This is an extract of our Evidence Practice And Principles Sexual Offences Sexual History Evidence document, which we sell as part of our Evidence II: Practice and Principles Notes collection written by the top tier of University College Dublin students.
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SEXUAL HISTORY EVIDENCE
Are applicants allowed to adduce evidence of the C's sexual history, motivated by a desire to depict the complainant as promiscuous or immoral?
Does the discussion of this evidence give legal standing to rape myths and overshadow the principle of meaningful consent?
Consent is - or should be- consent as to that particular act.
Examples where sexual history may be admissible because is it relevant:
a. To contradict assertions made by the complainants about his or her sexual past
- Credibility b. To explain patterns and characteristics of a prior or ongoing sexual relationship between the C and the A with a view to inferring the likelihood of consent.
- Even though the C can easily consent to one act and not the other? Consent is not lasting - it can be stopped at any moment during sexual intercourse - so why can it be inferred, arising over a long period of time? This assumes that once consent is given, it continues until positively stopped. This is at odds with the offence of rape. Consent is required to be refreshed for every sexual act by the victim.
R v Seaboyer 1991
McLachlinThe common law permitted questioning on the prior sexual conduct of a C without proof of relevance to a specific issues in the trial.Historically, it was presented as tending to make it more likely that the complainant had consented to the alleged assault and as undermining her credibility generally.Based not on facts, but on the myths that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief
Because they were generally immoral, and fail to uphold the moral fabrics of societyThese twin myths are discreditedThe fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with the accusedNor does it make her a liar
MadaMa Justice L'Heurex-DubeThough often presented as a neutral standard to be objectively applied, decisions about relevance are, 'particularly vulnerable to the application of private beliefs' as TJs draw on their own personal experiences, 'common sense, and understanding about human nature,
conduct and motivation - in order to decide whether one fact is logically connected or pertinent to another. Contemporary Canadian legislation:
S 276 of the Criminal codeSpecifically precludes admission of evidence of sexual regardless of whether it is A or thirdparty, solely to support an inference that the C is more likely to have consented to the sexual activity tat forms the subject-matter of the charge.
ORIGIN IN IRELAND
People v McGuinness 1978 IR
Kenny jThe complainant will never admit that she consented
Pro-defence. The presumption of innocence does not equal a presumption that victims of rape are lying. Research has shown that false allegations of sexual offences are not higher than other crimes.
Why would they be anyway? Based on outdates traditional views of woman that they uphold morality which is inferred from their passivity, purity and piety. Its like saying in a normal assault case - the victim will never admit that they are lying and allowed the person to beat them up so the prosecution should adduce evidence to show that because they've been beaten up before they're more likely to have allowed themselves to be assaulted.counsel must seek to show that at the time of the offence her character and behaviour were such that she would be likely to have consented or that she has invented the evidence that she is giving.By cross examining her on her sexual past, the prosecution can 'introduce doubts into the minds of the jurors about her character or her credibility'When the defence is consent [the judge] must allow unpleasant charges to be made against the complainant in connection with her past and should not indicate to the jury that he disapproves of this being done
Leads jury to make unfounded assumptions not directly relevant to the conduct in question
Unfounded that a complainant, due to their sexual experience in the past, was more lieklyt
have consented on the specific occasion or that they are promiscuous - no logical evidential basis as McLachlin stated
This had the effect of putting Cs 'on trial as to his or her character1' which contributed to rates of attrition
Isn't this infringing a rule of law anyway e.g. bad character evidence?
Criminal Law Rape Act 1981
1 MGrath on Evidence para 9-150
Restrictions on evidence and cross-examination at trials for rape offences
Only applied to rape offences and to sexual experiences 'with a person other than the accused.'
Criminal Law (rape) Amendment Act 1990
S 13Widened the scope to cover other sexual offences and to bring sexual experiences with the accused within the terms of the section
The amended section (by s 13) is now:If at trial any person is for the time being charged with a sexual assault offence (which includes rape under s 4) to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience
(other than that to which the charge relates) of a complainant with any person.
So, remedied the defect in s 3 which only regulated admission of sexual experience with people other than the accused, this bars admission of sexual experience with the accused as well e.g. 'any person'
The nature and extent of the discretion for a judge to allow an application to admit:
a. Shall not give leave unless its made through application in absence of jury b. Shall give leave if and only if:He is satisfied that it would be unfair to the accused to refuse to allow it which is to say:Without the evidence or question the jury may be satisfied beyond reasonably doubt that he is guilty, and the admission of that evidence might reasonably be that they wouldn't be so satisfiedIf it has the capacity to reasonably change the verdict
Questions asked to the victim in breach of the order for leave 3 (3)If, despite the fact leave has been granted it appears to the judge that any question or proposed question to be asked
Is not or may not be properly asked in accordance with that leave,
He may direct that the question shall not be asked or if asked shall not be answered.
Except in accordance with his leave given on a fresh application under this section
In other words, even prejudicial and unfair cross-examination which effectively renders the purpose of the section and the section of itself ineffective - can occur - the C just doesn't have to answer.
The accused's experience.The act does not regulate the admissibility of evidence of an accused's sexual experience
But such evidence can be excluded on some other basis such as the rules on bad character and misconduct evidence - depending on the nature of the evidence
So potentially, you can have a situation where an accused's past of having several convictions or allegations of rape and sexual assault is inadmissible but the C's past of merely having sex with someone can be admitted.
SEPARATE LEGAL REPRESENTATION:
Sex Offenders Act 2001 34:Inserted a section 4A into the original 1981 act:Where an application under s 3 is made, the C shall be entitled to be heard in and to be legally represented during the hearing of the application.
People v Vardoshilli CA 2009
During an appeal against a sentence, the judge made a passing reference:Pleading guilty allows victim to 'be spared the ordeal of' preparing for court, giving evidence and having her sexual history explored.It was suggested as part of the defence that the victim had engaged in sexual activity with the applicant on a previous occasion and which was denied by the C
People v GK 2007The court should favour refusal to grant leave over allowance2
S. Leahy, "Whether Rules or Discretion? Developing a Best Practice Model for Controlling the Admissibility of
Sexual Experience Evidence in Sexual Offence Trials'' (2014) 4(1) Irish Journal of Legal Studies 65.
2 Empirical evidence suggests that the direction to use the power to grant leave sparingly 'has not translated into a reduction in the use of such evidence in Irish sexual offence trials.' Report conducted on, inter alia, the effect of s 3 on sexual offence trials (post GK) - found that the introduction of the statutory provisions reduced the use of the evidence to some extent. However, of the 7 cases where applications were made, 6/7 were granted. Suggests they are 'granted without much difficulty'. In a separate study, DPP files were analysed for 40 rape trials between 2003-2009 and 70% of s 3 applications were granted in those cases. There is also a
'death of appellate judgments in this areas' which indicates that 'defence counsel are not experiencing any great difficulty in getting leave' Thus, while an overall reduction in the admission of such evidence has resulted, the research shows that when an application is made there is a high likelihood that it will be granted,
meaning there is still a likelihood for victims to be deterred from reporting or going through with a trial due to deterrence.
The 'several restrictive terminology of the statutory provision' means 'a decision to refuse to allow cross-examination as to past sexual history may more readily be justified in most cases than the converse.The act is explicit in its intention in this regard.
Age?'the younger the age of a C, the less desirable it is to ever allow cross-examination which may well be extremely traumatic for a C of tender years'
Where the leave is granted, and questioning is allowed;It should be confined only to what is strictly necessary and should never be utilised as a form of character assassination of a CThe test for whether certain questions are not put forward or answered is one of fairness
Relevance?The admission of a history of sexual activity with other boys of her own age starting from age 12 and concurrent with the time of the alleged sexual abuse
Why? There was evidence showing that she had a ruptured hymen. Because she was so young, the jury would not surmise that she would've had sex with anyone else than the complainant.Jury 'left with only one suspect.'The jury would have been unlikely to infer the participation 'of a girl of such tender years' in any other possible sexual activity than the abuse at hand.The hymen could only be seen as strong corroboration of the C's evidenceThe court stressed that if it was believed, the fact that C 'was engaging in inappropriate sexual activity with other boys…does not of itself undermine the C's evidence that she was sexually abused by the accused.'
The purpose of admitting:'non-disclosure or concealment of the behaviour in the particular context…gives rise to an anxiety that the accused may not, in the absence of some limited questioning to clarify this issue, have received a fair trial in accordance with due process.'Nothing in the transcript of the trial suggested that she would've been 'unfairly or unduly traumatised by a limited form of cross-examination confined to testing the plausibility of her account and the weight to be attached to her account by reference to the behaviourBalanced with the medical evidence concerning her hymen, the ruling was warranted as without cross-examination there was no reason for the jury not to absolutely accept her evidence at face value as they had 'no reason whatsoever to suspect that anyone other than the accused might be involved.'
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