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  • 22 June 2006

Law fails to prevent the use of sexual history as evidence in rape trials


A new study has highlighted the failure of legislation to prevent a rape complainant's previous sexual experience being used as evidence in rape court cases

Researchers, led by Jennifer Temkin, Professor of Law at the University of Sussex, and Professor Liz Kelly, of London Metropolitan University, found that the use of sexual history is still a feature of rape trials, despite changes to the law in 1999 to restrict its access.

Professor Temkin says: "Much criticism and concern has been expressed over the years about the use of the complainant's sexual history as evidence in rape trials, yet few young people or adults in the twenty-first century have had only one sexual partner. The majority of the population, therefore, has a sexual history." She adds: "These sexual experiences take on additional and negative meanings when used in trials".

The first attempt to curb the use of this evidence was made in the 1976 Sexual Offences (Amendment) Act. As this had limited success, new and tighter legislation was introduced in 1999 in Section 41 of the Youth Justice and Criminal Evidence Act.

The latest research, carried out for the Home Office, examined the operation of this new legislation. It was found that:

  • Out of rape cases coming before the Crown Courts in England and Wales in a three- month period in 2003, applications to introduce sexual history were made in almost one quarter of cases. Two thirds of these applications were successful
  • Sexual history was also introduced into trials without application being made, as required by the law
  • The new rules - that applications be made in writing and before the trial - were almost invariably broken

The report also showed that judges and barrister were mainly in favour of legislation to control sexual history but most thought the present legislation was too restrictive and did not leave the judges with sufficient discretion.

Professor Temkin says: "Attention needs to be given to making the law more effective by stronger education of barristers and judges about the law itself and the social context in which it operates. Further consideration needs to be given to mechanisms for enforcing the law."

Notes for editors

Liz Kelly, Jennifer Temkin, Susan Griffiths Section 41: An Evaluation of New Legislation Limiting Sexual History in Rape Trials Home Office, June 20, 2006

 http://www.homeoffice.gov.uk/rds/whatsnew1.html

 

 

University of Sussex press office contacts: Jacqui Bealing or Alison Field, tel: 01273 678888, email: press@sussex.ac.uk

 

 

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