Sexual offences are unlike other crimes. The majority of victims are women, many offences go unreported, and conviction rates are low. Myths and stereotypes linger about who is a ‘real’ victim and that sexually promiscuous women are more likely to consent to intercourse and less likely to tell the truth. The use of a woman’s sexual history at trial plays into – and perpetuates – these myths. It is used to discredit the complainant by humiliating and degrading them to such an extent that they feel violated all over again. It deters many women from reporting sexual offences and when they do, can lead to the withdrawal of complaints. And it contributes to the woefully poor conviction rate.
Women’s activism played a key role in keeping sexual history evidence on the public and political agenda when the first legislative attempt to limit admissibility proved unsuccessful. This paved the way for section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) which excludes evidence and questions on a complainant’s sexual history unless specific requirements are met. However, while section 41 stands as a symbolic challenge to the myths and stereotypes around the relevance of a woman’s sexual history, its success has been limited in practice. In a recent court observer scheme, the results suggested that previous sexual conduct was used to discredit complainants ‘in precisely the way that section 41 was intended to prevent’.
The full version of this landmark is written by Sonia Kalsi