This article titled “Law concerning use of sexual history in rape trials ‘could be reformed'” was written by Rowena Mason Deputy political editor, for The Guardian on Thursday 27th October 2016 12.34 UTCJohn Fawcett has joined the firm as Partner
The law could be reformed to make clear that an alleged rape victim’s sexual history must not in future be used routinely as evidence in court, the attorney general has suggested.
Jeremy Wright told the House of Commons that concerns about the practice were legitimate, after a group of MPs warned that women would be less likely to report rape because of the high-profile retrial of the footballer Ched Evans.
More than 40 female Labour MPs wrote to Wright expressing their worries after evidence about the sexual history of the complainant was used in the retrial of Evans, a former Wales international who was acquitted this month.
Evans was found not guilty of raping a 19-year-old woman following a five-year battle to clear his name. The jury at Cardiff crown court heard from two men who had sex with the complainant around the time of the rape allegation. Such evidence is only allowed in rape trials in exceptional circumstances.
Following the case, members of the women’s parliamentary Labour party, including its chair, Jess Phillips, as well as Harriet Harman and Angela Eagle, urged the government to support a change in the law to prevent the sexual history of rape complainants being used routinely to discredit their evidence in court.
Section 41 of the Youth and Criminal Evidence Act 1999 puts restrictions on what evidence can be put before a court by the defence about an alleged victim’s sexual behaviour, and on the questioning of the complainant. However, a loophole means previous sexual behaviour can be used only in matters of consent “when the behaviour is close to the time of the alleged offence and the behaviour is so similar as to not be explained by coincidence”, according to the CPS.
In the letter to Wright, the MPs wrote that a move towards revisiting the sexual history of complainants in court would “act to make the prosecution of rape cases in the future harder and reporting of these crimes less likely”.
Vera Baird, a former solicitor general, said the Evans case put Britain back “probably about 30 years” in relation to women reporting rape to the police.
Speaking in the House of Commons, Wright said the subject was a matter of concern and suggested that the law and guidance around the admission of a complainant’s sexual history in criminal trials could be reformed.
“There is concern here, and we need to accept that that concern is sensible and deal with it,” he said.
“I think what we need to look at is a number of things. We need to understand more about the decision in this particular case, we need to understand whether a change in the law is appropriate and, if not, whether it is sensible to look at the guidance that is given to judges about when this evidence is admissible and the guidance that judges give to juries about how that evidence should be used.
“I think we need to do all of those things before we are in a position to understand what, if any, changes are needed.”
Wright said the legal provision allowing an alleged victim’s sexual history to be used in evidence was not used routinely.
However, he added: “We must be confident that the message sent to those who may be currently worried about reporting these sorts of offences is not that they are not encouraged to do so, quite the reverse: they are, and we need to make sure that those messages are clear.”
The matter was raised by the shadow solicitor general, Nick Thomas-Symonds, who said there were “grave recent concerns about the admissibility of a complainant’s previous sexual history in rape trials”.
He warned that “single high-profile cases can give rise to wider perceptions about the law” and urged ministers to ensure victims were encouraged to come forward.
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