A line too often crossed

Opinion that defence questioning of complainers in sexual assault cases designed to appeal to prejudices about women's behaviour should not be allowed

The Journal, April 2008, page 9

In a recent case where an accused was convicted of sexual assault against a 15 year old girl, a defence lawyer caused controversy by commenting that the girl had been scantily clad and may have been sexually active prior to the incident. Such comments remain commonplace in our courts, not only post-conviction but during the course of trials themselves.

Recent research commissioned by the Scottish Government found that almost 7 in 10 women will be asked about their sexual history or character during the course of a rape or attempted rape trial. This is despite the provisions of the Sexual Offences (Procedure and Evidence) (Scotland) Act, introduced in 2002, which were designed to tighten restrictions on the use of this type of evidence.

Questions to which a rape complainer can expect to be subjected range from when she lost her virginity, to whether her children all have the same father. The 2002 Act introduced a balancing process, where a judge or sheriff must consider whether the probative value of the evidence sought to be admitted is likely to outweigh any risk of prejudice to the proper administration of justice, including appropriate protection of the complainer’s dignity and privacy. The evaluation of the Act – and recent cases – raise serious doubts as to whether or not we have yet achieved a satisfactory balance in weighing the rights of the accused with the rights of complainers.

The evaluation also found that the Crown rarely objected to defence applications to introduce sexual history or character evidence, suggesting that a shared presumption exists of the relevance of this type of evidence. Too often, defence lawyers in sexual offence cases appear to rely on insinuation and innuendo about the behaviour of rape complainers. In one case, a young woman was made to hold up her underwear in court and read what was written on them: ‘little devil’. Ostensibly, this was to show that her underwear wasn’t damaged but it is clear that the real intention was to suggest that this was a girl who was unlikely not to have consented to sex.

This type of questioning is clearly designed to appeal to any prejudices jury members might hold about women’s behaviour: studies consistently find that attitudes which hold women to blame for rape through the way we drink, dress or behave are held by a significant proportion of our population. Women in rape trials find themselves judged against impossible (and arguably highly outdated) standards of behaviour.

The idea that men lack such control over their sexuality that they will be provoked beyond reason by a woman dressed in revealing clothing is both dangerous to women and insulting to men. Questioning about how a woman was dressed or her previous sexual history should have no place in our courts. This type of questioning is designed to distract the jury from what should be the real issue – did the woman consent to sex on the occasion in question?

The frequent and repeated use of sexual history and character evidence in Scottish sexual offence trials is concerning on a number of levels. It acts as a deterrent to women coming forward to report crimes of rape and sexual assault: women often tell Rape Crisis that the reason they are not reporting their experience to the police is that they are not willing to be “ripped to shreds” in court or have their past brought up. For women who do report and whose cases reach court, being asked about their sexual history or character in such a public forum can be incredibly humiliating and distressing. Finally, this evidence can be highly prejudicial in its impact on juries.

We have now legislated twice in Scotland on the issue of sexual history and character evidence, and rather than improving, the situation appears to be getting worse. In a recent Privy Council opinion, Baroness Hale of Richmond observed that a legal system which allows wide-ranging cross examination about the sexual history of a complainer, clearly aimed at prejudicing the jury against her, while prohibiting any attack upon the sexual history of the accused person, might one day be held to be incompatible with the European Convention on Human Rights.

There needs to be far greater debate about the point at which a defence strays from being one which is acceptably robust to one which treats complainers in an unacceptably degrading and at times inhumane way. Too often it seems to us in Rape Crisis that this point is crossed, and the consequences for rape complainers are significant.