Myths, Relationships and Coincidences: The New Problems of Sexual History
| Author | Mike Redmayne |
| DOI | 10.1177/136571270300700201 |
| Published date | 01 March 2003 |
| Date | 01 March 2003 |
| Subject Matter | Article |
Myths, relationships and
coincidences: The new
I
problems
of
sexual history
By Mike Redmayne
*
London School
of
Economics
Abstract.
This article reviews recent developments in the law governing the
admissibility
of
sexual history evidence in England and Wales. After the decision
of the House
of
Lords in
R
v
A
(No.
2),
the law reflects a consensus that the
complainant’s sexual history with third parties is generally irrelevant to the
issue of consent in rape trials. In the first part of this article, the justifications
for this conclusion are questioned; it is suggested that the relevance of sexual
history is a more complex issue than it is usually acknowledged to be. The
second part
of
the article uses points made in the first to question the way in
which concepts drawn
from
the law on similar fact evidence have been used as
the admissibility framework
for
sexual history. Aspects
of
the decision in
R
vA
are examined in detail.
he last few years have seen important developments in the law governing
the admissibility of sexual history evidence in rape trials in England and
Wales. First came the introduction, in the Youth Justice and Criminal
Evidence Act
1999
(the
YJCEA),
of new provisions on this topic.’ These met long-
standing criticisms of the previous law with a much more restrictive approach to
the admissibility of rape complainants’ sexual histories. In the eyes
of
some,
however, this reform went
too
far, and
it
was
not
long before the YJCEA was
challenged under the Human Rights Act
1998
for incompatibility with the
European Convention on Human Rights, Article
6
of which guarantees defendants
I
am grateful to Neil Duxbury, Neil Kibble, Nicola Lacey, Helen Reece and David
Schiff
for
comments on various drafts of
this
article.
1
For an overview
of
these provisions, see N. Kibble, ‘The Sexual History Provisions: Charting a
Course Between Inflexible Legislative Rules and
Wholly
Untrammelled Judicial Discretion?’
[2000]
Cnm
LR
274;
D. Birch and
R.
Leng,
Blackstone’s Guide
to
the YouthJustice
and
Criminal Evidence
Act
1999
(Blackstone: London,
2000)
ch.
7.
THE INTERNATIONAL JOURNAL OF EVIDENCE
&
PROOF
(2003)
7
E&P
75-100
75
THE NEW PROBLEMS
OF
SEXUAL HISTORY
a fair trial. The outcome of this challenge was the decision of the House of Lords
in
R
vA
(No.
2j.z
While this decision avoided a declaration of incompatibility, it is
controversial in its
own
right for its very strained interpretation of the
YJCEA
provisions.
The argument in this article is that there is much that is wrong in both the
legislation and the judicial response to it (though what is wrong does not have
much to do with human rights). One of the principal problems is that both
Parliament and the House of Lords were influenced by concepts drawn from the
law on similar facts when trying to develop a workable approach to the
admissibility of sexual history evidence. The concepts chosen, however, are the
wrong ones. That argument is developed in the second half of this article. In
order to understand where the law has taken a wrong turning, we need to start
by considering the fundamental question in this area: whether, in general, sexual
history evidence is relevant. This is the issue addressed in the first half of the
article.
To
set the scene for this discussion, it will be helpful at this point to note
a proposition, which has been very influential in the recent developments, and
with which we will take issue.
Although the decision in
RvA
was unanimous, it is not notable for its consensus.
Various issues provoked disagreement. On one point, however, all of the judges
agreed: it is a myth that ‘unchaste women [are] more likely to consent to
intercour~e’.~
This
is a myth, moreover, of which it was felt necessary to purge
the law of evidence. Those responsible for the sexual history provisions in the
YJCEA
also took this view.4 Attacking this myth has therefore been a unifjrlng
theme in the legal developments we are examining.
There is, however, a rather large problem here. It is not just that the statement
‘unchaste women are more likely to consent to intercourse’ is virtually
meaningless. (‘More likely than’ involves a comparison, but no point of comparison
is identified: this is rather like just saying
‘I
am taller than’.) It is also that, when
a determinate meaning is given to this proposition (if, for example, the point
of
comparison is taken to be chaste women,
or
the average woman), it turns out not
to be a myth at all. However-and the importance of this point cannot be
overemphasised-to recognise this is not to accept that sexual history evidence is
relevant
or
that it should generally be admissible. There is nothing inconsistent
~
2
[2002]
1
AC
45.
The decision is discussed in detail in
D.
Birch, ‘Rethinking Sexual History Evidence:
Proposals for Fairer Trials’ [2002] Crim
LR
531.
3 [2002]
1
AC 45 at 1271 (Lord Step): see also at [3] (Lord Slynn). at I761 (Lord Hope), at 11241 (Lord
Clyde), at 11471 (Lord Hutton). The proposition was adopted from the decision of the Canadian
Supreme Court in
R
v
Seaboyer
(1991) 83 DLR (4th) 193.
4 See. e.g., the comments of Paul Boateng. Standing Committee
E.
24 June 1999. and
of
Lord
Williams.
HL
Debs, 8 February 1999,
cols
58-59.
76
THE INTERNATIONAL JOURNAL
OF
EVIDENCE
&
PROOF
To continue reading
Request your trial