Table of Contents
Terms of reference
Participants
Submissions
Summary of issues for discussion
1. INTRODUCTION
TERMS OF REFERENCE
BACKGROUND TO THE REFERENCE
THIS PAPER
WHAT IS SECTION 409B?
An evidentiary provision
What does section 409B say?
Absolutely prohibits reputation evidence
Limits evidence of sexual experience
HOW DOES SECTION 409B(3) WORK?
Counsel makes an application
Trial judge decides if evidence is admissible
Some examples
Cases in which evidence of sexual experience was admissible
Cases in which evidence of sexual experience was inadmissible
EVIDENCE ACT RESTRICTIONS
WHY WAS SECTION 409B ENACTED?
Section 409B was part of a package of sexual assault reforms
Rationale of section 409B
OTHER LAWS RESTRICTING SEXUAL REPUTATION AND EXPERIENCE
Sexual reputation evidence
Sexual experience evidence
SECTION 409B(3) DISTINGUISHED
2. DOES SECTION 409B WORK?
INTRODUCTION
SECTION 409B APPROACH MAY BE INAPPROPRIATE
SECTION 409B RAISES PROBLEMSOF INTERPRETATION
Introduction
Does sexual experience include sexual abuse?
Does section 409B(5) provide an exclusive test of cross-examination?
What constitutes an existing or recent relationship?
CASES WHERE THE ISSUE IS CONSENT
CASES WHERE INTERCOURSE IS DENIED
3. OPTIONS FOR REFORM
OPTIONS FOR REFORM - SEXUAL EXPERIENCE EVIDENCE
Introduction
Option 1
Option outlined
Arguments in favour of option 1
Arguments against option 1
Option 2
Option outlined
Arguments in favour of option 2
Arguments against option 2
Option 3
Option outlined
Arguments in favour of option 3
Arguments against option 3
OPTIONS FOR REFORM - SEXUAL REPUTATION EVIDENCE
The issue
Arguments for retaining the ban on reputation evidence
Arguments against retaining the ban on reputation evidence
