3.1 Section 409B came into operation on 14 July 1981.1 Before then, the admissibility of evidence of a complainant’s sexual experience and reputation in sexual offence proceedings was governed by the common law. The introduction of s 409B in 1981 was largely as a response to widespread condemnation of the common law, which was seen to be based on irrational notions of relevance and outdated and sexist assumptions about women.
THE COMMON LAW
3.2 At common law, complainants in sexual offence proceedings could traditionally be cross-examined about:2
(1) their sexual reputation;
(2) sexual intercourse with the accused on other occasions;
(3) sexual intercourse with other people.
“Relevance” of sexual reputation
3.3 The common law considered evidence of a complainant’s sexual reputation to be relevant to the question of whether she3 consented to sexual intercourse with the accused, as well as to her general reliability as a witness. A complainant could be questioned about her moral character, specifically as to whether she was a prostitute or a woman of notoriously bad character as regarded her chastity. Independent evidence could also be admitted to show that the complainant worked as a prostitute or was otherwise a woman of bad sexual reputation.
“Relevance” of sexual experience with the accused
3.4 Evidence of sexual intercourse between the complainant and the accused on other occasions, either before or after4 the alleged assault, was also seen as relevant to whether the complainant consented to sexual intercourse with the accused on the occasion of the alleged assault. If the complainant denied having had sexual intercourse with the accused on other occasions, evidence could be led to contradict her denial.
“Relevance” of sexual experience with other people
3.5 Traditionally, the common law considered evidence of sexual intercourse between the complainant and people other than the accused as relevant to the complainant’s credibility. It was considered that a woman who had sexual intercourse outside of marriage may for that reason alone be unreliable or less worthy of belief.
3.6 In accordance with general common law principles regarding cross-examination on issues of credit, a complainant could be cross-examined about her sexual experience with people other than the accused, but independent evidence was not admissible to contradict her if she denied the allegation of sexual experience. In one case, however, the High Court stated that there may be some situations where evidence of sexual intercourse between the complainant and people other than the accused could be relevant to a fact in issue in the case, and not merely to the complainant’s credibility as a witness. In these circumstances, independent evidence could be admitted to show that the complainant had had sexual intercourse with other people. For example, evidence of acts of intercourse with other men which were closely connected in time or place with the act of alleged sexual assault could be admitted as tending to show consent or belief by the accused in consent to intercourse on the occasion of the alleged assault.5
3.7 Although these common law principles were well-established, there was some suggestion in more recent cases that judges were beginning to question their appropriateness, in light of changing social habits and attitudes towards extra-marital sexual activity.6 In particular, some judges expressed doubt as to the relevance to a complainant’s credibility of her prior sexual experience with other people. Arguably, the scope of the common law to admit evidence of a complainant’s sexual experience and reputation is not completely certain. There is at least some indication that the common law principles regarding the admissibility of such evidence were undergoing modifications by the time s 409B was introduced into legislation. Since that time, it has been said of the common law as it operates in Canada that it would no longer permit evidence of sexual conduct and reputation to be used as a basis for making inferences about the complainant’s credibility or consent.7
PERIOD OF REFORM
3.8 By the 1970s, there was significant community concern throughout Australia and in other common law countries about the laws and legal procedures relating to sexual assault, or “rape” as it was then described in the legislation. Women’s organisations and feminist rights groups were particularly vocal in their condemnation. They regarded the common law relating to rape to be based on sexist assumptions and moral judgments about women: with its focus on the complainant’s moral character and previous sexual experience, the common law was seen to operate in a way which required women, particularly “promiscuous” women, to prove that they did not “deserve” or “ask” to be raped.8
3.9 Of major concern was the treatment of complainants in court, especially the cross-examination of complainants about their sexual experience and reputation. The common law was criticised for admitting evidence of both on the basis that it was relevant to the issues of consent and credibility, where “relevance” was based solely on the notion that a woman who had sexual intercourse with men outside of marriage must, for that reason, be less worthy of belief or must be more likely to have consented to sexual intercourse with the accused. The cost of these common law practices for complainants was to be regularly subjected to the public humiliation of attacks on their credit by reference to their sexual past. Cross-examination of this kind was criticised for diverting the jury’s attention from the real issues in the case and subjecting the complainant to severe emotional distress. It was considered that, as a consequence, it was often the complainant, and not the accused, who was on trial. The prospect of such traumatic courtroom experiences was considered to act as a significant deterrence for many women against reporting sexual offences at all.9
3.10 In response to calls for reform, major changes to the laws on sexual violence were introduced in the United States of America.10 In a relatively short span of time, similar legislative reforms were enacted throughout Australia and in other common law countries. In most jurisdictions, these reforms included the introduction of legislation restricting the admissibility of evidence of sexual experience and reputation,11 on the basis that the existing common law rules for admissibility were out of touch with modern views of morality, and permitted offensive and irrelevant questioning of complainants about their sexual behaviour.12
3.11 New South Wales was one of the last jurisdictions in Australia to introduce legislation restricting evidence of sexual experience and reputation. Several reviews were undertaken in this state in the late 1970s which made proposals for widespread reform of the law on sexual assault generally. There followed considerable community debate about which proposals, if any, should be adopted, and the way in which any legislative changes should be formulated.13
3.12 As in other jurisdictions, a significant number of the calls for reform in New South Wales were directed at the rules governing cross-examination of complainants about their sexual experience and reputation.14 Two opposing models were proposed, at different times, for legislative reform of this area.
3.13 One model, proposed by the Criminal Law Review Division of the Attorney General’s Department, followed a discretionary approach to restricting sexual experience evidence. According to this model, counsel would be required to seek leave to raise evidence, and the trial judge would be left to decide whether or not to admit it, depending on whether it was reasonably material to the proper determination of the issues in the case.15 This model had been adopted by every other Australian jurisdiction on the basis that it allowed flexibility to admit evidence of sexual experience which was truly relevant to the individual case.
3.14 The second model, put forward by the Women’s Advisory Council to the Premier, followed a rules-based approach to restricting sexual experience evidence. This was based largely on legislation which had been introduced in Michigan, and adopted in other states of the United States of America.16 The proposed provision set down rules for the admissibility of such evidence.17 It left no discretion for the judge in an individual case to decide whether to admit evidence falling outside specified categories. Evidence which did fall within the specified categories could only be admitted with the judge’s leave.
THE INTRODUCTION OF SECTION 409B
3.15 It was in this context that s 409B was introduced in 1981, as part of a package of reforms to the law on sexual assault. In its final form, s 409B adopted the rules-based approach to restricting evidence of sexual experience. That is, it prohibited such evidence except in specific circumstances which were listed in the section. It also imposed an absolute prohibition on evidence of sexual reputation. By regulating the admissibility of evidence in this way, s 409B was said to serve the following purposes.
3.16 First, the section was designed to put an end to the common law practice of allowing evidence of previous sexual experience to be used as a basis for inferring that the complainant was untruthful or was more likely to consent to sexual intercourse with the accused.18 The section was said to ensure that there would be no irrelevant questioning of sexual assault victims about their prior sexual behaviour; admissible evidence of prior sexual behaviour would be confined to material which, consistent with contemporary standards of behaviour, was genuinely relevant. Parliament was said to have deliberately adopted the rules-based approach, as opposed to the discretionary approach, as a way of ensuring that irrelevant evidence concerning sexual experience was excluded and that the old common law practices did not recur. There was concern that, if judges were given a discretion to admit evidence, they may continue to admit irrelevant and offensive material as had been the practice at common law. The imposition of rigid rules for admissibility was thought to be the only means of ensuring that irrelevant evidence would be excluded.19
3.17 Secondly, the section aimed to limit the circumstances in which complainants would be subjected to distressing cross-examination about their sexual experience. It was said to do this by offering complainants a “double protection”: first, by ensuring that all irrelevant evidence was excluded by means of a general prohibition; secondly, by providing that even evidence which was relevant and admissible under one of the exceptions in s 409B could nevertheless be excluded if the distress, humiliation or embarrassment it may cause to the complainant outweighed or was equal to its probative value. This was said to provide a distinctly stronger protection against distress for the complainant than a mere judicial discretion to exclude irrelevant evidence.20
3.18 Thirdly, it was considered that the section would encourage sexual assault victims to report the offence by reassuring them that they would not be subjected to humiliating and offensive questioning in the courtroom.21
3.19 Fourthly, the section was said to provide the accused person with full and proper scope to question the complainant on the facts of the case. Parliament had given consideration to including a judicial discretion to cover instances where evidence not falling within one of the listed exceptions was relevant to the case and should therefore be admitted. However, it was ultimately determined that there would be no other circumstances other than those listed as exceptions in s 409B(3) in which evidence would be legitimately relevant as to warrant a judicial discretion. It was therefore considered that the exceptions listed in s 409B(3) were sufficient to ensure that no injustice to the accused arose.22
3.20 Section 409B was amended in 1987 and again in 1989.23 These amendments did not change the substance of the section, but rather expanded the application of s 409B to a wider range of newly-created sexual offences. In particular, the application of s 409B was extended to proceedings for child sexual assault. It was stated that s 409B would serve the same purpose of protecting complainants in proceedings of this kind against questioning about their sexual experience and reputation.24
Footnotes
1. See Crimes (Sexual Assault) Amendment Act 1981 (NSW) Sch 1[15]; New South Wales, Government Gazette No 91 of 26 June 1981 at 3392.
2. See, for example, R v Bashir (1969) 54 Cr App R 1; R v Krausz (1973) 57 Cr App R 466; Stokes v The Queen (1960) 105 CLR 279; R v Aloisio (1969) 90 WN (Pt 1) (NSW) 111 at 114; Gregory v The Queen (1983) 151 CLR 566 at 571.
3. Most of the reported cases under the common law regime involved female complainants.
4. See R v Aloisio (1969) 90 WN (Pt 1) (NSW) 111 (Court of Criminal Appeal).
5. Gregory v The Queen (1983) 151 CLR 566. In that case, the co-accused sought to admit evidence that the complainant had engaged in consensual sexual intercourse with a number of men shortly before the co-accused had sexual intercourse with her. The Court held that this evidence related to events which formed part of a connected set of circumstances and was therefore admissible as relevant to the issue of consent.
6. See R v Zorad [1979] 2 NSWLR 764 per Reynolds JA at 774. See also, for example, R v McGarvey (1987) 10 NSWLR 632; R v White (1989) 18 NSWLR 332; R v Morgan (1993) 30 NSWLR 543. Although the latter cases were determined after the introduction of s 409B, they considered the common law as a pre-requisite to the admissibility of evidence under s 409B.
7. Seaboyer v The Queen; Gayme v The Queen [1991] 2 SCR 577 per McLachlin J at 630-637.
8. See, for example, G D Woods, Sexual Assault Law Reforms in New South Wales: A Commentary on the Crimes (Sexual Assault) Amendment Act 1981 and Cognate Act (New South Wales, Department of the Attorney General and of Justice, 1981) especially at 30; J Marsh, A Geist, N Caplan, Rape and the Limits of Law Reform (Auburn House Publishing Co, Boston, 1982) at 1-6, 21-23.
9. See, for example, South Australia, Criminal Law and Penal Methods Reform Committee, Special Report: Rape and Other Sexual Offences (Government Printer, Adelaide, 1976) at para 15.9; Victoria, Law Reform Commissioner, Rape Prosecutions (Court Procedures and Rules of Evidence) (Report 5, 1976) at para 54-57, 61; New South Wales, Department of the Attorney General and of Justice, Criminal Law Review Division, Rape and Various Other Offences: A First Report (1977) at 2-3, 32-33; G D Woods, Sexual Assault Law Reforms in New South Wales: A Commentary on the Crimes (Sexual Assault) Amendment Act 1981 and Cognate Act (New South Wales, Department of the Attorney General and of Justice, 1981) at 30; Australia, Royal Commission on Human Relationships, Final Report (Vol 5) (AGPS, Canberra, 1977) at 189-193; England and Wales, Home Office, Report of the Advisory Group on the Law of Rape (Cmnd 6352, HMSO, London, 1975). See generally J Scutt, “Admissibility of Sexual History Evidence and Allegations in Rape Cases” (1979) 53 Australian Law Journal 817; E McDonald, “Her Sexuality as Indicative of His Innocence: The Operation of New Zealand’s ‘Rape Shield’ Provision” (1994) 18 Criminal Law Journal 321; K Winters, “United States v Shaw: What Constitutes an ‘Injury’ under the Federal Rape-Shield Statute?” (1989) 43 University of Miami Law Review 947; J Osborne, “Rape Law Reform: The New Cosmetic for Canadian Women” in C SchWeber, C Feinman (eds), Criminal Justice Politics and Women: The Aftermath of Legally Mandated Change (Haworth Press, New York, 1985) at 49-64.
10. For a history of the legislative reforms in the United States, see J Marsh, A Geist and N Caplan, Rape and the Limits of Law Reform (Auburn House Publishing Co, Boston, 1982); H Galvin, “Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade” (1986) 70 Minnesota Law Review 763; D Haxton, “Rape Shield Statutes: Constitutional Despite Unconstitutional Exclusions of Evidence” (1985) Wisconsin Law Review 1219.
11. See Criminal Law (Sexual Offences) Act 1978 (Qld); Evidence Act Amendment Act 1976 (SA); Evidence Act (No 3) 1976 (Tas); Rape Offences (Proceedings) Act 1976 (Vic); Evidence Act Amendment Act 1976 (WA). In the territories, legislation restricting evidence of this kind was introduced in 1985: see Sexual Offences (Evidence and Procedure) Act 1983 (NT); Evidence (Amendment) Ordinance (No 2) 1985 (ACT). See also Sexual Offences (Amendment) Act 1976 (Eng and Wales) s 2; Criminal Law Amendment Act 1975 (Canada).
12. See Queensland, Law Reform Commission, Reform of the Law of Rape (Report 21, 1976); South Australia, Criminal Law and Penal Methods Reform Committee, Special Report: Rape and Other Sexual Offences (Government Printer, Adelaide, 1976); Tasmania, Law Reform Commission, Reducing Harassment and Embarrassment of Complainants in Rape Cases (Report 6, 1976); Victoria, Law Reform Commissioner, Rape Prosecutions (Court Procedures and Rules of Evidence) (Report 5, 1976). These reviews followed release of the report of the Home Office of England and Wales, which recommended widespread reform to the law on sexual assault (or “rape”): see England and Wales, Home Office, Report of the Advisory Group on the Law of Rape (Cmnd 6352, HMSO, London, 1975).
13. See New South Wales, Department of the Attorney General and of Justice, Criminal Law Review Division, Rape and Various Other Offences: A First Report (1977); New South Wales, Department of the Attorney General and of Justice, Criminal Law Review Division, Rape and Various Other Offences: Supplement to the First Report (1977); New South Wales, Task Force on Care for Victims of Sexual Offences, Care for Victims of Sexual Offences: Report of the Inter-Departmental Task Force (1978); New South Wales, Department of the Attorney General and of Justice, Criminal Law Review Division, Rape and Various Other Sexual Offences: A Second Report (1978); New South Wales, Women’s Advisory Council to the Premier, Position Paper on Reform of New South Wales Rape Legislation (August 1980).
14. New South Wales, Department of the Attorney General and of Justice, Criminal Law Review Division, Rape and Various Other Sexual Offences: A First Report (1977) at 33-34.
15. The proposal placed a greater restriction on evidence of sexual reputation, which was not admissible if it was directed only at proving that the complainant consented to sexual intercourse. See New South Wales, Department of the Attorney General and of Justice, Criminal Law Review Division, Rape and Various Other Sexual Offences: A First Report (1977) recommendation 20; New South Wales, Department of the Attorney General and of Justice, Criminal Law Review Division, Rape and Various Other Sexual Offences: Supplement to the First Report (1977) at 1.
16. See para 5.23-5.27.
17. NSW, Women’s Advisory Council to the Premier, Position Paper on Reform of New South Wales Rape Legislation (August 1980) proposal 8.
18. See New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4761. See also G D Woods, Sexual Assault Law Reforms in New South Wales: A Commentary on the Crimes (Sexual Assault) Amendment Act 1981 and Cognate Act (New South Wales, Department of the Attorney General and of Justice, 1981) at 30. Dr Wood’s commentary was prepared in order to provide assistance in the interpretation and application of the new reforms introduced by the Crimes (Sexual Assault) Amendment Act 1981 (NSW).
19. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4763-4764 and Legislative Council, 8 April 1981 at 5456; G D Woods, Sexual Assault Law Reforms in New South Wales: A Commentary on the Crimes (Sexual Assault) Amendment Act 1981 and Cognate Act (New South Wales, Department of the Attorney General and of Justice, 1981) at 32.
20. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4763-4764 and Legislative Council, 8 April 1981 at 5456; G D Woods, Sexual Assault Law Reforms in New South Wales: A Commentary on the Crimes (Sexual Assault) Amendment Act 1981 and Cognate Act (New South Wales, Department of the Attorney General and of Justice, 1981) at 32. See also R v M (1993) 67 A Crim R 549 (NSW CCA).
21. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4761.
22. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 8 April 1981 at 5456; G D Woods, Sexual Assault Law Reforms in New South Wales: A Commentary on the Crimes (Sexual Assault) Amendment Act 1981 and Cognate Act (New South Wales, Department of the Attorney General and of Justice, 1981) at 2. See also the commentary on the formulation proposed by the Women’s Advisory Council, which formulation was adopted in substance in s 409B: New South Wales, Women’s Advisory Council to the Premier, Position Paper on Reform of New South Wales Rape Legislation (August 1980) at 9.
23. Crimes (Personal and Family Violence) Amendment Act 1987 (NSW) Sch 3[1] and Sch 3[8]; Crimes (Amendment) Act 1989 (NSW) Sch 1[1] and Sch [9].
24. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 29 October 1987 at 15466. See also New South Wales, Child Sexual Assault Taskforce, Report of the New South Wales Child Sexual Assault Taskforce (1985).
