The press widely reported on Director of Public Prosecutions Alison Saunders comments in an interview to the Evening Standard relating to prosecuting rape cases this week. Headlines of “Prosecutors told to dig into accused rapist’s past” and “Alleged rapist past put on trial” picked up on comments made by the DPP in the Standard that: “we are looking at how to prosecute certain types of cases, the more difficult ones. They tend to involve drugs or drink and people who know each other”. She developed this by saying, “Some of it will be if you have already been in a relationship, understanding the dynamics of coercive and controlling behaviour and presenting cases in a way that doesn’t just look at the individual incident”.
Tackling violence against women and girls is a priority area for the Crown Prosecution Service (CPS). Indeed if you look at the stats, the CPS Violence Against Woman annual report 2016 sets out that rape, domestic abuse and sexual offences now account for 18.6 per cent of the CPS's total caseload and this figure has been increasing year-on-year. Though compared to (non-rape) sexual offences where the conviction rate is 78% the conviction rate for rape is 57.9%.
The DPP’s comments are striking but surely misreported. The suggestion that the defendant’s sexual history must be relevant to “presenting cases in a way that doesn’t just look at the individual incident” appears to be the polar opposite to the approach taken to a complainant’s sexual history, which is caught by s. 41 Youth Justice and Criminal Evidence Act 1999 (“s. 41”).
The introduction of s. 41 was founded on an attempt to protect a complainant from cross-examination on the basis of the ‘twin-myths’, i.e. “that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief” (.R v Seaboyer (1991) 83 DLR (4th) 193, 258, 278C per McLachlin J).
S. 41 operates to restrict evidence of a complainant’s sexual history unless admitted through a specific gateway – in practice, the effect of s. 41 is to make the questioning of a complainant’s sexual history an exceptional course.
Therefore, the DPP’s comments would appear to advocate for a position where a defendant would face questioning on their sexual history while being prohibited from questioning the complainant on the same basis. This cannot be right.
On balance, it would appear that the DPP was articulating a desire for prosecutors to ensure that a full investigation was conducted into the circumstances leading up to the sexual contact between the complainant and the defendant. This is an understandable desire given the significant reduction of resources which have led to bare-boned investigations often comprising of little more than the taking of a complainant’s account.
In any event, evidence of the defendant’s sexual history would not be automatically admissible and any application to introduce such evidence would be subject to judicial oversight. Even if the DPP’s proposal is adopted, this would not change without further legislation.
Bringing to justice the perpetrators of sexual offences should be a priority of the police and prosecution. However, this requires proper resourcing and expertise not alarmist headlines.