men within the R v A exception
 Mike Redmayne, “Myths, relationships and coincidences: the new problems of sexual history”  7(2) International Journal of Evidence and Proof 75