Rape victims’ sexual history could no longer be used as evidence in court under new plans to tackle 'myths'

Currently, rape victims’ personal information - including therapy notes, sexual history, and past relationships - can be used against them in court.
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A rape victim’s sexual history could be blocked from being used as evidence in court under new plans to ensure “pernicious” myths and misconceptions do not impact a trial’s outcome.

In a review published on Tuesday (23 May), the Law Commission has argued that legislative change is needed to tackle low conviction rates and address the high number of victims who drop out of cases. It suggested that there should be a bespoke set of laws for sexual offences cases which govern access by police and lawyers to a complainant’s personal records - including therapy notes, sexual history, and past relationships.

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Currently, all of this information can be used in trials, which the Law Commission said subjects victims “to unnecessarily intrusive and humiliating questioning, and reliance on myths and misconceptions about their credibility, consent, and moral worthiness.” It has suggested then, modelled on the criminal code used in Canada, that judges should be empowered to block evidence about a rape victim if it risks “perpetuating” false myths.

This could include a victim’s sexual history being used to suggest they are not “believable”, or a past relationship being used to suggest they are likely to have consented to sex with the alleged rapist - “misconceptions” the Law Commission warned have begun to “filter through the breadth and depth of the criminal justice system”. A study of Independent Sexual Violence Advisers (ISVAs) referenced in the paper found that 75% of them had witnessed victims being interrogated about their sexual histories.

*Rebecca, a rape victim with experience of the legal process, told NationalWorld that the current rules around personal information have had a “detrimental” impact on her healing and recovery. She explained: “I can’t talk to my ISVA because if I discuss my abuse with her then she can become a witness. So I almost feel like I don’t want therapy to deal with my trauma, as I’m just waiting for everything I say to be used against me. It’s really impacted my mental health.”

According to the review, which was commissioned by the Ministry of Justice, there would be some exceptions to new rules around personal information - such as when “a particular line of questioning could be relevant in one case but irrelevant in another”.

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The Law Commission explained: “For example, if a complainant was asked why they waited for two weeks to report an offence to the police, that would be irrelevant in most cases. Evidence shows that lots of people delay reporting an offence. It doesn’t affect whether the report is true or not.

“However, sometimes a question like that could be relevant. For example, if the defendant says that the complainant has made up the allegation because they were angry after a fight. [If that is when the complainant made the allegation], the defendant’s barrister could ask why the complainant waited for two weeks to go to the police.”

But as part of the new rules, if this sort of questioning is to be used, it would have to be approved by a judge beforehand. Judges would also be required to provide written reasons if they decided to allow a victim’s previous sexual behaviour or relationship history to be included as evidence.

The Law Commission’s other proposals, which it said aim to improve the handling of rape and sexual assault trials, include giving victims automatic rights to measures which may help ease the trauma of giving evidence. One example could be allowing a victim to appear via a live link in the courtroom, or allowing them to answer questions in private (with an exemption for press access).

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There also should be independent legal advice to reduce the prejudice of a jury, the Law Commission added, such as by having a psychological expert explain the “complex” physical and emotional responses to sexual violence.

The aim would be to reduce the impact that myths and misconceptions have on a trial’s outcome, the consultation paper explained, listing the beliefs that rape “will always be physically or verbally resisted,” “will always be reported promptly”, “will always involve force”, and “is most commonly perpetrated by a stranger” as examples.

*A pseudonym has been used to protect the victim’s identity.

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