08:07, December 14 250 0 theguardian.com

2017-12-14 08:07:03
Sexual history can sometimes be revealed in rape cases, says MoJ

Evidence of complainants’ past sexual experiences should be able to be revealed in exceptional circumstances in rape cases, a Ministry of Justice report has concluded.

Rejecting calls for a ban on those who report attacks being cross-questioned about their sexual history, the department has, however, recommended that the Crown Prosecution Service update its mandatory training for prosecutors and has asked the criminal procedures committee to review the relevant courtroom rules.

Concerns about the way section 41 of the Youth Justice and Criminal Evidence Act 1999 was being operated emerged after the acquittal of the footballer Ched Evans last year.

Evans’s retrial heard evidence from two other men who testified about the complainant’s sexual preferences and the language she used during sex.

The Labour MP Harriet Harman proposed altering the law in order to prevent those who make allegations of rape from being quizzed in court about their past relationships and sexual history.

“The problem,” Harman said earlier this year, “is, even if it’s not in open court, the idea that there’s going to be a court with lots of people in it hearing evidence brought forward by the defence about your previous sexual conduct in itself would be a deterrent.”

Section 41 restricts the circumstances in which evidence relating to a complainant’s sexual history can be introduced. It was alleged that victims of sexual offences could be discouraged from reporting attacks to the police if they were at risk of having their intimate past lives exposed in court, albeit anonymously.

The defence has to make an application to the court to introduce any evidence or questions about a complainant’s sexual history. The application is then decided upon by the judge in the case.

The inquiry, carried out by the Attorney General’s Office and the MoJ, found that the law on such lines of questioning in sexual offence trials was working effectively. The report analysed more than 300 rape cases completed in 2016 in England and Wales.

It showed that in the overwhelming majority (92%), no evidence of the complainant’s sexual history was introduced by the defence. Applications to introduce such evidence were only made in 13%. Of the 40 applications that were made by the defence, in 12 cases the prosecution either agreed or partially agreed to the application.

Those figures suggest that the bar for disclosure of such evidence is sufficiently high, the report concludes, and that the law strikes a careful balance between the need to protect complainants while ensuring defendants receive a fair trial.

A government spokesperson said: “It is vital that victims have complete confidence in the justice system and trust that they will be treated with the utmost fairness in court.

“Which is why we have looked closely at the use of section 41, to ensure the bar for disclosure of a complainant’s sexual history is high. This data shows that such evidence is used sparingly and that the law is working as it should.

“But we want to do more for victims of sexual offences, that is why the CPS is updating its mandatory training for prosecutors, and we will be rolling out pre-recorded cross-examination for vulnerable witnesses to ensure that they can give their best evidence.”