Victims & Witnesses
Rape Victims to be spared cross-examination on sexual history
Home Office Minister, Charles Clarke has announced that victims of rape and other sexual offences will be spared cross-examination in court on their previous sexual history unless it is absolutely relevant to the case. This change results from the implementation of section 41 of the Youth Justice and Criminal Evidence Act 1999 on 4 December 2000, which places tight restrictions on evidence or questioning about a complainant's past sexual behaviour.
Evidence of previous sexual behaviour can only be used with the leave of the court. However, under the new act, courts may now only give this if:
the evidence or questions rebut evidence led by the prosecution; or
the evidence or questions relate to a relevant issue at trial and that issue is not one of consent; or
if the issue is one of consent, the behaviour to which they relate is either:
alleged to have taken place at or about the same time as the alleged offence; or
is so similar to the complainant's alleged behaviour at that time that it cannot reasonably be explained as a coincidence.
The court must also be satisfied that to refuse leave would result in the jury, or the court, reaching an unsafe conclusion on a relevant issue at trial. The courts will also refuse permission if they believe that the real main aim of evidence claimed to relate to a relevant issue is simply to undermine the complainant's credibility.
Section 41 of the 1999 Act replaces section 2 of the Sexual Offences (Amendment) Act 1976. The new legislation offers complainants in sexual offence cases better protection against unnecessary cross-examination on their sexual behaviour. It provides a more structured approach to decision-taking and sets out more clearly when evidence of previous sexual history can be admitted in rape cases. It also extends this approach to a wide range of sexual offences.
Other measures in the 1999 Act, to protect victims of rape and other sexual offences from being cross examined by the defendant in person in court, were implemented on 4 September 2000.
Both measures were included in the recommendations for the protection of vulnerable or intimidated witnesses in the 'Speaking Up For Justice' report published in 1998.
Sexual Offences Review
The Government issued a report of the Sex Offences Review for consultation in July 2000. 'Setting the Boundaries: Reforming the Law on Sex recommends that consent should be redefined as "free agreement" and that the law should set out a non-exhaustive list of circumstances where consent was not present. The closing date for comments was 1 March 2001. A review of the consultation documents has been published on the Home Office Website and a Sexual Offences Bill was laid before Parliament on 28 January 2003, and received its third reading on 17 June 2003.
Last update: 12/09/03