Sexual Offence Complainants and Credibility: Why Virginity Testing is Pointless
| Date | 01 December 2015 |
| Published date | 01 December 2015 |
| DOI | 10.1177/0022018315619268 |
| Author | Sinead Ring |
| Subject Matter | Court of Appeal |
Court of Appeal
Court of Appeal
Sexual Offence Complainants and Credibility: Why Virginity Testing is Pointless
RvL[2015] EWCA Crim 741
Keywords
Rape shield, evidence of complainant’s previous sexual history, Criminal Cases Review Commission, rape, sexual
assault, medical evidence of hymenal disruption
Facts
On a reference from the Criminal Cases Review Commission (CCRC) the appellant appealed his con-
victions for three counts of sexual assault and one charge of rape.
The complainant, M, came to England from Nigeria at the age of 15. She lived with her half-sister and
her half-sister’s husband (the appellant) in South London. Within a year of living with them she made
allegations of sexual assault and rape against the appellant to a counsellor at her school.
The prosecution case was that M had been subjected to progressively serious sexual assaults, leading
ultimately to rape. The defence was denial: M was lying, perhaps out of a desire to be rehoused.
In the first trial the appellant was convicted of three counts of sexual assault. The jury could not agree
on verdicts on six other counts of sexual assault and one charge of rape. In January 2008 the appellant
was convicted on a retrial of the rape offence. In both trials the complainant asserted she was a virgin at
the time of the rape. The examining doctor’s witness statement, which was read to the jury at both trials,
indicated that the complainant’s hymen was disrupted in three places. The examining doctor could not
say when the complainant had first had sexual intercourse, beyond that it had been more than 72 hours
previously.
At the retrial on the rape charge the prosecution asserted that the evidence of hymenal penetration had
resulted from the rape by the appellant. This stance was a change to that adopted by the prosecution at the
first trial, where the medical evidence of hymenal damage had not been argued to be solely attributable
to the rape by the appellant. The new approach was consistent with the complainant’s statement that she
had told the appellant that he had taken her virginity, that he had apologised and said he had not known
that she was a virgin. Her evidence was that she bled for three days afterwards. However, the increased
focus on the issue of the hymenal injury ultimately became crucial to outcome of this appeal.
In November 2011 the CCRC referred the case to the Court of Appeal based on fresh evidence: a
previously undisclosed note made by an assistant social worker who had accompanied the complainant
to a medical examination. The note stated that the complainant had reported at that meeting that she had
been raped as a child. That appeal was dismissed ([2012] EWCA Crim 1961), the court holding that the
note was likely to be inaccurate because the examining doctor’s statement, which was likely to be a more
accurate record of the conversation, did not mention any assertion of childhood rape. Furthermore the
court held that there was stronger evidence on the issue and that the note would not have significantly
improved the defence’s armoury.
The present appeal was a second reference by the CCRC on the basis that new evidence had been
disclosed: original notes made by the examining doctor and her colleague, which appeared to confirm
The Journal of Criminal Law
2015, Vol. 79(6) 385–394
ªThe Author(s) 2015
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DOI: 10.1177/0022018315619268
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