Legal Revolution: In UK, rape victims’ sexual history not to be included as evidence

In what could revolutionise rape trials, the UK Law Commission is working out a way to not include rape victims’ sexual history as evidence in court to avoid prejudice by the jury.

When and if the law comes into effect, judges will be allowed to block defence lawyers from presenting a victim’s sexual past as evidence to suggest that he or she is “not believable.” On the other hand, evidence like this has the potential to destroy the case as they may point out that the victim had consensual sex with the alleged attacker.

If the victim’s sexual history risks “perpetuating myths and misconceptions” or undermining the “dignity” of the victims, judges can choose not to review it as evidence.

The UK will base the new laws on Canada’s criminal code, known as the ‘rape shield law’.

The move comes after UK’s Law Commission was asked by the government to look for better ways of using evidence in sexual offence prosecutions, according to The Telegraph.

The UK has been witnessing a 60 per cent dropout rate among rape victims who choose not to go ahead with their trials because of intrusive questioning by the police about a woman’s sexual past.

“It has long been acknowledged that introducing evidence of the complainant’s sexual behaviour at trial risks both subjecting the complainant to unnecessarily intrusive and humiliating questioning and reliance on myths and misconceptions about their credibility, consent and moral worthiness,” the Law Commission said in a statement.

What is Canada’s rape shield law?

The rape shield law of Canada was enacted four decades ago.

The sexual history of a rape victim can only be used as evidence with a judge’s permission following a private hearing, and cannot be used to infer the complainant is less trustworthy or more likely to have consented, according to the Criminal Code.

In 2018, the government expanded the definition of what constitutes evidence adding communications of sexual nature via email, videos and documents about the complainant acquired by the accused.

Canada’s criminal code states, “A defendant in a sexual assault case cannot introduce evidence of the complainant’s sexual activity in order to imply that the complainant’s past sexual history suggests the complainant is not believable or is more likely to have consented to sexual activity with the defendant.”

Other provisions to be introduced by UK

While banning the use of sexual past as evidence remains the central focus of the new rules, other provisions include providing victims with measures aimed at rescuing victims from the trauma of public trials.

Apart from this, the government will also set up independent legal advice for and “educational tools” to reduce the impact of rape myths.

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