Admissibility of Sexual History Evidence in Rape Cases: Legislation and Case Law Review, Assignments of Law of Evidence

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1. "Regardless of the nature of the offences or the setting of the trial, the prosecution must show the defendant's guilt. Any attempt to undermine this principle is unacceptable."^1 Viscount Sankey created the presumption of innocence (POI) in Woolmington v DPP [1935]^2. The prosecution bears a legal burden (LB), whereas the defendant has an evidential burden (EB).^3 LB is the prosecution's duty to establish the defendant's guilt beyond reasonable doubt by proving Actus Reus, Mens rea, and absence of defence, whereas EB is the defendant's duty to raise a defence but not prove it. According to this notion, a person is presumed innocent until proven guilty, therefore favouring a criminal suspect prevents the conviction of innocent individuals.^4 Bernard v. France [1998]^5 states that the POI is essential to a fair and just criminal trial. Furthermore, there are also some of the exceptions against the Golden Threat Rule laid down by Viscount Sankey.^6 The European Court of Human Rights (ECHR) decided that Article 6 did not describe the rule being absolute. In choosing where to place the burden of proof (BOP), lawyers must specify precise criteria. Ian Dennis outlined 6 rules for reversing LB on criminal defendants. We'll evaluate these principles' usefulness. Insanity is the sole exception to common law’s presumption of innocent, and LB place on defendant to prove insanity. M’Naghten’s case^7 introduce this principle. The defendant presumes sane until proven contrary.^8 In Robertson (1968)^9 said the prosecution must prove insanity beyond reasonable doubt.^10 R v Carr-Briant (1943)^11 established that the if (^1) Ian Dennis, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ [2005] Crim LR 901 (^2) Woolmington v DPP [1935] AC 462 (^3) THE FREE DICTIONARY BY FARLEX, ‘Burden of Proof’, < https://legal-dictionary.thefreedictionary.com/Legal+burden > accessed 26 October 2022 (^4) Cambridge University Press , ‘Law and History Review’ , Volume 23, Issue 1, Spring 2005, pp. 133 - 171 (^5) Bernard v France [1998] ECHR 31, 22885 (^6) Dawnettasimmons, ‘Criminal Law. THe Golden Thread rule’, < https://dawnettasimmons.blogspot.com/2016/07/criminal-law-golden-thread-rule.html > accessed 26 October 2022 (^7) R v M’Naghten (1843) 8 E.R. 718 (^8) EXCHANGE CHAMBERS, ‘M’Naghten Rules – defence of insanity’, < https://www.exchangechambers.co.uk/ian-harris-mnaghten-rules/ > 27 October 2022 (^9) R v Robertson [1968] 52 Cr App R 690 (^10) ICLR, ‘Regina v Robertson’, < https://www.iclr.co.uk/document/1961004032/casereport_77794/html > accessed 26 October 2022 (^11) R v Carr-Briant [1943] 1 KB 607

defendant pleaded insanity, he must bear BOP in balanced of probabilities.^12 H v UK [1990]^13 , since it involved insanity, the ECHR held that the exception did not violate Article 6(2)^14. Express reversal is when the statue place LB on the defendant. S2 Prevention of Corruption Act 1916^15 sets the BOP on specific matter on defendant. Prevention of Crime Act 1953 s1(1)^16 clearly state, “The BOP is on the person who acts without authority or reasonable excuse”. Also, s28(2) Misuse of Drugs Act (MDA) 1971^17 requires the defendant to prove he neither knew nor suspected nor had reasonable grounds to suspect a specific fact claimed by prosecution. In Gatland v Metropolitan Commissioner^18 , the courts applied s.140 of the Highway Act 195919 , a precursor to s101 Magistrates Courts Act(MCA) 1980 , which stated that a person with no authority or reasonable excuse is not permitted to leave or throw anything onto highway, thereby placing LB on defendant to prove innocent or authority.^20 In the case of Nagy v Weston^21 , however, the judges resorted to s101 , which specifies that the act of blocking a roadway without permission or excuse is considered criminal. Thus, the prosecution must establish that the defendant had neither authority nor excuse. Therefore, s101 is not valid provision for determining whether the defendant has the BOP. In trials, on indictment, nevertheless, s101 cannot be applied. There are, nonetheless, laws that allow for indictable offences where it impliedly lay the burden on the defendant, given that stated terms in statue must be analysed rationally. In the matter of R v Edward^22 , s160(1)(a) of Licensing Act of 1964^23 was discussed. Where the antecedent of the statue stipulates that the sale of alcoholic beverages without a license illegal. As a result, Mr. Edward had to prove he has a license, while the prosecution had to prove that he did not. (^12) Consumer Crime Cases, ‘Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 WLR 817 - S 172 RTA - HRA.’, < https://www.consumercrime.co.uk/site.aspx?i=ca2624 > accessed 27 October 2022 (^13) H v UK [1990], unreported (^14) ECHR. Article 6(2) (^15) Prevention of Corruption Act 1916, section 2 (^16) Prevention of Crime Act 1953, section 1(1) (^17) Misuse of Drugs Act 1971, section 28(2) (^18) Gatland v Metropolitan Commissioner 2 All ER 100 QB (^19) Highway Act 1959, section 140 (^20) Divisional Court Cases. (1968). ‘ The Journal of Criminal Law’ , 32(2), 151–164. < https://doi.org/10.1177/002201836803200213 > accessed 27 October 2022 (^21) Nagy v Weston [1965] 1 All ER 78 (^22) R v Edward [1975] QB 27 (^23) Licensing Act 1964, section 160(1)(a)

Before the Human Rights Act (HRA) 1998^24 , courts upheld all reversal LB. Now, implied and express burdens must be evaluated under the HRA and Article 6(2) of the European Convention on Human Rights (ECHR). Article 23^25 states that a defendant is innocent unless proven guilty. If a statute imposes LB on a defendant, does it violate Article 6(2) and HRA 1998? Article 6(2) was expressed in absolute terms, but it does not impose or conceal the restriction of reverse burden terms, as demonstrated in Salabiaku v France^26 , in which the European Court determined that imposing LB on the defendant did not violate his rights. The law was restricted to reasonable limits while ensuring rights of self-defence. International courts and national authorities utilize the margin of appreciation to determine local conditions and requirements. Convention is a principle, not a rule, hence it's rarely implemented.^27 In R v DPP, ex parte Kebeline^28 detailed the fundamental factors that must be considered to strike the balance: the quantity that Crown must prove before the burden shifts to the defendant, the difficulty of disproving an essential element of the crime, and the illogicality of the defendant relying solely on special defenses or exceptions. Also considered are the nature of put-on defendant, the challenge of proving guilt, and the defendant’s mental capacity. Lastly, the magnitude of the danger at the time the provision was enacted. Lord Hope subsequently articulated the test of proportionality in Brown v Stott^29 , which holds that an objective must exist and be attained. In addition to stating the fundamental rights of the person and public interest must be balanced, he said that laying the LB on the defendant is much more significant than a BOP. This is obvious seen in R v Lambert^30 in conjunction with HRA 1998 , where it was demonstrated that under s28(2) MDA 1971^31 , while considering s3(1) HRA 1998^32 , only an EB and not a LB is placed. The HOL ruled that it does not violate Article 6(2) , but rather demonstrates the removal of the placing of LB on defendants. In Lambert , it was (^24) Human Rights Act 1998 (^25) European Convention on Human Rights, Article 23 (^26) Salabiaku v France (1988) EHRR 379 (^27) Council of Europe, ‘EUROPEAN ON HUMAN RIGHTS Selected Judgement and Decisions’, < https://rm.coe.int/echr-selected-judgments-decisions-en/16807828fd > accessed 15 November 2022 (^28) R v DPP, ex parte Kebeline [2000] 2 AC 326 (^29) Brown v. Scott, 140 Md. 258, 117 A. 114 (^30) R v Lambert [2002] 2 AC 545 (^31) Misuse of Drugs Act 1971, section 28(2) (^32) Human Rights Act 1998, section 3

determined that placing the BOP on the defendant with respect to the fundamental element of the offence would violate Article 6(2) ; thus, the offence is severe and bears the severe maximum sentence. This is also seen in Davis v Health and Safety Executive^33. In R v Johnstone^34 , Lord Nicholls held that Parliament was responsible for determining the LB; thus, the courts may deviate from this if Parliament’s judgement was ineffectual in resolving the case and gave inadequate respect to the presumption of innocent. As observed by Pill LJ in the case of L v DPP^35 , the application of S4 of HRA^36 as a defence or reversal was incompatible with Article 6 says that primary and secondary legislation must be interpreted and applied in accordance with Convention rights. Ian Dennis, a popular professor developed The Six Cardinal Principles to help determine whether a person’s burden is conformity with the ECHR. Easy of proof and peculiar knowledge is one of the rules. These are two separate points. If a defendant can bear a LB better than prosecution, the burden should be flipped and placed on the defendant. This was evident in Lambert’s^37 case, if the defendant had peculiar knowledge but was unable to challenge the sentence and injustice of his conviction. Ex-parte Kebeline^38 and R v Johnstone utilized the test of proportionality(TOP) to distinguish between ease of proof and peculiar knowledge. R v Makuwa^39 evaluated social policy and found it difficult for the prosecution to prove, thus the burden was reversed. In Foye case^40 , justification for the reversal burden for the murder of a defendant based on the "practicality principle" of who might find it easier to remove the burden. This contradicts the "moral blameworthiness" presumption.^41 Such reversals must focus on whether the imposed burden is proportionate, not whether prosecution proving is difficult. The maximum punishment regulation is also important. In typical circumstances, the presumption of innocent override the proportionate severity of crime, avoiding severe punishments on the defendant who cannot prove his innocent. Lord Steyn said in (^33) Davis v Health and Safety Executive [2002] EWCA Crim 2949 (^34) R v Johnstone [2003] 3 All ER 884 (^35) L v DPP (2002) 166 JP 113 (^36) Human Rights Act 1998, section 4 (^37) R v Lambert [2002] 2 AC 545 (^38) R v DPP, ex parte Kebeline [2000] 2 AC 326 (^39) R v Makuwa [2006] EWCA Crim 175 (^40) R v Foye [2013] EWCA Crim 475 (^41) Mental Health Law Online, ‘Brief Summary’, < https://www.mentalhealthlaw.co.uk/Category:Brief_summary

accessed 31 October 2022

Lambert’s^42 case that life imprisonment is excessively harsh, and that the presumption is a more essential factor than the reversal of burden. In R v Johnstone^43 , the courts were enabled to reverse the burden, which was 10 years imprisonment and should have been an EB. His Lordship indicated the more severe the penalty, the more burden should place on defendant unsubstantiated. In this case, the defendant’s LB would have justified regardless of the severity of the penalty if the public’s health and safety was at risk. Sheldrake v DPP^44 affirmed the burden reversal after 6 months, the HOL decides defendant’s penalty was proportionate given its modest severe. Still, it must be considered while assessing the proportionality of reverse onus, the more severe the penalty, the more imposing reverse onus should be before inflicting it on defendant. Furthermore, for classify the offences. Sheldrake's^45 case acknowledged both mala in se and mala prohibita. If the crime is minor, it will be simpler to justify interfering with the presumption of innocent. In Lambert's^46 case, Lord Clyde agreed that if the offences may be characterised as mala prohibita, then the reversal of burden imposed on the defendant would be compatible with Article6. This was utilised in Davies v Health and Safety Executives^47 , a regulatory offence. The courts ruled that the burden reversal is proportional to Article6 , and the defendant is simply fined. This approach of classifying offences cannot support the reversal of burden since there is no obvious border between the two. If regulatory offences are predicated on punishments, as in Davies's^48 case, issues may emerge since regulatory offences now involve imprisonment punishment. Despite being a regulatory statute, R v Chargot^49 places the LB on the defendant, who was sentenced to jail and a limitless fine. This shows there's no obvious difference. The offences' moral aspects make classification difficult. Since there is no precise classification standard, the court should discern parliament's intention. The judge's decision may contradict, impacting the reversal or burden. (^42) R v Lambert [2002] 2 AC 545 (^43) R v Johnstone [2003] 3 All ER 884 (^44) Sheldrake v The Director of Public Prosecutions [2004] UKHL 43 (^45) ibid (^46) R v Lambert [2002] 2 AC 545 (^47) Davis v Health and Safety Executive [2002] EWCA Crim 2949 (^48) Ibid (^49) R v Chargot and Others [2008] UKHL 73

In keeping the principle of judicial deference, the court must respect the Parliament’s intention regarding the express reversal. In R v Johnstone^50 , Parliament expressly stated the reverse onus of defence while enacting the statue. Lord Nicholls noted in this case that “it is Parliament’s role to impose a statutory defence and legal burden on defendant, thus the court should only disagree if it is inadequate to the presumption of innocence. In AG Reference (No.1 2004) said that there must be a solid reason why the statue reversed the legal burden on defendant. In Sheldrake v DPP^51 put doubt on Lord Woolf’s remark, saying such approach would lead to little discussion of whether reversal burden is proportionate to the presumption of innocent. With judge’s differing opinions, the question of judicial deference is uncertain. The POI is fair trial right under Article 6 is based on fundamental presumption. To prevent unjust and wrongful convictions, courts must justify the LB on defendant. Ian Dennis quotes Robert and Zuckerman on the POI as a legal criterion to evaluate when unjust and wrongful conviction may be avoided. This presumption can operate as a protection to prevent miscarriages of justice and as a tool to avoid unfavorable outcome. In AG’s Reference (No. 2002)^52 , the crime was too wide for defendant to disprove. Lord Bingham identifies the danger of wrongfully convicting the defendant and argues that it is most hard for defendant to prove the element of the offence, reversing the burden on defendant. The courts must uphold this essential presumption. POI may only be brought where the Act might cause to wrongful conviction. The final rule is the elements of criminal liabilities which includes offences and defences. The prosecution must prove every element of crime. As noted in Attorney-General for Hong Kong v Lee Kwong Kut^53 , the reversal burden on defendant is easier to justify and accepted. The courts should distinguish between offences and defences. In Lambert’s case^54 , this was mentioned, but the Lordship disagree with it. Lord Hope, who created this principle was disputed by Lord Steyn, who said the difference between offence and defence is a drafting method. He recommends concentrating on ‘moral blameworthiness’ in Edward’s^55 (^50) R v Johnstone [2003] 3 All ER 884 (^51) Sheldrake v DPP [2004] UKHL 43 (^52) Attorney General’s Reference (No.4 of 2002) [2003] EWCA Crim 762 (^53) Attorney-General for Hong Kong v Lee Kwong-kut [1993] AC 951 (^54) R v Lambert [2002] 2 AC 545 (^55) R v Edward [1975] QB 27

defended. Lambert’s case^56 and Attorney General’s Reference (No 4 2002) noted that revealing the “gravamen of the crime” would make differentiating the offence and defence complicated. Thus, the burden should impose the prosecution not the defendant. This provision doesn’t appear to help the courts evaluate whether reversal of burden is compatible with Article 6(2). Despite being useful in assisting courts explain the reverse onus on defendant, Ian Dennis’ Six Cardinal Principles have weakness on certain principle came up. Such as, the notion of separating offence and defence is one of the most contentious. The six cardinal elements have helped explain the law in justifying whether the defendant’s reversal burden is proportionate or not. Ian Dennis’s principle are simply a guideline, and courts may choose whether to apply them to attain justice. In conclusion, it’s been agreed that some LB are reverse on defendant, but it must be consistent with POI under Article 6(2) by adopting the proportionality test outlined above, and if the reverse burden is justified, reversing would not be an issue. Despite this, it must be underlined that the issue of reverse burden and its consistency with Article 6(2) is “ultimately a matter of judgement” for the courts. (2151 words) (^56) R v Lambert [2002] 2 AC 545

Bibliography

15. Gatland v Metropolitan Commissioner 2 All ER 100 QB

• 1. R v Edward [1975] QB Cases
• 2. R v Lambert [2002] 2 AC
• 3. Attorney-General for Hong Kong v Lee Kwong-kut [1993] AC
• 4. R v Johnstone [2003] 3 All ER
• 5. R v Chargot and Others [2008] UKHL
• 6. Davis v Health and Safety Executive [2002] EWCA Crim
• 7. Sheldrake v The Director of Public Prosecutions [2004] UKHL
• 8. R v DPP, ex parte Kebeline [2000] 2 AC
• 9. R v Makuwa [2006] EWCA Crim
• 10. R v Foye [2013] EWCA Crim
• 11. L v DPP (2002) 166 JP
• 12. Brown v. Scott, 140 Md. 258, 117 A.
• 13. Salabiaku v France (1988) EHRR
• 14. Nagy v Weston [1965] 1 All ER
• 17. R v Carr-Briant [1943] 1 KB 16) H v UK [1990], unreported
• 18. R v Robertson [1968] 52 Cr App R
• 19. R v M’Naghten (1843) 8 E.R.
• 20. Bernard v France [1998] ECHR 31,
• 21. Woolmington v DPP [1935] AC

22. Attorney General’s Reference (No.4 of 2002) [2003] EWCA Crim 762 Legislation
23. Misuse of Drugs Act 1971
24. Human Rights Act 1998
25. Licensing Act 1964
26. Highway Act 1959
27. Prevention of Corruption Act 1916
28. Prevention of Crime Act 1953 Journals/ Articles
29. Ian Dennis, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ [2005] Crim LR 901 Websites
30. Mental Health Law Online, ‘Brief Summary’, < https://www.mentalhealthlaw.co.uk/Category:Brief_summary > accessed 31 October 2022
31. Council of Europe, ‘EUROPEAN ON HUMAN RIGHTS Selected Judgement and Decisions’, < https://rm.coe.int/echr-selected-judgments-decisions-en/16807828fd > accessed 15 November 2022
32. Divisional Court Cases. (1968). ‘The Journal of Criminal Law’, 32(2), 151–164. < https://doi.org/10.1177/002201836803200213 > accessed 27 October 2022
33. Consumer Crime Cases, ‘Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 WLR 817

• S 172 RTA - HRA.’, < https://www.consumercrime.co.uk/site.aspx?i=ca2624 > accessed 27 October 2022

5. ICLR, ‘Regina v Robertson’, < https://www.iclr.co.uk/document/1961004032/casereport_77794/html > accessed 26 October 2022

6. EXCHANGE CHAMBERS, ‘M’Naghten Rules – defence of insanity’, < https://www.exchangechambers.co.uk/ian-harris-mnaghten-rules/ > 27 October 2022
7. Dawnettasimmons, ‘Criminal Law. THe Golden Thread rule’, < https://dawnettasimmons.blogspot.com/2016/07/criminal-law-golden-thread-rule.html > accessed 26 October 2022
8. THE FREE DICTIONARY BY FARLEX, ‘Burden of Proof’, < https://legal- dictionary.thefreedictionary.com/Legal+burden > accessed 26 October 2022

2. The admissibility of sexual history evidence in rape proceedings is addressed in this article. It focuses on evidence that relates to persons other than the accused, sometimes known as third-party evidence. In rape prosecutions, sexual history with other parties is hardly admissible as evidence of consent. Lord Clyde in R v A^57 , stated that although certain evidence of previous sexual behaviour with the defendant could be relevant to a question of consent, he did not "consider which evidence of her behaviour with other men ought to be admitted as relevant for that purpose." These types of judicial pronouncements are more prevalent. Lady Hale in R v C^58 said It's impossible to conceive a more person and situation- specific activity than sexuality. Nobody consents to sex in general. Consent is given having sex at this time and place. This logic shows that third-party consent is irrelevant to defendant consent. The Heilbron Report^59 was emphasised that third-party sexual history evidence is irrelevant when the question of credibility is addressed and when the case is presented to the jury an example would be abusive relationship.^60 However, some maintain its relation to consent. In the legislative arguments leading to the Youth Justice and Criminal Evidence Act (YJCEA) 1999^61 , Lord Bingham believed that such evidence or issues relating to men other than defendant were significant to the ‘truth of the allegation made’ and the ‘defence of consent’ and were logically justified.^62 This highlights the persistence of some viewpoints about sexual history evidence, its relevance, and its recalls. Canadian Justice L'Heureux-cautionary Dubé's note, regardless of definition, any relevant decision would be based on the judge's expertise, common sense, and reasoning. Stereotypes and myths impact experience, common sense, and reasoning. This field of law employs stereotypes to determine relevance.^63 The application of sexual history evidence to infer consent or dispute credibility is controversial. In terms of consent, sexual history evidence assumes that consent from the past is relevant to the event at issue. This contradicts the notion that consent is situation- and individual-specific. Regarding sexual activity with the defendant, it thinks that consent may be inferred from past consent. Lord Steyn remarked on R v A, a victim and defendant's (^57) R v A (No.2) [2001] UKHL 25 (^58) R V C [2009] UKHL 42 (^59) Heilbron Committee, ‘Report of the Advisory Group on the Law of Rape’, Cmnd 6352 (HM Government, 1975) (^60) Report of the Advisory Group on the Law of Rape, Cmnd 6352 (1975). (^61) Youth Justice Act and Criminal evidence 1999 (^62) ibid (^63) R v Seaboyer [1991] 2 SCR 577

past sexual connection may be relevant to consent. This is prospective evidence that may indicate the defendant's state of mind.^64 He thought defendant evidence may be relevant to consent, but he disapproved admissible of third-party evidence.^65 Analysing R v A in a similar manner, Di Birch believes that the ‘defendant’s past sexual behaviour with a renders her non consent very improbable.’^66 This not only suggests that past consent might be relevant, but also implies that it increases the likelihood of consent’.^67 Consider this approach. Canadian law prohibits such reasoning since it's based on "two myths." This approach admits that consent may be given several times. Assuming consent may be freely granted based on prior behaviour doesn't account for coercive and abusive relationships that may lead to sexual relations. Such an assumption ignores the fact that the defendant's consent to sexual intercourse once does not indicate future consent. Similar to implied consent in marriage, assuming someone would consent to sexual behaviour if they've done it before. Even if such evidence is admissible or relevant, it may be detrimental to the case and shouldn't be accepted. Despite the conceptual and jurisprudential growth of the law on sexual freedom, it has been challenged by the Evans decision, which uses past third-party sexual relationship to infer consent. Sexual history undermines the victim's credibility. One researcher suggested focusing moral over probative credibility.^68 Moral credibility refers to the assumption that the claimant is morally inferior and unworthy of the court's sympathies or does not give appropriate moral grounds for punishing the accused.^69 'Sexual character' is inferred by innuendo, comparisons to women's life, personal habits, and clothing, making it difficult to regulate or reject. Sexual character evidence encourages moral judgments about alleged victims, which may affect credibility and responsibility. Even if sexual history evidence is restricted, ‘sexual character' (^64) North East Law Review, ‘R v A (No 2) AND THE PROTECTION OF COMPLAINANTS’ DIGNITY, PRIVACY AND SEXUAL FREEDOM’ (2015) 3 NELR (^65) Matt James Thomason, ‘Previous Sexual History Evidence’ (2018) 22 The international Journal of Evidence & Proof 342- (^66) D. Birch, 'Rethinking Sexual History Evidence: Proposals for Fairer Trials' (2002) Criminal Law Review 531 at 542 (^67) ibid (^68) Birch, D. ‘ Rethinking sexual history evidence: Proposals for fairer trials’ (2002) Criminal law review. 531-553. (^69) Aileen McColgan, 'Common Law and the Relevance of Sexual History Evidence' (1996) 16 OJLS 275.

evidence might be admissible, with negative consequences.^70 In Darrach^71 , affirmed Canadian prohibitions upon sexual history evidence, ruling that the defendant is not entitled to procedures that "distort the truth-seeking purpose of a trial by admitting irrelevant and prejudicial material at trial."^72 In R v A , Lord Hutton said the victim's sexual history might distract the jury. Evidence that is irrelevant and prejudicial, particularly material which may mislead or confuse the jury, must be eliminated. Multiple analyses in many jurisdictions have shown the potentially erroneous implications of sexual history evidence, notably that juries consider victims as less credible and more likely to have consented.^73 It seems jurors focus on the ‘respectability' of alleged victims with evidence of prior sexual activity or other 'risk-taking' behaviours, diminishing their ‘respectability' and credibility. J. Temkin shows that if the victim is portrayed as a "slut," an acquittal is possible.^74 Generally, justifying restrictions on sexual history evidence is inadmissible. Case law in numerous jurisdictions has subsequently challenged the “two myths”. Various legislative restrictions the admissibility of sexual history evidence. Despite these provisions to limit such evidence, substantial controversy remains over their applicability.^75 Inference about women’s sexuality and credibility that sexually active women are less credibility as witnesses and highly likely to consent. “Twin myths” that sexual evidence restricts aim to dispel. Justice McLachlin remarked in R v Seaboyer^76 that these assumptions were founded myths that unrighteous women were more likely to consent to intercourse and were less credible. Both misconceptions are debunked. “A woman’s previous sexual activity doesn’t improve the likelihood that she agreed to sexual intercourse with defendant. She’s not a liar.”^77 In this light, it’s easy to see why decades of study and witness testimony have raised concerns about rape victim’s humiliating and terrible trials. Phrases like ‘second rape’ or (^70) Michele Burman, ‘Evidencing sexual assault: women in the witness box’ (2009) Probation Journal, 56 (4). pp. 379-398. (^71) R v Darrach [2000] 2 SCR 443 (^72) R v Darrach [2000] 2 SCR 443, para. 24 (^73) Kelly, Temkin, and Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials (Home Office Report: London, 2006). (^74) J. Temkin, ‘Prosecuting and Defending Rape: Perspective from the Bar’ (2000) 27 Journal of Law and Society 219 at 234 (^75) Jennifer Temkin, ‘Regulating Sexual History Evidence- The Limits of Discretionary Legislation” (1984) 33 International and Comparative Law Quarterly 942- (^76) R v Seaboyer [1991] 2 SCR 577 (^77) ibid

‘judicial rape’ have grown prevalent owing to victims’ harsh treatment in court.^78 Thus, although providing evidence and undergoing cross-examination will always be difficult, the research supports maintaining practices that go beyond required questions and become aggressive, harassing, and humiliating. Restricting sexual history evidence to highly probative information reduces the humiliating and traumatic nature of cross-examination in rape cases and protects a victim’s right to privacy. Reduce humiliation and anguish to help victims offer their best evidence. A recent analysis of rape victims’ experience indicated that the evidence-giving procedure made them feel anxious before and during trial.^79 Fear and actuality of needless cross-examination on prejudiced information will interfere with victim’s capacity to deliver evidence in the best way for the court and jury. Restrictions on sexual history evidence and procedural protections may assist secure the best evidence from victims, which is required and can improve trial results. Many rape cases never reach court. Fear of the trial process is a fundamental barrier to reporting crimes to police and continuing prosecutions.^80 Therefore, effective restrictions on sexual history evidence are crucial for persuading victims to report and supporting prosecutions. As explained above, Heilbron Report and four restrictions recommended strict restrictions on the use of third-party sexual history evidence in rape trials, but Sexual Offences Act 197681 failed to apply the same principles. In this way, it granted the judge a substantial discretion to restrict the application of such evidence even when judicial discretion led to demands for reform. The 1976 Act accomplished nothing to improve court practice, leading to continued reform pressure.^82 In the late 90’s, reform was needed, leading to S41 to 43 of YJCEA^83. Section 41(1) provides except with court leave, no evidence concerning the defendant is admissible at trial, and issues regarding history might be cross-examined. These restrictions apply to the defence, which may introduce evidence if it meets one of the four (^78) S. Lees, ‘Judicial Rape’ (1993) 16 Women’s Studies International Forum 11; S. Payne, Rape: The Victim Experience Review (Home Office: London, 2009) (^79) ibid (^80) Kelly, Temkin, and Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials (Home Office Report: London, 2006) 69 (^81) Sexual Offences Act 1976 (^82) V. Baird, ‘Changes to Section 2 of Sexual Offences Act 1976’ (1999) 39 Medicine Science and the Law 198 (^83) Youth Justice and Criminal Evidence Act 1999

gates. Applies to evidence of the defendant and third parties’ sexual history and does not provide judge’s discretion to restrict admission of such evidence.^84 This subsection’s applicability has been challenged since its establishment. According to the 1975 report leading to the Act, sexual history may be admissible where earlier behaviour is strikingly comparable as a coincidence.^85 Relevant case law is needed to understand the controversy surrounding this provision.^86 Lord Clyde argued in R v A that the relationship evidence should exclude similarities. The exception only applies to the defendant's sexual history, not third parties, and the behaviour need not be unusual or strange. He also stated victim’s prior behaviour must be so common that it can't be a coincidence. Crow counsel contended that the alleged sexual behaviour was common and not consent-worthy. Although it is difficult to definitive people's sexual habits with consistency, evidence supports the position's popularity. Evans^87 claimed language is also common in mainstream pornography found 1259 results of ‘f.k me harder’ and 6964 videos tagged ‘doggy’ position. According to investigation, 51% of respondents in Wales and 57% in Huffington Post said their favourite sex position was ‘doggy style’. If required behaviour isn't a coincidence, there must be a connection, plan, or pattern. So, an unusual connection or pattern suggests the behaviour isn't coincidental. If we're looking for behaviour that can't be a coincidence but don't have to prove anything unusual, it's hard to verify. Evans is a case in point. COA says Evans' common behaviour fulfils the exception. Regularity indicates coincidence. In Evans , the more common the activities and the more sexual partners the victims had, the more probable any prior sexual conduct would be regarded "similar." The COA acknowledges that sexual behaviour with third parties should be unusual, but Evans is a rare case, not 'floodgates.' This exception infringes S41 by admitting evidence for a reasonable belief defence that is ordinarily forbidden. If consent is person-specific, it's unclear how other parties' sexual behaviour may affect a defendant's belief in consent. Can consent be predicated on a victim's sexual activity with another? Barristers and judges criticised S41 as "extremely (^84) YJCEA 1999, section 41(1) (^85) YJCEA 1999, section 41(3)(c) (^86) ibid (^87) R v Ched Evans [2016] EWCA Crim 452

broad" and "illogical."^88 Lord Clyde was open to admitting evidence of sexual activity with the accused in certain circumstances, but not with others: 'That evidence of sexual behaviour with others than the defendant should be admitted seems questionable'. Many jurisdictions lack a similarity wide exception.^89 Evans provided evidence might also be relevant to defence of believe in consent.^90 Third is for prove of sexual behaviour ‘at or about the same time’, s41(3)b as the alleged sexual offence. Parliament proposed the time limit be 24 hours, and HOL in R v A, sexual behaviour was 3 weeks earlier thus refused to apply the provision narrowly.^91 In Mukadi^92 , sexual conduct involving the third parties was admitted as evidence. It highlights the difficulty with the exception not needing a significant relationship to the actions at issue, but also the wider problem of third-party sexual history evidence being relevant to consent. After Evans case, S41 application made great advances. The Prisons and Courts Bill intends to restrict the use of sexual history evidence.^93 The Canadian provisions on sexual history evidence with explicit assertions of principle. The Criminal Code specifies that sexual history evidence cannot be used to establish the “twin myths” that the complainant consent or is less credible due to their sexual activity.^94 Such reform would modify application S41 of English Law. This reform would eliminate evidence of third-party sexual history used to infer consent. Legislation should clarify the rationale for restricting sexual history evidence and increase the threshold for admitting potentially prejudice and misleading facts. Canadian law states that evidence may only be allowed if its probative value is not exceeded by the risk of prejudice to the administration of justice.^95 This is crucial since the threshold are high. This section emphasises that admitting such evidence risks the effective administration of justice, (^88) Kelly, Temkin, and Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials (Home Office Report: London, 2006) 59 (^89) J. Temkin, ‘Sexual History Evidence- Beware the Backlash’ (2003) Criminal Law Review 217 (^90) n31, para. (^91) n1, para. 40 (^92) R v Mukadi [2003] EWCA Crim 3765 (^93) Liz Saville-Roberts MP, ‘Sexual Offences (Amendment) Bill (HC Bill 137). < https://publications.parliament.uk/pa/bills/cbill/2016-2017/0137/cbill_2016-20170137_en_2.htm#l1g1 > accessed 21 November 2022 (^94) Criminal Code of Canada 1985, section 276(1) (^95) Criminal Code of Canada 1985, section 276(2)(c)

not simply the complainant’s privacy and dignity. Properly recognising and using such a provision might let judge adopt more forceful approach without fear of appeals. As indicated above, there is concern that sexual history evidence is admitted supporting reasonable belief in consent, even when actual consent is rejected. Another reform is to amend S42(1)(b) so that believe in consent is no longer considered “not an issue of consent,” especially for third party. The current similarity exception should be eliminated due of its irrelevance and prejudicial implications. If the evidence is sufficiently probative and relevant to the trial, it will be rebuttal evidence. Similarity evidence cannot be used to prove consent under Canadian Law or believe in consent. A pattern of uncommon sexual behaviour should be required. A pattern of consistent and distinctive behaviour needs more than one or two events. The behaviour must be different and unusual, matching the allegation.^96 For the pattern to be relevant, it must be closely related to the alleged occurrences. In a nutshell, the law addressing sexual history evidence has been criticised and furious, particularly after the Evans decisions. Many officials and judges are interested to amend or examine the law to balance the requirements of the parties. Legal reform is only feasible with social change. Preconceived legal and societal practices that connect a woman’s sexual freedom to her character affect her as a victim’s credibility.^97 (2161 words) Bibliography (^96) n4, para. 137 (^97) Clare McGlynn, ‘Rape Trials and Sexual History Evidence’ (2017). The Journal of Criminal Law 367-

Cases

1. R v Mukadi [2003] EWCA Crim 3765
2. R v Ched Evans [2016] EWCA Crim 452
3. R v Seaboyer [1991] 2 SCR 577
4. R v Darrach [2000] 2 SCR 443
5. R v A (No.2) [2001] UKHL 25
6. R V C [2009] UKHL 42 Legislation
7. Criminal Code of Canada 1985
8. Youth Justice and Criminal Evidence Act 1999
9. Sexual Offences Act 1976 Journals/ Articles
10. Clare McGlynn, ‘Rape Trials and Sexual History Evidence’ (2017). The Journal of Criminal Law 367-
11. Kelly, Temkin, and Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials (Home Office Report: London, 2006) 59
12. J. Temkin, ‘Sexual History Evidence- Beware the Backlash’ (2003) Criminal Law Review 217
13. V. Baird, ‘Changes to Section 2 of Sexual Offences Act 1976’ (1999) 39 Medicine Science and the Law 198
14. S. Lees, ‘Judicial Rape’ (1993) 16 Women’s Studies International Forum 11; S. Payne, Rape: The Victim Experience Review (Home Office: London, 2009)
15. Jennifer Temkin, ‘Regulating Sexual History Evidence- The Limits of Discretionary Legislation” (1984) 33 International and Comparative Law Quarterly 942-
16. Jennifer Temkin, ‘Regulating Sexual History Evidence- The Limits of Discretionary Legislation” (1984) 33 International and Comparative Law Quarterly 942-

8. Michele Burman, ‘Evidencing sexual assault: women in the witness box’ (2009) Probation Journal, 56 (4).
9. Birch, D. ‘Rethinking sexual history evidence: Proposals for fairer trials’ (2002) Criminal law review.
10. Aileen McColgan, 'Common Law and the Relevance of Sexual History Evidence' (1996) 16 OJLS 275.
11. Northeast Law Review, ‘R v A (No 2) AND THE PROTECTION OF COMPLAINANTS’ DIGNITY, PRIVACY AND SEXUAL FREEDOM’ (2015) 3 NELR
12. Matt James Thomason, ‘Previous Sexual History Evidence’ (2018) 22 The international Journal of Evidence & Proof
13. Heilbron Committee, ‘Report of the Advisory Group on the Law of Rape’, Cmnd 6352 (HM Government, 1975)
14. Report of the Advisory Group on the Law of Rape, Cmnd 6352 (1975). Websites
15. Liz Saville-Roberts MP, ‘Sexual Offences (Amendment) Bill (HC Bill 137). < https://publications.parliament.uk/pa/bills/cbill/2016-2017/0137/cbill_2016- 20170137_en_2.htm#l1g1 > accessed 21 November 2022