Justice Department rejects ban on questioning alleged rape victims over sexual history in court

Women’s groups have criticised a Ministry of Justice (MoJ) decision to reject a proposed ban on questioning alleged rape victims about their sexual history in court.

Supported by MPs Harriet Harman and Liz Saville Roberts, campaigners argue that it has become increasingly common for defence lawyers to apply to introduce a complainant's previous sexual history into evidence.

They say this is likely to deter rape victims from going to the police as they may fear being questioned about their past activity.

Ms Harman in March, tabled an amendment to Section 41 of the Youth Justice and Criminal Evidence Act 1999, which restricts the use of evidence or questions relating to the complainant’s sexual history in rape cases.

She proposed a complete ban on bringing up previous sexual activity in court.

“The problem is, even if it’s not in open court, the idea that there’s going to be a court with lots of people in it hearing evidence brought forward by the defence about your previous sexual conduct, in itself would be a deterrent,” she said at the time.

But after carrying out a review, the MoJ and the Attorney General’s office said that Section 41 was “working as intended”.

Their study of 309 sample rape cases, revealed in 92 per cent of them, no evidence of the complainant’s sexual history was introduced.

Applications to do so were made in 40 cases, or 13 per cent. Judges granted them, 8 per cent of the time, in 25 cases.

“This data shows that such evidence is used sparingly and that the law is working as it should," a government spokesperson said. “But we want to do more for victims of sexual offences, that is why the CPS is updating its mandatory training for prosecutors, and we will be rolling out pre-recorded cross-examination for vulnerable witnesses to ensure that they can give their best evidence.”

Responding to the decision, Sophie Walker, Leader of the Women’s Equality Party, told The Independent: “Until the justice system recognises that someone’s consensual sexual history is completely divorced from the question of whether they have been raped or assaulted, it will continue to let down the victims of sexual violence.

“The way our justice system deals with rape is summed up by the fact that only 6 per cent of cases that are reported result in convictions – and most victims never come forward to the authorities in the first place.

“One of the factors in victims’ reluctance to take their cases through the criminal justice system is the prospect that their personal histories will be dragged up and used against them.”

Campaign group Women Against Rape said, “Our experience is that sexual history is often still used in sexual offences trials. The defence will discredit a woman by implying that she has done something ‘bad’ in her past, or has made reports of violence before, or get other men to say she slept with them.”

They added that studies published this year, including a report by Dame Vera Baird QC on 30 rape trials at Newcastle Crown Court, “confirmed not only that such unfair evidence is commonly allowed, but that it is often slipped in, flouting the procedure for applying to the judge for prior permission.”

The proposed ban came after the overturning of footballer Ched Evans’ rape conviction last year, which Ms Harman said had "left wide open the problem of previous sexual history".

Mr Evans was found guilty of raping a 19-year-old in 2012 but was cleared in October 2016 after a retrial jury was allowed to hear new evidence from two witnesses about the complainant's sexual history, including her sexual preferences and the language she used during sex.