The law regulating the offence of rape

The main controversy in this area of law lies within the effect that previous sexual evidence may have on the jurors. It is argued this kind of evidence acts like a ‘double-edged sword’ meaning that it could either provide probative value or a prejudicial effect on the jurors. This concludes that the previous sexual history may be relevant to deciding the credibility of the complainant but it also runs the risk of creating a prejudicial effect on victim’s image.

Following the recommendations of Heilborn, section 2 of Sexual Offences Act (Amendment) 1976 introduced new restrictions to the use of sexual history evidence in court. It provided that the trial judge had absolute discretion when allowing evidence concerning complainant’s sexual relations with any person other than the accused (section 2(1)). The judge also had discretion to decide whether it was fair for the defendant to adduce evidence or ask questions (section 2(2)). The Act did not on the other hand consider whether it was fair to the victim to have these evidences brought into court. As a result of the very discrete nature of the Act, it was challenged only 5 days after it was introduced by R v. Lawrence. It was decided in this case that evidence about complainant’s sexual experiences with other men was actually substantial information for the jury when reaching a verdict.

Once again the law was reviewed and is now amended by the Youth Justice and Criminal Evidence Act 1999. Section 41 of this Act provides four exceptions by which previous sexual history evidence may be admissible. Section 41(3)(a) refers to reasonable belief in consent, therefore allows evidence of previous sexual history to be relevant in establishing whether this belief was honest/reasonable. Section 41(3)(b) regards sexual history to be relevant evidence if ‘it is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused’ [2] . The House of Lords held in R v. A (No 2) that this section did not cover the sexual relationship the victim had had with the accused in the past three weeks. Section 41(3)(c) permits questions to be asked and evidence to be put forward if the sexual behaviour ‘is alleged to have been so similar to any alleged sexual behaviour of the complainant which took place as part of the event which is the subject matter of the charge against the accused or to any other sexual behaviour of the complainant which took place at or about the same time as the event, that the similarity cannot reasonably be explained as a coincidence.’ [3] The last exception provided by this Act is found in section 41(5) which allows questioning about issues raised by the prosecution, provided that it does not interfere with evidence given on behalf of the accused.

YJCE Act 1999 could be seen as an improvement of section 2 of Sexual Offences Act (Amendment) 1976 as it restricts judge’s discretion to admissible evidences. However criticism has been made because the act is tending to fit every case within one of the categories provided by section 41, when in reality it is hard to predict all the situations that may arise. As a response to this issue, judges have been applying the rules of interpretation provided by section 3 of Human Rights Act 1998 which allows them to fit almost any situation within the scope of one of the exceptions. Another approach has been that of a declaration of incompatibility which interferes with the right of the defendant to a fair trial under Article 6. Subsequently, the judges would be compelled to withhold relevant evidences from the jury and therefore upheld the conviction.

(a) Considering the facts in this scenario it is arguable whether questioning about Jeremy’s sexuality (Steven claiming that Jeremy initiated the intercourse thus suggesting that he is homosexual) could be granted. However, it is obvious that none of the provisions of the 1999 Act extends to include someone’s sexuality within the meaning of ‘previous sexual evidence’. This point was also raised by the appellant in Rv. Beedall, a case with very similar facts. The appellant had applied to the judge for leave to cross examine the defendant towards his sexuality. Appeal was dismissed on grounds that the YJCE Act 1999 did not permit it. It was held that:

‘In terms of the admissibility of evidence under the Youth Justice and Criminal Evidence Act 1999 s.41, there was no difference between evidence from a female complainant as to her previous sexual history and experience, and evidence from a male rape victim as to whether he had previously engaged in any homosexual activity, since both questions were predicated on the proposition that previous consent was evidence of present consent.’ [4] 

It follows then, that granting leave to such evidence would bring the law one step backwards by considering whether previous consent is evidence to present consent (R v.A) ie. supposing that Jeremy has previously had intercourses with other male partners. Moreover, defendant’s cross examination would also suggest that a promiscuous complainant was less credible thus risking to have a prejudicial effect on the jury. In comparison to our facts the defendant in Rv. Beedall also put forward medical evidence conforming that the victim did not suffer any anal injuries. This piece of evidence was considered to be inconclusive because injury was not necessarily to be expected.

Having compared both cases it is unlikely that the judge will grant leave to Steven to cross examine Jeremy about his sexuality. On the other hand it is arguable whether the operation of law in this case would lead to justice as the victim’s sexual tendency would be a relevant factor when establishing the issue of consent. On these grounds it might be unfair to compare the evidence brought by a female victim with that brought by a male victim of rape. Based on probability it is far more predictable for a woman to previously have consented to sexual intercourse with a man, rather than for an ordinary man to have done so, unless he is homosexual. Therefore evidence about Jeremy’s sexuality might be valuable to the jury and would not necessarily suggest that had he previously consented to homosexual intercourse(s) he also consented in the instant case in question.

(b) Applying the law to the given facts it is arguable whether evidence related to Jemima’s previous sexual history would be admissible. Anthony may be willing to cross-examine Jemima in relation to their ongoing affair, alleged abortion or even the fling that Frank claims to have had with her. Considering the decision in R v A it is evident that leave will not be granted for evidence to be brought under section 41(3)(b) as it was held that ‘...at or about the same time...’ does not include evidence about sexual relations that have occurred more than 24 hours before or after the alleged assault. However difficulties may arise if Anthony decides to apply for leave under section 41(3)(c) and claims that section 41 overall interferes with his right to a fair trial as granted by Article 6 of HRA. In such a case the court will have to strike a balance between victim’s discretion granted by s 41 and defendant’s right to a fair trial. If evidence will be more likely than not to affect jury’s conclusion then it will be unfair to withhold such evidence from the jury. House of Lords in R v A held that s 41(3)(c) could be interpreted, under the rules of interpretation set out by s3 of HRA 1998, to admit evidence about previous relationship between the victim and the defendant. Referring now to evidence about the alleged abortion it is debatable whether it would be admissible and relevant to establish the issue of Jemima’s consent and it does not seem to fall within any of the exceptions provided by statue. Moreover considering Frank’s evidence it is not likely whether it falls within one of the four exceptions provided by s41. A similar case to be considered here is that of R v Viola where two men were allowed to introduce evidences about sexual experiences with the complainant which took place hours before the alleged rape. In contrast to Viola in the instant case the fling does not seem to have happened at or about the same time as Anthony’s assault. Neither is it similar with the affair Anthony claims to have had with Jemima.

(c) The facts of this case suggest that evidence about previous sexual history could be admissible both by section 41(3)(b) and (c) as it is relevant that the sexual intercourses which Paul an David claim to have happened are so similar to the alleged rape that they cannot be explained by mere coincidence, it also follows that these events took place just a few hours before Laurence’s assault. The facts of this case are very similar to those of R v Viola. It was held here, allowing the appeal, that: ‘If the jury's view could reasonably be expected to be affected the judge has no discretion to refuse the cross- examination ’. [5] This case was decided under the previous legislation of Sexual Offences Act 1976. Although this legislation has now been amended by the YJCE Act 1999 these evidences will still be adduced.

Even though it is obvious that evidence given by Paul and David is likely to affect the jury’s view it is arguable whether Fiona did consent to this particular intercourse with this particular man. Considering the facts given it is questionable whether she would consent to intercourse with a third partner within a matter of hours. However as it is known from criminal law that ‘drunken intent is still an intent’ it follows that ‘drunken consent is still a consent’. In the instant case there is enough evidence to show that Fiona might as well not know/recall that she was consenting at the time the assault took place.