The Admissibility of Sexual Orientation Evidence as Evidence of the Complainant's “Sexual Behaviour” Under s.41 of the Youth Justice and Criminal Evidence Act 1999

DOI10.1177/00220183211060169
Date01 December 2021
Published date01 December 2021
Subject MatterCase Notes
The Admissibility of Sexual
Orientation Evidence as Evidence
of the ComplainantsSexual
BehaviourUnder s.41 of the
Youth Justice and Criminal
Evidence Act 1999
RvT[2021] EWCA Crim 318, Court of Appeal
Keywords
Rape, sexual orientation evidence, evidence of any sexual behaviour, fair trial
The appellant (A) was convicted of two counts of rape. A and the complainant (C) had married in 1999
but were divorced in 2010. Following the divorce, A maintained contact with C via text message. During
2016 and 2017, A sent C several unsolicited text messages of a sexually explicit nature. C asked A to stop
but the messages continued, leading C to make a formal complaint to the police about abuse C had
allegedly endured during her marriage to A. The prosecutions case was that A had had sexual intercourse
with C on three separate occasions without Cs consent. The f‌irst rape allegedly took place after A had
become drunk and aggressive. A went to bed and after waiting some time, C followed. It was at this point
that A, allegedly, climbed on top of C and had sexual intercourse with C without her consent. C con-
fronted A the next morning about the incident but C was told that she would not be believed and that
she should be careful about what she was implying. The second incident took place in similar circum-
stances after A had been drinking throughout the evening and thereafter having become abusive and
aggressive.
The defence argued that the rape allegations were false. It was accepted that A did drink alcohol but
when he did, this simply made him sleepy. A denied the abuse allegations but admitted to sending C text
messages only to maintain a post-marriage friendship. He said that he was ashamed about sending sexu-
ally explicit messages and that this did not ref‌lect his good character as a magistrate, head teacher and his
heavy involvement with church matters.
At trial, the defence applied under the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act),
s.41(3)(a) to question C about matters relating to her sexual orientation. According to the defence, the
basis upon which the questions were relevant were: (1) to suggest that C may have been conf‌licted
about her sexuality when married to A; (2) whether she had been rejected by her parents and whether
she feared rejection from her work colleagues about her possible sexual interest in women; (3)
whether she had made false allegations of rape against A as means to justify any change in sexual orienta-
tion and (4) (but which was not raised under the original s.41 application), whether Cs confused sexual
identity may have caused her to reassess consensual sexual intercourse as non-consensual.
The trial judge refused the application, concluding that there was no direct evidence at all of any
change of sexuality on the part of [c](at [34]) and in contravention of s.41(4) of the 1999 Act, that
its purpose or main purpose is to pursue a line of questioning which would impugn the credibility or
Case Note
The Journal of Criminal Law
2021, Vol. 85(6) 477479
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183211060169
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