This post has been contributed by Ms Amber Marks, Module Convenor for Evidence.
If Tom is on trial for the rape of Alice, should evidence that Alice flirted with Dick and Harry earlier in the evening of the alleged rape be admitted in Tom’s trial?
This is one of the many provocative questions posed by researcher Clary Mcglynn in a policy briefing on sexual history evidence (https://claremcglynn.files.wordpress.com/2017/09/sexualhistoryevidence-briefing-mcglynn-august-2017.pdf). In it McGlynn cites research by Kelly et al. that seriously undermines Government claims that the admission of sexual history evidence in trials of sexual offences is ‘exceptional’. McGlynn argues that the law needs to be reformed to ensure that such evidence really is only admitted exceptionally. McGlynn makes several recommendations for achieving this, many of which it will be useful for us to think about. In Canada and Scotland sexual history evidence can only be admitted where it has significant probative value that is not substantially outweighed by the risk of prejudice to the administration of justice. McGlynn argues that this is a higher standard than in English law and that we should adjust our laws accordingly.
One concern about the admission of the complainant’s sexual history in a case is its potential to have a prejudicial impact on the complainant. Part of this risk is that regardless of whether a jury believes the complainant has been raped, some jury members might choose to acquit because they hold the complainant to be morally responsible for the assault. A report by Amnesty International demonstrates why this is significant risk (https://www.amnesty.org.uk/press-releases/uk-new-poll-finds-third-people-believe-women-who-flirt-partially-responsible-being). Other potential prejudicial impacts include unfairly undermining the credibility of the complainant’s account and distracting the jury from the real issues in the case.
The relevance of sexual history evidence is where things get really complicated and controversial. When is such evidence relevant and what issues is it relevant to?
McGylnn argues that sexual history evidence (whether it be with third parties or with the defendant) should not be used to prove consent, or reasonable belief in consent. She argues that the only basis for finding such evidence relevant to consent or reasonable belief on consent is the discredited ‘twin myths’ (as described in the Canadian case of R v Seaboyer  2 SCR 577 and referred to in the House of Lords decision in R v A). The relevance of sexual history to the question of whether the defendant held a reasonable belief in consent is one that had not received much attention in evidence scholarship until Laura Hoyano’s commentary in the Criminal Law Review on the case of R. v Gjoni (Kujtim)  EWCA Crim 691;  Crim. L.R. 765.
McGylnn wants to strike down the similarity exception, particularly for third party evidence. Evidence students will be familiar with this exception and will probably have struggled repeatedly with its interpretation – both because of its confusing wording in the statute and on account of the ambiguity surrounding its purpose. McGlynn argues that such evidence is both irrelevant and prejudicial.
In fact McGlynn argues that no evidence of a complainant’s sexual history with third parties should be admissible in a rape trial, except for in rare circumstances in which it is required to show the source or origin of semen, pregnancy or disease. She says this would prevent evidence being admitted in cases such as that admitted in the retrial of Ched Evans (https://en.wikipedia.org/wiki/R_v_Evans_and_McDonald).
Not everyone agrees with McGlynn. Some lawyers have argued (https://www.counselmagazine.co.uk/articles/sexual-history-evidence-fair-game) that commentators have blown the implications of the Court of Appeal’s decision in the Ched Evans case out of all proportion and defend the present law in this area.