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Vera Baird QC, Northumbria Police and Crime Commissioner.
Flickr/David Aisbett
Girls & Women

Rape Survivors’ Sexual History Is Used Against Them in Court, Say Campaigners

People who report rape are being quizzed unfairly on their sexual history in court, according to a group of cross-party MPs, charities, and rape support organisations calling for a change in the law. 

Evidence of extramarital affairs, having had multiple sexual partners, and sexual preferences is leading to complainants of rape being “unfairly judged,” say campaigners.

What’s more, according to campaigners, the fear of having details of their sexual history brought up in front of a jury is putting victims off reporting rape. 

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Two former solicitor generals — Dame Vera Baird QC, the Northumbria Police and Crime Commissioner, and Labour MP Harriet Harman — are leading the campaign, which launched on Monday. 

A coalition of 17 cross-party MPs, eight charities, peers, and rape support organisations met for the first time in parliament for the campaign launch. 

They are calling on the government to change the law and to tackle the problem of previous sexual history being brought up in court, “of which there is overwhelming evidence.”

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“In the 70s, 80s, and 90s, we fought to protect women from being unfairly judged on their sexual history, back then the argument would run ‘she consented to me as well because she’ll have sex with anyone’,” said Baird in a statement

In 1999, a law was introduced in an effort to protect rape complainants and to “curtail” the use of their sexual history “as evidence of consent.” 

“But the research is clear that the law is not working as parliament intended it to and we are now having to fight that fight again,” added Baird. 

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The law — Section 41 of the Youth Justice and Criminal Evidence Act 1999 — states that, in a sexual offence trial, an application has to first be made on behalf of the accused to bring in evidence of the complainant’s sexual history, or to cross-examine the complainant about their sexual history. 

However, according to campaigners, the law is failing to “protect women from being unfairly judged on their sexual history,” said Baird. 

“We cannot allow rape trials to be inquisitions into the complainant’s sex life,” Baird continued. “The fear of a complainant being confronted with evidence relating to sex with other men is, and has always been, a huge deterrent to reporting rape.” 

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Campaigners held up the Ched Evans case from 2016, during which the footballer was acquitted of rape after fresh evidence was used in his retrial. 

Two other men testified in court at the retrial, including offering details of the complainants’ sexual preferences, according to the Guardian, and the language she used during sex. 

Baird also conducted research, compiled in a report called “Seeing Is Believing”, for which court observers watched 30 rape trials over a course of 18 months at Newcastle Crown Court. 

Of these trials, evidence of a complainants’ sexual history was used in 11 of the cases — 37% — and in the majority of these, the evidence used related to sex with men other than the accused. 

According to campaigners, defence barristers use the evidence to undermine the complainants’ credibility. 

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In one case, says Baird’s research, a woman was asked by the defence whether she had previously had anal sex “to give the impression [she] would consent to a wide range of sexual experiences, to influence the jury into thinking the survivor had in fact consented and that it wasn’t rape.”

In another case, according to Baird, the defence barrister said that it was to show that “she is an adulteress.” 

The research also alleges that in seven of the 11 cases where sexual history was used as evidence, the proper procedure of applying for the judge’s consent ahead of trial with notice to the prosecution wasn’t followed — instead, it claims, either there was no application, or it was made at the trial without notice. 

Two further national surveys — from women’s rights organisation the Fawcett Society this month, and sexual violence and safeguarding organisation LimeCulture in 2017 — also found that the Section 41 application procedure was being ignored in some cases. 

In December, however, analysis from the Ministry of Justice (MOJ) and the Attorney General’s Office was published, examining more than 300 rape cases. According to the analysis, in 92% of cases the defence introduced no evidence of the complainant’s sexual history. 

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Campaigners want Section 41 to be strengthened, including by introducing clauses to force judges to balance applications against the risks of prejudice, “discriminatory belief or bias,” and turning juries “hostile,” according to the Independent

“It’s not a fair trial if prejudicial, irrelevant evidence is allowed in,” said Harriet Harman MP, also a former Solicitor General.

“We need a change in the law to ensure that trials are fair and that complainants do not face the ordeal of their sexual history being dragged through the courts,” she added.

The Fawcett Society’s review also recommended that victims should have a right to legal representation whenever an application to use Section 41 is made; and the government must review the law — in particular, it added, whether the use of sexual history evidence should be used at all for the purposes of establishing consent.

Global Citizen campaigns to achieve the UN’s Global Goals, which include actions on gender equality and justice. You can join us by taking action here in support of the #LeveltheLaw campaign, which is calling on world leaders to put an end to laws that discriminate against women.