5.1 This Chapter examines the legislation in other common law jurisdictions which restricts evidence of a complainant’s sexual experience and reputation. In Chapter 3, it was noted that the introduction of this kind of legislation occurred almost simultaneously throughout the common law world, largely due to the efforts of the women’s movement to overcome sexist practices in the law’s treatment of rape. Jurisdictions adopted various formulations in their legislation and most of these have been controversial at some time. It is useful to compare the experiences in the operation of legislation in these other jurisdictions with the experiences in New South Wales. In particular, it is worth noting how legislation in those jurisdictions has balanced the interests of the accused in a fair trial with the interests of the complainant to be protected from distressing cross-examination. This comparison reveals that New South Wales is now the only jurisdiction which continues to restrict sexual experience evidence by the imposition of inflexible rules.
AUSTRALIAN JURISDICTIONS
5.2 Every Australian jurisdiction has legislation which limits the admissibility of evidence of sexual experience and reputation in some way.1 Except for New South Wales, all jurisdictions adopt, in various forms, a discretionary approach to determining the admissibility of sexual experience evidence. That is, the trial judge has a discretion to admit material relating to the complainant’s sexual experience if it is considered sufficiently relevant to the individual case.
5.3 In all Australian jurisdictions except the Northern Territory, legislation absolutely prohibits the admission of evidence of a complainant’s sexual reputation (or, as it is termed in some provisions, evidence of general reputation with respect to chastity).2 In the Northern Territory, legislation provides that such evidence may not be elicited or led except with the leave of the court.3 The terms “sexual reputation” and “general reputation with respect to chastity” are not legislatively defined in any jurisdiction.
5.4 In all jurisdictions except New South Wales, legislation provides that evidence of the complainant’s sexual experience, or “sexual activities”,4 is not admissible except with leave of the court. In most jurisdictions, this limitation is drafted to apply only to evidence of sexual experience or activity, not to a lack of experience or activity. In Tasmania5 (and in New South Wales), the legislative restriction expressly extends to evidence revealing a lack of sexual experience.
5.5 In Tasmania, Western Australia, and Victoria, the legislative restriction on the admissibility of sexual experience evidence applies both to the complainant’s sexual experience with the accused and with other people. In contrast, the legislative restrictions in Queensland, the Australian Capital Territory and the Northern Territory are stated to apply only to evidence of the complainant’s sexual experience with people other than the accused and consequently do not restrict the admissibility of evidence of the complainant’s sexual experience with the accused. The South Australian legislation restricts the admissibility of evidence of the complainant’s sexual activities “other than recent sexual activities with the accused”.
5.6 In Western Australia, legislative restrictions on the admissibility of evidence of sexual experience and sexual reputation apply only to the accused, not to the prosecution.6
5.7 The legislation in every jurisdiction (other than New South Wales) sets down certain conditions which must be met before the trial judge may grant leave to admit evidence of a complainant’s sexual experience. For example, the South Australian legislation stipulates that the judge must not grant leave to admit such evidence unless satisfied that it:
(a) is of substantial probative value; or
(b) would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim, and its admission is required in the interests of justice.7
5.8 Similarly, the Victorian legislation requires that the court shall not grant leave to admit sexual experience evidence unless:
it is satisfied that the evidence has substantial relevance to facts in issue or is proper matter for cross-examination as to credit.8
5.9 In other jurisdictions, the legislation requires that the judge shall not grant leave unless satisfied that the evidence in question:
has substantial relevance to the facts in issue, and the probative value of the evidence outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.9
5.10 In the Australian Capital Territory, the legislation states that a judge must not grant leave unless satisfied that a refusal to admit the evidence would prejudice the fair trial of the accused.10
5.11 In Victoria, Queensland and the Northern Territory, the legislation contains an additional express limitation on the exercise of the judge’s discretion to admit sexual experience evidence. In these jurisdictions, the legislation provides that sexual experience evidence shall not be regarded:
5.12 This provision is a direct response to the old common law practices of admitting sexual experience evidence. At common law, as we noted in Chapter 3, evidence that a complainant had had previous sexual experience was admissible for the purposes of inferring that, simply because she was sexually active, she was less worthy of belief or was more likely to consent to sexual intercourse. The legislation in these three jurisdictions attempts to put an end to the common law practices by prohibiting the admission of sexual experience evidence for the purpose of making a general inference about the complainant’s character based solely on the fact that she has had previous sexual experience.
5.13 In addition, the Victorian legislation contains particularly detailed procedural requirements which must be followed in order to apply for the court’s leave to admit sexual experience evidence. Where counsel seeks to introduce such evidence through cross-examination of the complainant, counsel must make an application in writing. The written application must be given to the Director of Public Prosecutions at least 14 days before the date fixed for the commencement of the trial, or, in the case of a committal proceeding, on or before the committal mention date. The application must set out the initial questions sought to be asked of the complainant, the scope of the questioning, and how the evidence has substantial relevance to facts in issue or is a proper matter for cross-examination as to credit.12 The court may hear an application to cross-examine even if it is made less than 14 days before the commencement of the trial, provided there are exceptional circumstances for doing so. The court may also waive the requirement that an application be made in writing, provided again that there are exceptional circumstances. The legislation does not otherwise specify what sanctions, if any, may be imposed for a failure to follow these procedural requirements.
5.14 At the Federal level, it has been recommended that the national model criminal code include a provision regulating the admissibility of evidence of a complainant’s sexual experience. It was proposed that a provision to this effect should allow a general judicial discretion to admit evidence of sexual experience and should be drafted in terms similar to the Victorian model.13
Empirical studies
5.15 A number of empirical studies have been conducted of the legislation restricting evidence of sexual experience and reputation in Victoria and Tasmania.
Victoria
5.16 The Law Reform Commission of Victoria carried out an empirical study of all rape prosecutions initiated in Victoria from 1988 to 1989.14 As part of this study, the Commission examined transcripts for 40 trials15 and 62 committals in order to evaluate the operation of s 37A of the Evidence Act 1958 (Vic).16 At the time in which the study was conducted, s 37A operated to restrict the admissibility of evidence of a complainant’s sexual experience with other people, but did not restrict the admissibility of evidence of a complainant’s sexual experience with the accused.
5.17 It was found that applications to admit evidence under s 37A were made in relation to 31% of the complainants who gave evidence. Leave to admit evidence was granted in 75% of those applications. The most common circumstance in which sexual experience evidence was admitted under s 37A was where the complainant was, or was alleged to be, a sex worker. Following these findings, the Commission made recommendations for judicial and advocate education about issues relating to the conduct and control of cross-examination, and the formulation of a written set of ethical rules for courtroom behaviour.17 The Commission did not consider that it was appropriate to attempt further legislative regulation of the cross-examination of complainants, on the basis that matters which are appropriate for cross-examination will vary from case to case and it would therefore be impossible to formulate in legislation all the circumstances in which sexual experience evidence should be admissible.
5.18 A subsequent study was carried out in Victoria which included a review of prosecution case files for rape cases in 1992 and 1993.18 Transcripts contained in those files were examined for the purpose of assessing the operation of s 37A. It was found that sexual experience evidence was admitted in a significant number of committal and trial proceedings: at committal, approximately 65% of all complainants were questioned about their sexual experience; and at trial, approximately 70% of complainants were questioned about their sexual experience. It was concluded that the courts routinely granted leave to raise evidence of the complainant’s sexual experience with the accused, and were generally reluctant to refuse an application to admit sexual experience evidence in other situations if it was described as being critical to the defence case. Consequently, it was recommended that the procedures for making an application for leave under s 37A be tightened by requiring counsel to make an application in writing, setting out the ways in which the material sought to be introduced is substantially relevant. This recommendation was subsequently adopted into the Victorian legislation. It was also recommended that there be greater judicial and advocate education.
5.19 This study does not provide a detailed qualitative evaluation of the situations in which sexual experience evidence was considered sufficiently relevant to be admitted. Its conclusions were essentially based on what was regarded as the high percentage of complainants being questioned on sexual experience. In the absence of an analysis of the situations in which sexual experience evidence was admitted, it is difficult to assess whether the judicial discretion was generally exercised appropriately or inappropriately.
Tasmania
5.20 In Tasmania, a study was conducted of transcripts of proceedings for major sexual offences in the period from 1987 to 1994.19 This study followed significant amendments to the Tasmanian legislation in 1987, which aimed (amongst other things) to place tighter controls on the exercise of the judicial discretion to admit sexual experience evidence.20
5.21 The study attempted a detailed qualitative analysis of the types of situations in which evidence of sexual experience and reputation was admitted in sexual offence proceedings in Tasmania. The study found that the overall rate at which sexual conduct evidence was raised had not appeared to have altered substantially since the enactment of the 1987 reforms. Applications to admit evidence of the complainant’s sexual conduct with the accused were invariably successful. In 45 of the 72 cases in which sexual experience evidence was introduced, no application for leave to introduce it was made. The principal grounds of relevance for evidence raised on application were evidence explaining physical injury or the presence of semen, evidence supporting an allegation of fabrication, such as evidence of a prior allegation of abuse, evidence relating to the issue of consent or belief in consent, and evidence raised to dispel the court’s possible expectations about the complainant, such as her sexual naivety or preferences. It was also found that evidence of sexual reputation was raised in a small number of cases.
5.22 The study concluded that the legislation had been largely successful in eliminating evidence of sexual reputation, although courts sometimes had difficulty in distinguishing accurately between evidence of sexual reputation and sexual experience. Consequently, it was recommended that “sexual reputation” be defined in the legislation. It was further concluded that the legislation was strong and capable of producing the results sought by its enactment, although it could be made more effective by greater clarification of some of its terms, such as the term “substantial relevance”. The recommendations which were made in the study maintained the basic structure and approach of the provision, but made suggestions to clarify some aspects, strengthen others, and promote increased vigilance with respect to its application.
UNITED STATES OF AMERICA
5.23 Legislative provisions restricting evidence of sexual reputation and experience exist in 48 American states and also form part of the Federal Rules of Evidence.21 The provisions vary widely in their approaches to regulating the admissibility of such evidence, but may generally be divided between those which retain some form of judicial discretion to admit relevant evidence, and those which, like the New South Wales provision, adopt the Michigan model of automatically excluding evidence which does not fall within one of a list of categories. Since the New South Wales legislation is based on the Michigan model, it is useful to refer in particular to the experiences in that American state.
Michigan
5.24 As we stated, the Michigan provision is similar to s 409B in that it does not contain a judicial discretion but instead seeks to regulate the admission of sexual experience evidence by the imposition of absolute rules. The Michigan provision (and others which follow its approach) has been challenged in the courts from time to time on the basis that it infringes the right of an accused to a fair trial, and is therefore unconstitutional under the American Bill of Rights. Judges have noted that there is potential for the provision to deny an accused a fair trial if it is interpreted in a way which automatically excludes relevant evidence falling outside one of the listed categories. However, contrary to the Canadian experience, the American courts have not struck down the Michigan legislation as unconstitutional. Various strategies have been adopted by the courts to admit relevant evidence falling outside the listed exceptions in a way to avoid a finding that the legislation as a whole infringes on the right of the accused to a fair trial.
5.25 One strategy has been to rely on legislative history and policy considerations in order to admit evidence of sexual experience which, on its face, is excluded by the provision. For example, evidence has been admitted on the basis that, considering the purposes of the legislation, there could be no rational ground for excluding it and that its exclusion had not been intended by the legislature, despite the clear prohibition set out in the legislation.22 The Commission does not consider this to be an appropriate approach.
5.26 Another strategy adopted by the courts has been to determine that the legislation does not operate in an individual case because if it did, it would exclude evidence of such relevance to the facts of the case that it would deny the accused a fair trial, in violation of the Bill of Rights.23 In this way, it could be argued that the courts have introduced a “defacto” discretion into the legislation. If evidence of sexual experience is considered to be of significant probative value but is excluded by the legislation, then the legislation may simply not be applied to that particular case.
5.27 In 1982, a study was published which examined the effect on the conduct of sexual assault trials of the legislative reforms on sexual assault, including the provision dealing with evidence of sexual experience and reputation.24 The study was based on interviews with rape crisis counsellors and criminal justice officials, as well as on crime statistics for Michigan for before and after the introduction of the reforms. Based largely on the responses from those people interviewed, the study concluded that the provision restricting sexual experience evidence had substantially reduced courtroom investigation into complainants’ sexual lives, although some such evidence continued to be admitted through innuendo or despite the legislative prohibitions. Moreover, almost half the people interviewed considered that the restrictions on sexual experience evidence improved the chance of the prosecution obtaining a conviction.25 However, an increase in rape reporting rates was generally not considered by interviewees to be a result of the legislative reforms. The study did not examine the types of situations in which sexual experience evidence was admitted, and did not consider the issue of whether evidence was ever unfairly excluded, that is, in a way which some considered caused injustice to the accused.
CANADA
5.28 The Canadian legislation relating to evidence of sexual experience and reputation has undergone substantive amendments on three occasions.
5.29 In 1976, the Canadian Parliament introduced legislation which aimed to restrict the admissibility of evidence of sexual experience and reputation in sexual offence proceedings.26 The legislation gave trial judges a discretion to admit such evidence if they were satisfied that:
the weight of the evidence is such that to exclude it would prevent the making of a just determination of an issue of fact in the proceedings, including the credibility of the complainant.27
5.30 The application of this legislation by the courts received strong criticism.28 The provision was said to have failed to give any greater protection to complainants against courtroom trauma. Indeed, it was criticised for providing even less protection than at common law. This was because the courts had interpreted the legislation as permitting the accused, where leave was granted, to lead independent evidence relating to the complainant’s sexual experience to contradict the complainant’s testimony on matters relating solely to credit.29 At common law, such evidence would not generally have been admissible.30 Moreover, it was held that, under the legislation, a complainant was compellable to give evidence about her sexual experience as part of an application to the trial judge for leave to admit such evidence at the trial.31 Arguably, to compel a complainant to speak about her sexual experience in order to determine whether her testimony amounted to admissible evidence defeated the purpose of the legislation.
5.31 In light of the perceived failings of the 1976 provision, legislative reforms were introduced in 1982.32 These reforms brought significant changes to the law relating to sexual assault generally. The old provision relating to sexual history evidence was repealed and was replaced by s 246.6 and 246.7 of the Canadian Criminal Code (later renumbered as s 276 and 277). These provisions prohibited the admission of sexual reputation evidence for the purpose of challenging or supporting the complainant’s credibility, and limited the circumstances in which evidence of a complainant’s sexual activities was admissible. Like the New South Wales legislation, the new provisions adopted the Michigan model for restricting the admissibility of sexual experience evidence. That is, they listed specific circumstances in which evidence of a complainant’s sexual activities were admissible, and left no judicial discretion to admit such evidence outside of these circumstances.
5.32 In 1991, the majority of the Supreme Court of Canada ruled that s 276 (formerly s 246.6), the provision restricting the admissibility of sexual activity evidence, was unconstitutional and should be struck down.33 The majority of the Court found that the provision infringed the right of an accused person to a fair trial (as enshrined in the Canadian Charter of Rights and Freedoms)34 because it absolutely excluded evidence which did not fall within one of the listed categories, without any means of evaluating the importance of that evidence to the individual case. This had the effect that evidence which may be highly relevant to a case would be automatically excluded if it did not fall within one of the categories. On the other hand, the Court found that s 277, the provision prohibiting the admission of sexual reputation evidence, did not infringe the right of an accused to a fair trial and consequently did not violate the Charter of Rights and Freedoms.
5.33 As a result of the Supreme Court’s ruling, the provisions restricting the admissibility of sexual history evidence were substantially amended in 1992 to reintroduce a judicial discretion.35 The current provisions are set out in s 276 and 277 of the Canadian Criminal Code. In summary, s 277 prohibits the admission of evidence of sexual reputation for the purpose of challenging or supporting the complainant’s credibility. “Sexual reputation” is not defined. Section 276 deals with evidence of sexual activity and applies only to the accused, not the prosecution. It provides that evidence of the complainant’s sexual activity, whether with the accused or with any other person, is inadmissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to sexual activity with the accused, or is less worthy of belief. Where the evidence is sought to be admitted for a purpose other than supporting these inferences, the judge may grant leave to admit it if it is evidence of specific instances of sexual activity, is relevant to an issue at trial, and has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice. The legislation sets out a list of factors which the judge must consider in determining whether to admit evidence of sexual activity, such as the potential prejudice to the complainant’s personal dignity and right of privacy, and the right of the accused to make a full answer and defence.
5.34 In addition, s 276.1 contains detailed procedural provisions relating to the making and determination of applications to admit evidence of sexual activity. These provisions regulate the form and content of an application, and require that the prosecution generally be given seven days’ notice of the application. They also stipulate that a complainant is not compellable to give evidence in the hearing of an application to admit evidence of sexual activity.
5.35 According to some people, there is a risk that s 276, as amended, may continue to deny an accused the right to a fair trial.36 Unfairness is said potentially to result from the prohibition in s 276(1) against evidence of sexual activity where such evidence is used to support an inference that a complainant is less worthy of belief or is more likely to have consented. It is argued that, because of this prohibition, evidence of sexual activity will never be admissible where it is relates to the issue of consent or to the credibility of the complainant, even if it is highly relevant to these issues. In opposing this argument, other people have argued that s 276 does not absolutely exclude evidence which is relevant to consent or to the complainant’s credibility.37 Instead, it is suggested that the section is directed at overcoming the old common law practices which allowed general inferences to be made about a woman’s trustworthiness or likelihood of consenting based solely on the fact that she was sexually active. It is argued that evidence of sexual activity which does not rely on these general inferences for its relevance to the issues of consent or credibility does not come within this general prohibition in s 276 and therefore may be admissible if it is sufficiently important to the case. This matter is still to be determined by the Supreme Court of Canada.38
NEW ZEALAND
5.36 Section 23A of the Evidence Act 1908 (New Zealand) provides that evidence relating to a complainant’s sexual reputation or sexual experience with a person other than the accused shall not be admitted unless by leave of the trial judge. The judge must not grant leave unless satisfied that the evidence:
Evidence is not to be regarded as having direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.39
5.37 This section has been interpreted as requiring a high degree of relevance before leave will be granted to admit evidence. It has been held that much evidence going only to the credit of the complainant will be excluded because it has only an indirect relevance to the facts in issue.40 It has also been held that evidence of the complainant’s “promiscuity” has only an indirect relevance to the belief of the accused in her consent, and is therefore inadmissible under s 23A.41
5.38 In 1997, the New Zealand Law Commission published a discussion paper on the laws of evidence relating to character and credibility generally.42 The paper included an examination of s 23A of the Evidence Act 1908 (NZ).43 The Law Commission found that s 23A had avoided any serious problems in its operation. It considered that the provision did not unreasonably restrict the right of the accused to present a defence and examine the complainant, because sexual experience evidence could still be admitted if it could be shown to be in the interests of justice to do so. It therefore did not infringe the rights of the accused as provided for in s 25 of the Bill of Rights Act 1990 (NZ).
5.39 The Law Commission did find that there were isolated cases where the courts appeared to have admitted sexual experience evidence inappropriately by giving inadequate weight to the requirement in s 23A for a high degree of relevance. Elsewhere, the operation of the section has been criticised for an apparent absence of clear principles to guide the exercise of the judicial discretion in granting leave, and for a reliance by some judges on myths and stereotypes about women in the exercise of that discretion.44
5.40 The Law Commission made two proposals to strengthen the protection in the legislation for the complainant. First, it proposed that s 23A be amended to include an absolute prohibition on evidence of sexual reputation, where such evidence was said to be relevant only to the truthfulness of the complainant or the consent of the complainant. Secondly, it was tentatively proposed that the restrictions on admissibility of evidence in s 23A should apply equally to evidence of the complainant’s sexual experience with the accused as with other people.
ENGLAND AND WALES
5.41 Section 2 of the Sexual Offences (Amendment) Act 1976 (Eng and Wales) applies to trials for a “rape offence”. It provides that an accused must not introduce evidence of a complainant’s sexual experience with a person other than the accused except with leave of the judge. The judge must not grant leave unless satisfied that “it would be unfair to that defendant to refuse to allow the evidence”.
5.42 This section has been interpreted as allowing evidence of sexual experience where it might reasonably lead the jury to take a different view of the complainant’s evidence from that which it might take if the evidence were not admitted.45 It has been said that if the evidence is shown to be relevant to an issue in the trial, rather than merely to credit, it will likely be admitted.46
5.43 The operation of s 2 has been criticised by some people for setting too low a standard for the admissibility of sexual experience evidence.47 In 1984, as part of a review on the law relating to sexual offences, the Criminal Law Revision Committee assessed the operation of s 2. The Committee noted the criticism from members of the public, in particular from women’s organisations, that s 2 was proving ineffective in protecting complainants’ privacy and that judges frequently granted leave to admit sexual experience evidence. The Committee took the view, however, that there was no ground for claiming that the spirit and purpose of s 2 was being ignored. The Committee considered that there were situations in which evidence of a complainant’s sexual experience was relevant and that the frequency with which leave was granted to admit such evidence was no indication that judges granted leave in undeserving cases. It was argued that counsel may not make applications for leave to admit sexual experience evidence unless they believed that they had a strong case for arguing that leave should be granted.
5.44 The Committee concluded that there was no need to amend the legislation to provide greater protection to complainants. It did recommend, however, that s 2 be amended to apply equally to evidence of a complainant’s previous sexual experience with the accused.
5.45 More recently, s 2 of the Sexual Offences (Amendment) Act 1976 (Eng and Wales) was reviewed in June 1998 by an interdepartmental working group as part of a report on the treatment of vulnerable or intimidated witnesses in the criminal justice system.48 In contrast to the views of the Criminal Law Revision Committee, the Working Group took the view that evidence of sexual experience is admitted too frequently by the courts and that s 2 is not achieving its purpose of protecting complainants. The grounds on which this view is based are not set out in any great detail in the Working Group’s report. Reference is made to anecdotal evidence provided by the public, in particular by Rape Crisis Centres, of distressing cross-examination of some women in court. As well, the Working Group refers to a study of 50 rape trials in 1987 which found that leave to admit sexual experience evidence was granted for 75% of applications made.49 The Working Group concluded that the existing law restricting sexual experience evidence was not achieving its purpose. The Working Group did not, however, address the argument put forward by the Criminal Law Revision Committee that the percentage of applications which are successful is not in itself an indication that leave to admit such evidence is routinely granted in undeserving cases.
5.46 The Working Group recommended that s 2 be amended to set out clearly when sexual experience may be admitted. The New South Wales legislation was put forward as a possible model. In the end, however, the Working Group favoured amendments to s 2 which followed the approach taken by the Scottish legislation.50 This legislation sets out in considerable detail the situations in which sexual experience evidence is admissible, but also includes a discretionary provision to allow evidence in other situations where it would be contrary to the interests of justice to exclude it. It was noted by the Working Group that to remove a judicial discretion altogether from the legislation may exclude evidence unfairly and could lead to the wrongful conviction of innocent people.
5.47 Finally, a proposal was made in Parliament in March 1998 to amend s 2 of the Sexual Offences (Amendment) Act 1976 (Eng and Wales).51 One of the proposed amendments would have the effect of expanding the application of the section to other sexual offences in addition to “rape offences”. The second of the proposed amendments would apply in situations where the judge grants leave to the accused to introduce evidence of the complainant’s sexual experience. Where leave is granted, the proposed amendment would permit evidence to be introduced that the accused has committed, been convicted of, or charged with a sexual offence in the past.
IRELAND
5.48 Legislation in Ireland provides that, except with the leave of the judge, no question can be asked in cross-examination and no evidence may be adduced about any sexual experience of a complainant with any person, other than that to which the current charge relates.52
5.49 Section 3 has been reviewed on a number of occasions. In 1988, the Irish Law Reform Commission found that it would be premature to make any conclusions about the way the section was operating in practice, although there was material to suggest that it was being under-utilised.53 The Working Party on the Legal and Judicial Process54 has recommended that, amongst other things, s 3 be amended to codify the situations in which evidence of the complainant’s sexual experience was admissible and that where such evidence was admitted to attack the complainant’s credibility, evidence of the accused’s past record or sexual history should also be admissible. The Working Party also recommended that provision should be made to allow complainants to be legally represented, at least in an application by defence counsel for leave to introduce evidence concerning the complainant’s sexual experience. Issues relating to the admissibility of evidence of sexual experience are currently under review by the Irish Department of Justice, Equality and Law Reform.55
SCOTLAND
5.50 Scottish legislation generally prohibits evidence which shows or tends to show that the complainant is not of good character in relation to sexual matters, is a prostitute, or has engaged in sexual behaviour with any person.56 The court may admit such evidence on application where it is designed to explain or rebut evidence adduced otherwise than by the accused, or relates to sexual behaviour which took place on the same occasion as the alleged incident, or is relevant to the defence of incrimination, or where “it would be contrary to the interests of justice to exclude the questioning or evidence”. These restrictions do not apply to evidence sought to be admitted by the Crown.
5.51 The Scottish legislation is based on recommendations of the Scottish Law Commission.57 The Law Commission recommended that the legislation should include a general provision to admit evidence of sexual behaviour where it is in the interests of justice to do so. A provision to this effect was considered necessary to avoid the risk of injustice, since it would not be possible to foresee every circumstance in which evidence of sexual behaviour may have real relevance to a case.58
5.52 An empirical study was conducted of the operation of the Scottish legislation over a three and a half year period, from 1987 to 1990.59 The study found that the legislation had been partly successful in excluding undue investigation of complainants’ sexual lives. Blatant attacks on the complainant’s sexual character had become rare, as had the practice of suggesting that the complainant was a liar because he or she was promiscuous. The procedure for requiring leave had also provided a means of questioning the defence about their proposed use of evidence and for placing limits on their questioning.
5.53 However, the study also found that evidence concerning sexual conduct was admitted in about half of the sexual offence trials involving juries, and that some of the evidence admitted was of a type which the legislation had sought to exclude. It was also found that some defence counsel could overcome the restrictions of the legislation by asking questions which did not directly relate to the complainant’s sexual activity, but which carried with them innuendos about his or her sexual character. The study concluded60 by offering some possible remedies for the problems it identified in the current operation of the legislation. These included guidelines encouraging the prosecution to take a more proactive role in intervening where questions of sexual conduct arose in trials, greater public and jury education, and greater restrictions in the legislation on the exercise of judicial discretion in determining the admissibility of evidence of sexual conduct, such as a requirement that the court balance the probative value of the proposed evidence against its prejudicial
Footnotes
1. See Evidence Act 1958 (Vic) s 37A; Evidence Act 1910 (Tas) s 102A; Evidence Act 1929 (SA) s 34i; Evidence Act 1906 (WA) s 36A, 36B, 36BA, 36BC; Criminal Law (Sexual Offences) Act 1978 (Qld) s 4; Evidence Act 1971 (ACT) s 76G; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4-5. The Queensland legislation was to have been repealed by the Criminal Code Act 1995 (Qld) s 460(1), but the 1995 Criminal Code was never proclaimed and was eventually repealed in 1997.
2. Evidence Act 1958 (Vic) s 37A(1); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(1); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1)(a).
3. Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1)(a).
4. Evidence Act 1958 (Vic) s 37A(2); Evidence Act 1929 (SA) s 34i(1)(b); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(2); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1)(b).
5. In the Tasmanian legislation, the term “sexual experience” is defined to include a lack of experience: Evidence Act 1910 (Tas) s 102A(3).
6. Evidence Act 1906 (WA) s 36B, 36BA, 36BC.
7. Evidence Act 1929 (SA) s 34i(2). The provisions in Queensland and the Northern Territory are drafted in similar terms but require only that the evidence has “substantial relevance” to the facts in issue or is proper matter for cross-examination as to credit, without reference in the legislation to consideration of the interests of justice: see Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(3); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(2). Terms such as “substantial probative value” and “likely materially to impair” are used in a number of provision under the Evidence Act 1995 (NSW) in relation to the admissibility of evidence: see, for example, s 103.
8. Evidence Act 1958 (Vic) s 37A(3)(a). If the evidence is sought to be admitted as relevant to the sentencing of the accused rather than to the determination of the guilt or innocence of the accused, then it is sufficient to admit such evidence if it has “substantial relevance” to the issue of the appropriate sentence to be imposed: s 37A(3)(b).
9. Evidence Act 1906 (WA) s 36BC(2). See also Evidence Act 1910 (Tas) s 102(2).
10. Evidence Act 1971 (ACT) s 76G(3)(b).
11. Evidence Act 1958 (Vic) s 37A(4); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(4); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(2).
12. Evidence Act 1958 (Vic) s 37A(5)(aa).
13. Model Criminal Code Officers Committee of the Standing Committee of Attorneys General, Model Criminal Code, Chapter 5: Sexual Offences Against the Person (Discussion Paper, 1996) at 175.
14. Victoria, Law Reform Commission, Rape: Reform of Law and Procedure (Appendices to Interim Report 42, 1991) (“VLRC Report 42”).
15. These cases represented 80% of all the trials in the study.
16. See VLRC Report 42 at 101-110.
17. Victoria, Law Reform Commission, Rape: Reform of Law and Procedure, Supplementary Issues (Report 46, 1992) at 31-32.
18. Victoria, Department of Justice, Attorney General’s Legislation and Policy Branch, The Crimes (Rape) Act 1991: An Evaluation Report (Rape Law Reform Evaluation Project, Report No 2, January 1997) chap 5.
19. T Henning, Sexual Reputation and Sexual Experience Evidence in Tasmanian Proceedings Relating to Sexual Offences (Occasional Paper No 4, University of Tasmania Law School, University of Tasmania Law Press, 1996).
20. See the Evidence Amendment Act 1987 (Tas). The amendments followed a report by the Law Reform Commission of Tasmania, Report and Recommendations on Rape and Sexual Offences (Report 31, Tasmanian Government Printer, 1982).
21. For an analysis of the various American statutes, see 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; C Fishman, “Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant’s Past Sexual Behavior” (1995) 44 Catholic University Law Review 709.
22. See, for example, People v Mikula 84 Mich App 108; 269 NW 2d 195 (1978).
23. See, for example, Michigan v Lucas 500 US 145; 111 S Ct 1743; 114 L Ed 2d 205 (1991).
24. J Marsh, A Geist, N Caplan, Rape and the Limits of Law Reform (Auburn House Publishing Co, Boston, 1982).
25. Rape and the Limits of Law Reform at 44-45.
26. See Criminal Code (Canada) s 142 (repealed), introduced by the Criminal Law Amendment Act 1975 (Canada), SC 1974-75-76, c 93, s 8.
27. Criminal Code (Canada) s 142(1)(b) (repealed).
28. Canada, Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (Carswell Company Ltd, Toronto, 1982) at para 7.2-7.3. See also R v Konkin [1983] 1 SCR 388 per Wilson J (dissenting) at 396; Seaboyer v The Queen; Gayme v The Queen [1991] 2 SCR 577 per L’Heureux-Dube J (dissenting in part) at 671-674.
29. R v Forsythe [1980] 2 SCR 268.
30. See para 3.6. There are signs of relaxation of the common law rule in New South Wales: Natta v Canham (1991) 104 ALR 143 at 157-161; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 477-8; R v Hawes (1994) 35 NSWLR 294 at 301.
31. R v Forsythe [1980] 2 SCR 268.
32. Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof SC 1980-81-82-83, c 125, s 19.
33. Seaboyer v The Queen; Gayme v The Queen [1991] 2 SCR 577.
34. See s 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Under s 7, every person has the right not to be deprived of his or her liberty except in accordance with the principles of fundamental justice. It was agreed in Seaboyer v The Queen that this right included the right for an accused person to present a full and fair defence. Section 11(d) of the Charter states (among other things) that a person charged with an offence has the right to be tried according to law in a fair and public hearing.
35. SC 1992 s 2, 38.
36. See D Paciocco, “The New Rape Shield Provisions in Section 276 Should Survive the Charter Challenge” 21 CR (4th) 223 at 226. See also R v Ecker (1995) 96 CCC (3d) 161 per Lane JA (dissenting) at 194.
37. See the majority in R v Ecker (1995) 96 CCC (3d) 161. See also D Paciocco, “The New Rape Shield Provisions in Section 276 Should Survive the Charter Challenge” 21 CR (4th) 223.
38. See the decision of the Ontario Court of Appeal in R v Darrach 38 OR (3d) (1998). Leave to appeal to the Supreme Court of Canada was granted on 4 June 1998.
39. Evidence Act 1908 (NZ) s 23A(3).
40. R v McClintock [1986] 2 NZLR 99 at 104.
41. R v Daniels [1986] 2 NZLR 106.
42. New Zealand, Law Commission, Evidence Law: Character and Credibility, A Discussion Paper (Preliminary Paper 27, 1997).
43. New Zealand, Law Commission (Preliminary Paper 27) chap 11.
44. W Young, Rape Study: A Discussion of Law and Practice (Institute of Criminology, Department of Justice, Wellington, 1983) vol 1 at 134-135; E McDonald, “Her Sexuality As Indicative of His Innocence: The Operation of New Zealand’s ‘Rape Shield’ Provision” (1994) 18 Criminal Law Journal 321.
45. R v Lawrence [1977] Crim L R 492; R v Mills (1978) 68 Cr App R 327; R v Viola [1982] 3 All ER 73.
46. R v Viola [1982] 3 All ER 73.
47. J Temkin, “Sexual History Evidence — The Ravishment of Section 2” [1993] Criminal Law Review 3; Z Adler, “The Relevance of Sexual History Evidence in Rape: Problems of Subjective Interpretation” [1985] Criminal Law Review 769. See also the submissions to the Criminal Law Revision Committee, referred to in: England and Wales, Criminal Law Revision Committee, Sexual Offences (Report 15, HMSO, London, 1984) at para 2.87.
48. See England and Wales, Speaking Up for Justice (Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System, Home Office, 1998) at para 9.56-9.72.
49. See Z Adler, Rape on Trial (Routledge and Kegan Paul, London, 1987) at 73.
50. See para 5.50.
51. United Kingdom, Parliamentary Debates, House of Lords (Hansard), 19 March 1998.
52. Criminal Law (Rape) Act 1981 (Ireland) s 3; Criminal Law (Rape Amendment) Act (Ireland) s 13.
53. Ireland, Law Reform Commission, Rape and Allied Offences (Report 24, 1988) at 10-12.
54. Referred to in Ireland, Department of Justice, Equality and Law Reform, The Law on Sexual Offences: A Discussion Paper (Stationery Office, May 1998).
55. Ireland, Department of Justice, Equality and Law Reform, The Law on Sexual Offences: A Discussion Paper (Stationery Office, May 1998).
56. Criminal Procedure (Scotland) Act 1995 s 274, 275.
57. Scottish Law Commission, Evidence: Report on Evidence in Cases of Rape and Other Sexual Offences (Scot Law Com No 78, HMSO, 1983) at 30. The original provisions which followed the Law Commission’s recommendations were s 141A and 141B of the Criminal Procedure (Scotland) Act 1975, introduced by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. The current provisions are in almost identical terms to the old provisions. For a history of the introduction of legislation restricting sexual experience evidence in Scotland, see B Brown, M Burman and L Jamieson, Sex Crimes on Trial: The Use of Sexual Evidence in Scottish Courts (Edinburgh University Press, Edinburgh, 1993).
58. Evidence: Report on Evidence in Cases of Rape and Other Sexual Offences at para 5.14-5.19.
59. B Brown, M Burman, L Jamieson, Sex Crimes on Trial: The Use of Sexual Evidence in Scottish Courts (Edinburgh University Press, Edinburgh, 1993).
60. Sex Crimes on Trial: The Use of Sexual Evidence in Scottish Courts chap 12.
