It seems like a scary time to be a woman. With Donald Trump and his “locker room” talk, Turkey attempting to decriminalise the actions of grown men marrying young girls, and the aftermath of the Ched Evans’ trial showing again how badly people behave when hiding behind a Twitter handle, it can feel like simply being a women makes you vulnerable to the bad decisions of others.
With regard to the Ched Evans’ case, there is a lot of confusion about the effect that the decision will have on future cases involving rape and sexual assault. Specifically, much has been made about the case setting a harmful precedent by bringing about a change in the law and allowing rape victims to be grilled about their previous sexual history. This is just not true. Thankfully, the Ched Evans’ case has done no such thing. It is not a precedent of any kind.
I set out below the actual position regarding the use of a woman’s sexual history as part of such a trial. In doing so I hope to dispel some fears and reassure anyone thinking of reporting a sexual crime that they can still do so, and they do not need to fear that their past will be raked over in court. The law has not changed and victims should be encouraged to come forward as they always have done, not scared into hiding because some people have misinterpreted the law.
The law as it currently stands
Currently, complainants in cases involving sexual offences are protected from having their previous sexual behaviour introduced as evidence in a criminal trial. This is the starting point in every case, regardless of the status of the complainant or the accused. Only in exceptional, and very limited, circumstances can the defence seek to either rely on evidence of a complainant’s previous sexual behaviour or ask questions about it in cross-examination, and only after the submission of a detailed application which is then considered by the judge. Contrary to popular opinion, this has not changed since the case against Ched Evans.
In what circumstances can a woman’s sexual behaviour be introduced as evidence?
Should the defence wish to be granted permission to introduce evidence about a complainant’s past sexual behaviour, it needs to go through quite a complicated process. This process is governed by statute – section 41 of the Youth and Criminal Evidence Act 1999 to be precise – and, although there is a degree of judicial discretion, it is limited and must be applied carefully and in line with the letter of the law. To further clarify, the case of Ched Evans has not changed how judges apply their discretion or how they interpret the legislation either.
When making an application under section 41, the defence must rely on one of the exceptions to the starting point of no evidence of sexual history. In summary, insofar as the evidence of a complainant’s past sexual behaviour relates to consent, it can only be raised if it happened at or about the same time (this can be some weeks beforehand) as the subject matter of the charge against the accused or if the sexual behaviour in question (again at the time or near the time) was so similar to the behaviour displayed that it ‘cannot reasonably be explained as a coincidence’. Another exception is to allow the defence to rebut, or defend, evidence of the complainant’s sexual history as put forward by the prosecution.
Finally, and most importantly, even if one of those exceptions is satisfied, evidence of a complainant’s past sexual behaviour cannot be introduced unless the judge is sure that, in not allowing the defence to introduce that evidence, it would result in the wrongful conviction of the accused. This is a very high standard to satisfy.
How this was applied to Ched Evans
If this sounds complicated, it is perhaps best explained by reference to what happened at the Ched Evans trial. On appeal, Evans’ legal team were allowed to introduce new evidence about the complainant’s sexual behaviour. This evidence had not been available at the initial trial and, in brief, it comprised of the testimony of two other men who said that the complainant had behaved identically to the manner alleged by Evans. From a legal perspective, the evidence was so similar that it was deemed not to have been a coincidence. It was for this reason only that the complainant’s past sexual history was introduced as evidence.
Whilst it is very positive that there has been no great change in the law as it relates to previous sexual history, an argument about the law in this area still rages. Indeed, during a debate on crime and policing at the House of Lords on 16 November 2016, a review of the statute was announced. Although agreeing to the review, the Lords were also quick to reassure people that the law had not changed, and the Act and the application of the rules in this area had been tried and tested for years.
Be that as it may, a review of the law and its application to make it easier for those who use it can only be welcomed, particularly if it can make the overall process of going to trial easier for victims, as well as preventing such misunderstandings in the future. However, anyone who has been affected by crimes of sexual violence has nothing to fear from the Ched Evans’ verdict and should still, very much, be encouraged to come forward.