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Cross examinations in rape and sexual offence cases
Limiting the questions – rape stigmas and myths
The cross examination of complainants in sexual cases as to their sexual history was limited by s 41 (1) of the Youth Justice and Criminal Evidence Act, 1999. This meant that leave in order to question the complainant on such matter could only be granted in very limited circumstances.
But even though s 41 gave effect to a major policy initiative to cut back the use of sexual history evidence in rape trials speculation has arisen that maybe the legislation has not formulised its protective role. The legislation was intended to avoid questioning as to the complaint’s sexual past which may led to assumptions being made as to whether the victim had actually been raped or not. It revolves around the idea that a complainant’s sexual activities prior to the allegations being made were irrelevant to the matter at hand. But s 41 does allow for questioning to be made about the sexual behaviour which is part of the incident(s) to which the defendant is being tried (s 42 (1) (c)).
The need for such stringent legislatory measures were planned to aid in the elimination of the many stigmas that surrounded rape and the trial process and it has become apparent that the myths persist behind the veil of changed law and gender-neutral language. S. 41 was introduced in response to the wide discretion previously afforded to trial judges under the Sexual Offences (Amendment) Act, 1976 on the issue of restricting cross-examination of a complaint in rape cases as to her past sexual experiences.
Section 41 – resolving the problem? The findings of the Home Office Online Report 20/06
S 41 was intended to avoid the complainant being humiliated by intrusive questions being made into their privacy. But the findings of the Online Report 20/06 by Kelly, Temkin and Griffiths have proved just as controversial as the issues behind the statute.
Although statistics illustrated in Report 20/06 have shown that the understanding of s. 41 legislation is less than satisfactory it has shown that:
“Whilst sexual history evidence appeared in the majority of trials, there were very few examples of the lengthy and humiliating questions that has been documented in other studies”
In order for the defendant in a rape case to be able to question the complainant as to their previous sexual history the defendant must be granted leave in certain circumstances; one of these being that under s. 41 (5) where
“[the evidence or question] relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant.”
One of the main points focused upon in Report 20/06 was the lack of definition of the terms “sexual behaviour” and “sexual experience” in s 41 and so uncertainty in its scope. Along with this lack of outright definition as to the meaning of “sexual history”, the manner in which leave is being granted has also not been strictly adhered to in rape trails. Despite the requirement for the applications to be made in advance and in writing, the majority, it was found, were being made verbally at trial. This would mean that counsel for the prosecution would only have limited time in which to respond to the argument made or to consult with the CPS or the complainant.
Dramatically, the same research which adduces a lack of observance to requirements of procedure also found that in several cases sexual history evidence was adduced by the defence without being granted leave and that the judges did not notice or did not apply a sanction for the breach. Additionally, it was observed that often the rules were “ignored or avoided” supporting this by stating that there was no evidence that the rules were being “widely observed”. The report stated that there was a “surprising lack of knowledge” about the correct procedure among nearly half of the 17 judges interviewed.
Further, it was revealed that the s. 41 had had “no discernable effect” on reducing the number of failed prosecutions. Solicitor General Mike O’Brien reported
“Some judges are allowing late application or questions raised during the trial…and faced with a defendant risking a long prison term, decides that in the interest of a fair trial he should allow previous history to be raised.”
The impact of R v A: critique from the Human Rights camp
One of the main courses of criticism has arrived in the form of critique from a human rights angle. The Human Rights Act 1998 threatens to undermine the protection afforded to complainants under s.41. The case of R v A (No 2) decided by the House of Lords, raised a number of issues as the House of Lords struggled to construe s. 41 – 43 in accordance with the requirements of Article 6 of the ECHR – and the recognition of the right to put forward a full defence and consequentially the right to a fair trial.
Their Lordships held that a purposive approach to the construction of s 41 as required by the HRA 1998 should be adopted. Admissibility of evidence was dependant upon content, but trial judges must be satisfied before granting leave that excluding such evidence would breach the defendant’s right to a fair trial.
The appeal related specifically to s 41 (3) (c) but their Lordships provided guidance as to s 41 (3) (a) and (b). Under s 41 (3) (a) (which allows leave to cross examine is granted where evidence is relevant to an issue other than consent) Lord Hope identified a number of circumstances that might satisfy this paragraph:
The first being where the accused relies on a defence of honest belief in consent and the second where allegations of bias or fabrication are made against the complainant. Under s 41 (3) (b) (which allows leave to be granted where evidence relates to sexual behaviour “at or about the same time” as the alleged rape), Lord Steyn suggested that evidence relating to an invitation to have sex earlier on in the same evening as the alleged rape would satisfy the provision.
Whilst, in accordance with s 41 (3) (c) Lord Hope concluded that this test was not satisfied on the facts as there were no similarities with the complainant’s behaviour on a previous occasion. S 41 was designed to prevent cross-examination on the basis that because the complainant had had consensual intercourse on a previous occasion she was more likely to have consented on this occasion. So, the onus in these circumstances was upon the defendant to demonstrate that the similarity in the complainant’s behaviour cannot be explained on the grounds of coincidence. In R v A s. 41 (3) (c) was used as the means for admitting evidence of a previous sexual relationship between the complainant and the defendant.
Damage limitation: further case law and the balancing act
Consequential case law has reflected the interpretation of the HRA and has been heavily influenced by R v A. In R v T; R v H (Complainant’s sexual history) the defendants were prevented from cross-examining the complainant under s 41; on her failure to mention the alleged conduct when reporting to the police alleged abuse by other men. Also by asking questions designed to demonstrate a pattern of lying in relation to sexual and non-sexual matters. The Court of Appeal held that, once again, s 41 must be given a purposive interpretation. Questions directed at the complainant’s credibility were not automatically prohibited under s 41 and in this instance should have been allowed.
But not all case law has seen that s 41 has been used as a tool in advancing the defendant’s case by casting doubt on the complainant’s creditability. In R v E (Dennis Andrew) the appellant appealed against convictions for indecent assault against his two daughters, aged six and four at the time of the trial. 15 months after the trial the girls, whilst living with foster parents, made allegations of indecent assault against another person. The appellant wanted to cross-examine the children about these complaints on the basis that it was unlikely that they were true and so would cast doubt upon their creditability at his own trial. The appellant wished to do this through questioning the girls as to their understanding of sexual matters. The Court of Appeal held that it was unlikely that Parliament had intended for children to be cross-examined on their perception of sexual matters in order to determine whether protection afforded by s 41 applied. The appeal was consequentially dismissed.
It has become apparent that case law has attempted to grasp the balancing of the effect evidence would have upon the credibility of the complainant and the value the evidence would have in supporting the defendant’s denial of the complainant’s allegations. In R v M, even though the evidence would undermine the complainant’s credibility and would aid in supporting the defendant case of denying the allegations then such evidence would not be excluded under s. 41 (4).
It seems that there has been a struggle to balance the matters involved when considering the use of s 41 and the exclusionary powers of the judge. A balance has to be met between the evidence holding particular relevance and that the evidence is probative enough that a failure to allow it would put the accused at risk of an unsafe conviction.
Most recently, R v F the defendant applied to have evidence of photographs and videotapes adduced to show that the complainant was happy in the adult relationship and that it was not one of submission. Although the trial judge ruled that under s 41 the fact that the adult relationship could be adduced before the jury but he refused to allow the evidence to be adduced or questions be asked of the complainant about the photographs or the videotape. The judge admitted that the videos had been made voluntarily but he concluded that they could not advance the defendant’s case and could neither be used on the issue of credibility. The defendant was consequentially convicted and appealed. The appeal was allowed and a retrial ordered as the judge should have allowed the evidence to be disclosed to the jury as the dispute about the nature of the relationship being either submissive or happy was vital in to the jury’s decision. The complainant’s case that the relationship was one of submission was shielded from proper cross-examination if the evidence were not admitted. So the appellant was entitled to adduce such evidence as it was held to be the cornerstone of his defence and although the evidence is necessary to a defence it is admissible even though it may impugn the credibility of the complainant because it us a direct challenge to her evidence.
According the progression in case law and the impact of the HRA upon the matter and the right to a fair trial, it can be concluded that once the defendant can show that the evidence of the previous sexual history of a complainant is relevant and fulfils the statutory requirements in s 41 the evidence. This may also include any questions in cross-examination, must be admitted in full and that the trial judge does not have the discretion to admit only certain parts of or aspects of it.
Where does s 41 go from here?
According to the Report 20/06, and even more shockingly, s 41 has been widely misunderstood and if only in part, ignored. Although it has been revealed that the legislation is unnecessarily complex, this is not a defence for judges and barristers to have a lose grasp of the matters. Whilst police officers and rape support services are unaware of the manner in which it should be understood as these are the people who are often responsible for “advising” the complainant as to what to expect of the legal process.  Report 20/06 recommends that all those involved in the handling of rape cases be given extra training as an absolute priority.
But as been mentioned previously all-out attacks on complainants are seen as poor advocacy. So although the understanding of s 41 has been bought into question by more than one source and their investigations of the matter; this development alone would warrant (although limited) praise of the legislation.
Recently, the media reported on the lack of support behind Government proposals to reform the law in order to boost the rape conviction rate. The Council of Circuit Judges dismissed all the proposals. The reforms intend to salvage the plummeting rape conviction rate. The proposed reforms included a new statutory definition of capacity to consent to sexual intercourse, which would clarify when a woman would be considered to be too drunk to make the decision. More importantly, the judges opposed the use of video tape evidence of the complainant’s first approach to the police of their initial complaint and also denied the use of expert witnesses in court to help dispel “rape myths”. The myths that lurk behind rape trials may have, even if only slightly, been dispelled through society’s progression of its views on the matter. With obvious developments in attitudes from those 30 years ago; where rape victims were more often than not blamed for provoking their attackers (e.g. wearing provocative clothing or going to “risky” places). But for the stigma behind the matter to totally disappear a more stringent and narrow interpretation n of the statute and its process must be abided by in order to counter the bias against the creditability of women in these matters. Without this and further a lack of proper procedural conduct in rape trials the myths behind will be allowed to influence the matters at hand.
The use of past sexual history and the myths surrounding rape cases go hand in hand. But the tactics being use in order to obtain an acquittal have often been well outside the remit recommended by s. 41 as was mentioned in Report 20/06. In an unnamed case where the defence barrister asked a defendant if there had been blood on the bed sheets after he first had sex with a woman who had made a rape complaint against him. “This was clearly intended to suggest that C (the complainant) was not a virgin when she first had sex with D (the defendant)”. The report claimed that this tactic was typical in attempt to “evade the legislation”.
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 Dennis, I., Sexual History Evidence: Evaluating Section 41
 Fields, MD., Challenging Bias against Women Witnesses: Lessons from Criminal Proceedings.
 McGowan, L., Court of Appeal: Evidence: Cross-examination of Complainants in Sexual Cases
 Section 41: An Evaluation of new legislation limiting sexual history evidence in rape trials. Liz Kelly, Jennifer Temkin and Sue Griffiths
 op cit at p.47
 Creaton, J., Recent Judicial Decisions. In the discussion of R v V (2006) EWCA 1901
 In accordance with statistics found in investigations carried out in Section 41: An Evaluation of new legislation limiting sexual history evidence in rape trials
 ibid 4
 Data for 2004 shows the proportion of rape allegations that result in a convictions continues to fall, standing at 5.6% out of 14,000 reported offences.
 (2001) 3 All ER 1
 (2001) EWCA Crim 1877
 (2004) EWCA Crim 1313
 (2004) All ER (D) 103
 R v Mukadi (2003) EWCA Crim 3765
 (2005) EWCA Crim 493, (2005) 2 Cr App R 13
 McGowan, L., Court of Appeal: Evidence: Cross-examination of Complainants in Sexual Cases.
 op cit
 ibid 1
 op cit
 The Guardian, Judge try to block rape trial reforms. Clare Dyer, January 23, 2007
 33% of reported cases in 1977 to 5.29% in 2004
 ibid 2
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