CHAPTER ONE – AN INTRODUCTION TO SECTION 41
The last hundred years have witnessed extensive developments in women’s rights from suffrage, the sexual revolution of the 1960s and ultimately the legalisation of contraception and abortion. As attitudes have changed, so too has the law recognised the need for modernisation – criminalising rape within marriage and recognising men can also be victims of rape.
The law concerning the use of sexual behaviour evidence in trials has also developed with these changing attitudes, recognising that simply because a complainant consents to sexual intercourse on a previous occasion it does not follow that they were more likely to have consented to sexual intercourse on the occasion in question. It is, however, one thing for the law to recognise these essential facts but another for the law to put its principles into practise[1] and efforts to cease the humiliation of complainants in sexual offence trials with extensive, unnecessary and irrelevant questioning on their sexual behaviour have been slow but gradual.
Public concern over the conduct of cases involving sexual offences led to the Heilbron Report (1975) (Cmnd 6352) which considered and proposed reforms for rape trials. The Heilbron Report treated previous sexual association between the complainant and the accused as potentially relevant but advised that in general the previous sexual history of the complainant with other men was irrelevant and ought not to be introduced.
Following the Heilbron Report, section 2 of the Sexual Offences (Amendment) Act 1976 was enacted to restrict evidence or cross examination of a complainant’s sexual experience with a person other than the accused. This was a restriction, rather than a prohibition, with section 2(2) providing that the judge shall give leave “if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.”
The Act did not, however, address cross examination or evidence of a complainant’s sexual experience with the accused despite the concerns raised in the Heilbron Report. This failure, coupled with the broad discretion afforded to the trial judge, did not prevent the continued barrage of previous sexual behaviour evidence being adduced in trials, often with the aim of undermining a complainant’s credibility.
The obvious risk of such evidence, and the use which a jury may make of it, was encapsulated by the ‘twin myths’ dicta in the Canadian case of R v Seaboyer [1991] 2 SCR 577:
“myths that unchaste women were more likely to consent to sexual intercourse and, in any event, were less worthy of belief. These twin myths are now discredited. The fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with the accused. Nor does it make her a liar.”
Recognising the fallacy of the ‘twin myths’, Lord Steyn, in R v A (no 2) [2002] 1 A.C. 45, observed that:
“such generalised, stereotyped and unfounded prejudices ought to have no place in our legal system. But even in the very recent past such defensive strategies were habitually employed. It resulted in an absurdly low conviction rate in rape cases. It also inflicted unacceptable humiliation on complainants in rape cases.”
The need for reform may have taken a further 23 years but more extensive restrictions on the use of evidence or questions about a complainant’s sexual history were finally introduced by section 41 of the Youth Justice and Criminal Evidence Act 1999 which came into force on the 27th July 1999. Section 41 replaced the discretionary regime under s.2 of the Sexual Offences (Amendment) Act 1976 with a general exclusionary rule subject to leave of the trial judge and satisfying a restrictive set of exceptions. The restrictions aimed to debunk the ‘twin myths’ by balancing the need to protect complainants from humiliating, demeaning lines of cross examination with the defendant’s right to a fair trial. Crucially, s.41 treats a complainant’s sexual experience with the defendant the same as with other men but fairness is the underlying touchstone; a defendant should not be deprived of the opportunity to put relevant questions if exclusion of such questions could endanger the fairness of the trial.
Section 41 was considered extensively in R v A (no 2) [2002] 1 A.C. 45 with unanimous views expressed as to the need for restrictions on questioning and evidence regarding sexual behaviour of complainants. Lord Hope observed:
“the placing of restrictions on evidence or questions about the sexual behaviour of complainants in proceedings for sexual offences serves a legitimate aim. The prevalence of sexual offences, especially those involving rape, which are not reported to the prosecuting authorities indicates a marked reluctance on the part of complainants to submit to the process of giving evidence at any trial. The rule of law requires that those who commit criminal acts should be brought to justice. Its enforcement is impaired if the system which the law provides for bringing such cases to trial does not protect the essential witnesses from unnecessary humiliation or distress…..The law fails in its purpose if those who commit sexual offences are not brought to trial because the protection which is provided against unnecessary distress and humiliation of witnesses is inadequate. So too if evidence or questions are permitted at trial which lie so close to the margin between what is relevant and permissible and what is irrelevant and impermissible as to risk deflecting juries from the true issues in the case. The high rate of acquittals in rape cases before s.41 was introduced suggests that juries are not immune from temptation, and that they are quite likely to draw inference from evidence about a complainant’s sexual behaviour on occasions other than that of the alleged rape which the law now recognises they should not draw.”
Similarly, Lord Hutton described there being three principal objectives of the law where the offence charged was rape – that a defendant should not be convicted of the crime with which he is charged when he has not committed it; that a defendant who is guilty of the crime with which he is charged should be convicted; and to ensure that a woman who complains she has been raped is treated with dignity in court and given protection against cross examination which invades her privacy unnecessarily and which subjects her to humiliating questioning and accusations which are irrelevant to the charge against the defendant. He recognised that evidence of the sexual history of the complainant had the potential to distort the course of the trial and divert the jury from the triable issue.
The question certified by the Court of Appeal which gave leave to appeal to the House of Lords in R v A (No. 2) and its detailed consideration was: “May a sexual relationship between a defendant and complainant be relevant to the issue of consent so as to render its exclusion under section 41 of the Youth Justice and Criminal Evidence Act 1999 a contravention of the defendant’s right to a fair trial?” In giving judgment Lord Steyn observed:
“as a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent. It is a species of prospectant evidence which may throw light on the complainant’s state of mind. It cannot, of course, prove that she consented on the occasion in question. Relevance and sufficiency of proof are different things.”
The interpretative obligation on Courts under s.3(1) of the Human Rights Act 1998 requires Courts, where possible, to read primary legislation in a way which is compatible with Convention rights. The Court concluded that section 41 must be read as permitting the admission of evidence or questioning which relates to a relevant issue in the case and which the trial judge considers is necessary to make the trial a fair one. This, therefore, lessened some of the constrictions on adducing sexual behaviour evidence without returning to the breadth of the former regime under s.2.
So has the introduction of s.41 had the desired effect of increasing conviction rates and restricting the use of sexual behaviour evidence in trials involving sexual offences? Convictions in rape trials remain woefully low consistently sitting around the 7% mark and so in this respect s.41 has had limited impact. However, while public perception may be that applications under s.41 are still being made and granted too frequently the statistics do suggest s.41 is achieving its aim of reducing the use of sexual behaviour evidence in trials and practitioners are heeding the warnings from established case law that s.41 applications involving sexual behaviour with a third party will rarely be relevant. In December 2017 the Ministry of Justice published a paper titled “Limiting the use of Complainants’ Sexual History in Sex Cases” which examined the frequency and outcome of applications under section 41 through an analysis of 309 rape cases finalised in 2016. The paper found that s.41 applications were made in 40 cases (13%) of which the applications were granted in whole, or in part, by the court in 25 cases (8%). It is, therefore, clear no evidence pertaining to a complainant’s sexual history was admitted in the vast majority of cases (92%). Of note 14 of the applications were opposed in their entirety by the prosecution (35%) while in 12 cases (30%) the prosecution did not oppose all, or part, of the s.41 application.
An independent review into s.41 commissioned by the Criminal Bar Association in October 2017 following the judgment in R v Evans [2016] EWCA Crim 452 surveyed responses from 140 practising criminal barristers. There was widespread consensus that restrictions on previous sexual behaviour evidence were warranted to eliminate questioning based on harmful stereotypes and myths but none of the respondents felt s.41 should be reformed to make it more restrictive. As ever the gap between the law and public perception raised concern, with many respondents observing that the public’s lack of understanding of section 41 and how it applies, coupled with misreporting in the media of high-profile cases, could deter complainants from coming forward. It appeared the overlap and interplay between when a section 41 application should be made as against when a bad character application should be made presented real challenges for both practitioners and judges – a matter which is considered in detail in chapter 8.
What was plain from the review, however, was that section 41 applications were not being made lightly: with some applications being considered but not made and those that were being made were carefully scrutinised by prosecutors and judges. This is reflected in the statistics that show section 41 applications are not being made or granted as a matter of routine as some may fear.
Section 41 represents just one aspect of efforts by law makers to ensure the justice system does not re-traumatise or lose the faith of complainants in sexual offences. Improvements to police attitudes to complainants of sexual offences, the use of special measures including pre-recorded cross examination and reducing the time between reporting and trial also have a key role to play in encouraging complainants to come forward and securing convictions.
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[1] Per Lord Hope of Craighead in R v A (No. 2) [2002] 1 AC 45