When can a complainant’s sexual history be put before the court?

Question

When can a complainant’s sexual history be put before the court?

Answer

The recent rape allegations against Ched Evans and his subsequent acquittal after the complainant’s sexual history was put before the court raises the question of whether complainants in a sexual offence trial can typically expect to have their sexual history put before the court.
The answer is: typically, not. Under the Youth and Criminal Evidence Act 1999, no evidence can be adduced as to the complainant’s sexual history without leave of the court in sexual offences cases. Leave of the court will not be given unless the court is satisfied that unless the evidence is adduced, the conclusion of the jury on any relevant issue might be rendered unsafe.
A ‘relevant issue’ is one which is not being used for the purpose of impugning the complainant’s credibility and fits one of two categories. The first is where the issue does not concern whether the complainant consented to the act. The second is where the issue does relate to consent and either the sexual behaviour which is the subject of the evidence occurred in the same place and time as the alleged offence, or is so similar to behaviour the claimant engaged in at the time of the offence that the similarity could not be coincidence.
This last exception was what was at issue in the case against Ched Evans: the complainant was said to have had engaged in very particular behaviour during previous sexual encounters which the defendant claims she repeated during her encounter with him. However, the availability of this exception to the rule disallowing evidence on previous sexual history is not as common as the case might indicate – the exceptions as very narrowly defined.

References

Table of Legislation

Youth and Criminal Evidence Act 1999

Journal Articles

Temkin J, ‘Sexual History Evidence – Beware the Backlash’, [2003] Crim. L.R. 217

Websites

Press Association, ‘Sexual history evidence in Ched Evans rape trial causes concern for Vera Baird’, (Mail Online, 15 October 2016), accessed 21 October 2016