A rape victim’s sexual history could no longer be used as evidence in court under new plans to minimise the effects of myths and misconceptions about rape on the trial process.
The Law Commission is an independent body that makes recommendations to the government to reform the law in England and Wales.
Given the decline in conviction rates since 2016, the government requested an examination of sexual offences prosecutions.
As a result, the commission proposed reforms that would counter the effects of rape myths, improve the treatment of complainants, and ensure that defendants receive a fair trial.
Rape myths are based on stereotypes and despite efforts to minimise their effects, misconceptions about rape still contaminate some aspects of the trial process, reported the commission.
Complainants are often afraid of their non-relevant personal materials being exposed and used against them. This may stop the complainant from proceeding or compromise their recovery through therapy.
To address this, the commission proposed that a judge applies heightened thresholds to determine applications using tests adapted from Canada. Factors to be considered are whether the record is necessary for the defendant to make a full answer to the prosecution case; the complainant’s right to privacy; and wider societal interests in encouraging the reporting of offences and complainants obtaining treatment.
The commission also suggested restricting the use of evidence and questions about the complainant’s sexual behaviour, which can be “unnecessarily intrusive and humiliating.”
“We instead suggest the use of an enhanced relevance threshold to admit this evidence. When applying this threshold, a judge would consider a range of factors including the defendant’s right to a fair trial; respect for the complainant’s private life; the benefits of encouraging reporting of sexual offences; and the risk of introducing or perpetuating rape myths,” the consultation proposed.
It also warned that in cases when rape complainants apply for compensation, the jury may be swayed to think that the complaint is false and was made for financial gain. The commission proposed that such claims for compensation should be questioned and used as evidence in court only with permission from a judge and restricted using a heightened threshold.
The End Violence Against Women (EVAW) coalition has welcomed the review to “address the stereotypes, discrimination and rape myths at the root of these issues.” However, it added that conviction rates remain low and survivors face a justice system that harms them.
“If the government is serious about ending violence against women and girls, it is imperative that it acts on the outcome of this consultation. This cannot just be another review that goes nowhere. Survivors deserve better,” EVAW Director Andrea Simon said in a statement.
England and Wales is the only jurisdiction in the UK that routinely requires complainants to give evidence in public. To prevent the “additional stress and concern about being observed and possibly identified, by strangers, family and friends of the defendant, or multiple reporters and bloggers,” the commission proposed assisting complainants as they give evidence. This includes restricting members of the public from sitting in on the trial.
Former Justice Secretary Dominic Raab said in December 2022 that victims should be properly supported throughout the criminal justice process.
“That is why we introduced a 24/7 rape and sexual abuse helpline, pre-recording of evidence in court to spare them the trauma of testifying during a live trial, and a new approach to police investigations that focuses on the behaviour of the suspect rather than the victim,” Raab said.
