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
| DOI | 10.1177/00220183211060169 |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
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
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 prosecution’s case was that A had had sexual intercourse
with C on three separate occasions without C’s 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 C’s 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) 477–479
© The Author(s) 2021
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DOI: 10.1177/00220183211060169
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