Rape Trials and Sexual History Evidence
| Published date | 01 October 2017 |
| Date | 01 October 2017 |
| Author | Clare McGlynn |
| DOI | 10.1177/0022018317728824 |
| Subject Matter | Articles |
Article
Rape Trials and Sexual History
Evidence: Reforming the Law
on Third-Party Evidence
Clare McGlynn
Durham Law School, Durham University, Durham, UK
Abstract
Despite repeated legislative attempts to restrict the use of sexual history evidence in rape
trials, it continues to be admitted in many cases, causing considerable debate and leading to
further attempts to reform the law. In this light, this article examines afresh the admissibility of
sexual history evidence in rape trials. It focuses particularly on evidence relating to persons
other than the accused (third-party evidence), following the recent controversial judgment of
the Court of Appeal in RvChed Evans where such evidence was introduced. The justifications
for restricting sexual history evidence are considered, as well as research data on how often it
is being used. Following an analysis of the current law, the article concludes that urgent reform
is needed and a number of law reform options are examined.
Keywords
Sexual history evidence, rape trials, section 41, Youth Justice and Criminal Evidence Act 1999,
rape shield, sexual behaviour, Heilbron Report, Ched Evans, RvA
Lord Coleridge, giving judgment in 1887, would be forgiven for thinking that in RvRiley he had
settled the law on whether sexual history evidence with parties other than the accused is relevant
in rape trials. He said that in seeking to prove whether or not a criminal attempt to rape, as was
the issue in that case, has been made ‘upon her by A, evidence that she has previously had
connection with B and C is obviously not in point’.
1
He continued that any such evidence should
be excluded:
Corresponding author:
Clare McGlynn, Durham Law School, Durham University, Palatine Centre, Stockton Road, Durham, DH1 3LE, UK.
E-mail: clare.mcglynn@durham.ac.uk
1. RvRiley (1887) 18 QBD 481 at 483–4. Lord Pollock concurred stating that it is ‘clear that evidence of the woman having had
connection with other men would not be relevant’ and Mathew J said that this approach is ‘in accordance with justice and
common sense’.
The Journal of Criminal Law
2017, Vol. 81(5) 367–392
ªThe Author(s) 2017
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DOI: 10.1177/0022018317728824
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not only on the ground that to admit it would be unfair and a hardship to the woman, but also on the general
principle that it is not evidence which goes directly to the point in issue at the trial.
2
Finally, he identified the dangers of permitting such evidence, ‘It is obvious, too, that the result of
admitting such evidence would be to deprive an unchaste woman of any protection against assaults of
this nature’.
3
Unfortunately, the clarity of Colderidge’s exposition was not reflected in the development of English
law. An increasingly tolerant judicial approach to permitting sexual history evidence led to calls for
reform, with the 1975 Heilbron Report recommending significant new restrictions.
4
The subsequent
Sexual Offences (Amendment) Act 1976, however, resiled from the stricter Heilbron approach, placing
its faith in judicial discretion to limit the admission of such evidence. This discretionary approach,
however, did little to stem the flow of sexual history evidence being admitted: once again leading to
demands for legislative reform.
5
Eventually, the Youth Justice and Criminal Evidence Act 1999 was
adopted, replacing the discretionary regime with a closed set of exceptions to a general rule of exclusion
and, importantly, no overriding judicial discretion. Nonetheless, despite the clear legislative intent to
curtail the use of sexual history evidence in rape trials, it continues to be admitted in a considerable
number of trials. In addition, shortly after the introduction of the 1999 Act, the House of Lords decision
in RvAreintroduced an element of judicial discretion.
6
Not surprisingly, therefore, there have been
continued calls for (further) legislative reform. Most recently, proposals were made in Parliament to
strengthen the law following the controversial Court of Appeal judgment in RvChed Evans where it was
held that sexual history evidence relating to persons other than the accused was admissible and poten-
tially relevant.
7
Following a retrial, where this evidence was introduced, the defendant was acquitted of
rape.
In this context of high-profile and contentious public debates, and likely further attempts to
reform the law, this article examines afresh the admissibility of sexual history evidence in rape
trials.
8
In light of the Evans controversy, it focuses particularly on evidence relating to persons other
than the accused (third-party evidence). In order to provide necessary context, it begins by consid-
ering the justifications for restricting sexual history evidence, followed by an out line of the research
data on how often this evidence is used. The current law, as set out in s. 41 of the Youth Justice and
Criminal Evidence Act 1999, is then analysed, including a detailed assessment of the Evans judg-
ment. Concluding that the law is in urgent need of reform, the final section puts foward a number of
recommendations.
Justifying Restrictions on Sexual History Evidence
Evidence focusing on a complainant’s sexual history has long been introduced in rape trials, originally
focusing on ensuring that evidence of prostitution—’notorious bad character’—was before the court to
2. Ibid.
3. Ibid. Coleridge was not alone. Ten years later, in the Scottish case Dickie vH M Advocate, Lord Justice-Clerk Macdonald stated
in relation to sexual history evidence with third parties: ‘I am not aware that such evidence has ever been allowed, and indeed it
could only be allowed upon the footing that a female who yields her person to one man will presumably do so to any man—a
proposition which is quite untenable’ (1897) 24 R(J) 82 at 84. Lord MacDonald did hold that such evidence would be
admissible if it was part of the events which formed the subject matter of the charge.
4. Heilbron Committee, Report of the Advisory Group on the Law of Rape, Cmnd 6352 (HM Government, 1975).
5. In RvA, Lord Steyn stated that the 1976 Act ‘did not achieve its object of preventing the illegitimate use of prior sexual
experience in rape trials’: [2001] UKHL 25 at 28.
6. Ibid.
7. RvChed Evans [2016] EWCA Crim 452.
8. For ease of reference, the terms ‘rape’ and ‘rape trials’ are used throughout, but should be taken to include all sexual offences
and sexual offence trials.
368 The Journal of Criminal Law 81(5)
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