Admissibility of Sexual history of C

What is the law? Is it uncertain?
-Any witness at trial may be cross-examined subject to the collateral issue test with
a view to attacking his credibility as a witness. This is a fundamental issue because
the degree of weight tt the jury will attach to a witness’s evidence will depend
largely on how credible a witness appears to them. Admissibility of evidence is one
thing; getting the jury to believe is another thing altgt
The moral character of a witness has always proven difficult . Everyone has at least
a skeleton in the closet. This type of evidence has high prejudicial effect as it is in
the human nature to always cast the stone on another for the slightest moral
turpitude. For a long time, the moral character of a witness was accepted as being
relevant to his credibility with the simplistic idea tt an immoral person is less worthy
of trust. This problem is compounded when we are dealing with a rape complainant
When A alleges consent as his defence, the moral character of the complainat may
be relevant to her credibility(just like any other witnesses) and to the issue of
whether she consented on tt articular occasion or not. So her moral character may
be relevant to credibility as well as to issue
A woman who engages in indiscriminate promiscuity may be thought to be less
worthy of belief and also because of her propensity for fornication or adultery with
different men, she is more likely to have consented to sex with A than a woman who
did nt have such propensity. This has been described a shte “twin myths” by
McLachin J in the Canadian case of Seaboyer (1991) “tt unchaste women were more
likely to consent to intercourse and in any event, were less worthy of belief”
Such prejudicial thinking is of course unacceptable and as Lsteyn pointed out:
“Such generalized, stereotyped and unfounded prejudice ought not to have in our
legal system. But even in the very recent past such defensive strategies were
habitually employed. It result in absurdly low conviction rate in rape cases. It also
inflicted unacceptable humiliation on complainants in rape cases.”
But whilst we may agree with the chastising of the twin myths, we must never lose
sight of the fact tt in appropriate circumstances, the sexual experience of the
complainant may be relevant to the issue of whether she consented although it will
never be conclusive of the issue. It is perhaps, prudent, at this point to remind
ourselves of what is meant by relevance
Relevance as provided in Kilbourne(1973) by Lord Simon is evidence which is
logically probative or disprobative of some matter which requires proof
And as learned author Allen pointed out: “An item of evidence does nt have to be
conclusive or even weighty and can almost never be answered by reference to any

rule of law but an understanding of the importance of generalization abt the way
things are in the world
The question tt the law has had to grapple with is
1. To what extent is the sexual experience of the c relevant to the issue
of her credibility(note tt this applies equally to the A as per s142
CJPOA 1994)
2. To what extent is the sexual experience of the complainant relevant
to the issue of her consenting to sex when her sexual experience
relates to other men or to A?
The law prior s41
In Morgan(1976) the HL held tt in a trial for rape a subjective belief by A tt the v
consented to sexual intercourse afforded a def. Following this decision, the Advisory
group on the Law of Rape was established and produced the Helibron Report. It
treated previous sexual association btw the complainant and A as potentially
relevant but advised tt in general, the previous sexual history of the complainant
with other men was irrelevant
P then enacted the Sexual Offences(Amendment) Act 1976. S2 provided tt the c cnt
be crossexamined or evidence cnt be adduced abt her sxual experience with other
men other than A unless the judge granted leave and the judge was bound to grant
leave if he was satisfied tt “ it would be unfair to tt d to refuse to allowthe evidence
to be adduced or the q to be asked.” Therefore, evidence of and XE of the c of
her sexual experience with the A was as of right
In Viola(1982) the CA took the view tt leave should be given if the evidence or
questions might rbly lead the jury to a different view of the c’s evidence. It is said tt
the Act was aimed primarily at protecting the c from questions tt were relevant only
to credibility. L Steyn took the view tt the Act did nt achieve its object of preventing
the illegitimate use of prior sexual experience in rape trials. In retrospect, one an nw
see tt the structure of this legislation is flawed. In respect of sexual experience btw
a c and other men which can only in the rarest cases have any relevance , it created
too broad an inclusionary discretion. Moreover, it left wholly unregulated
questioning or evidence abt previous sexual experience btw the c and A even if
remote in time and context. There was a serious mischief to be corrected
The rationale of s41:
The rationale behind s41 is adequately explained from the following speeches
during the debate on the Bill. The Minister of State at the Home Office, Mr Paul
Boateng said:
“Women-it normally is women although it might be a man-who are considering
making an allegation of rape are all too often deterred from so doing, or from going

through with the process of prosecution, because they are terrified of having their
sexual history trawled through in a gratuitous way
The intention of the Bill is to keep as much evidence of c’s sb out of trials as
possible. Tt is vital if complainants are to pursue their complaints through trial and
not to feel tt their privacy is being invaded to discredit and humiliate them. We must
ensure tt vs have faith in the cjs and believe tt their attacker will be on trial, not
them or their history. Sexual history should be admitted only in very limited
circumstances where it is really relevant to an issue at trial- HC Official Report
Lord Williams of Mostyn QC, A Min of State at HO:
“I have to make it plain tt as a matter of government policywe have concluded tt
evidence of a c’s past attitude to or experience of sexual relations is nt material
upon which a jury should rbly rely to conclude tt the c might indeed have consented
on the occasion tt is the subject of the complaint. Consensual sex does not
mean consent to sex in general-it does nt even mean consent to sex with a
particular person- it means consent to sex with a particular individual on a
particular ocassion
The fact tt a complainant has consented previously does nt mean tt she
will consent again. A woman exercises and is entitled to exercise her
consent independently on each occasion. The d’s accumulated knowledge
and experience of the c may affect his belief in consent at the time of the
alleged offence, even though, if he reflects on it later , he may recognize
and concede tt the belief was mistaken” Hansard(HL debate)

S41Youth Justice Criminal Evidence Act 1999(YJCEA)
provides tt in a sexual offence trial, no evidence about the v’s sexual behavior may
be adduced by the defence unless it falls within subsection 3 or 5 and the court is
satisfied that to exclude such evidence might render a conclusion of fact unsafe.
This serve as another safety net against admission because if the crts feel that the
conviction will not be affected even if such evidence is excluded, the evidence will
nt be admitted even if the exceptions apply
-Sexual behaviour’s definition is construed widely to include not only any sb but
includes any experience involving anyone except but exclude anything alleged to
have taken place in the present charge. This means tt many evidence may easily
fall within s41 and be subject to limitations for admissibility
-R V Hinds(1979)- SB may include sexual intercourse, flirtatious behavior and even
suggestive behavior
-R V Tilambala- evidence of flirting also come under SB

-R V Benreja- SB also includes watching porn/ sexting and taking part in sexual
explicit quiz
What are the exceptions in S 41?
-The exceptions are found in s41(3) and s41(5)
-S41(3) applies provided tt it is relevant to the case and either (a),(b) or(c) apply:
(a) The evidence is admitted not on the issue of consent
-Lord Hope in R V A(No 2)(2002):
1. Defence of belief in consent (ie d arguing mistaken belief-her behavior led me
to believe tt she was consenting)
2. Defence tt v has a motive to fabricate evidence against D(W with a motive is
a w which is unreliable)(issue of reliability)
3. Defence tt there is an alternative explanation for the physical condition
suggesting tt intercourse took place( Scottish case of Love v HM
Advocate(1999)
-R V T : Here, the A was charged for rape but he denied having sex with the V. The
evidence of fb messages and picture sent by the v which was sexual in nature(and
to which A never responded) was admitted via s41(3)(a) to prove tt V may bear a
grudge on the A and increase the likelihood of fabrication of rape claim by the c
Important points to note abt s41(3)(a)
-It does nt distinguish btw sexual behavior of c with A or other men- a vice tt the
entire s41 suffers from
The qualifying provision is the test of relevance and the discretion of the judge
would have to be relied upon as excluding irrelevant material. The test of relevance
in this context has been strictly applied.
In Barton(1987)- the def of rape charge was tt the mistaken belief tt the c
consented. The CA refused to grant leave and drew a distinction btw a belief tt a
women would consent if asked and a belief tt a woman is consenting to a particular
act of intercourse. If A wishes to establish he was getting the wrong message from
the woman’s response, the evidence would have to be relevant to tt issue. It would
be irrelevant to establish tt a woman is promiscuous; tt would be relevant only to
the belief tt hse would consent if asked, not to a belief tt she was consenting on a
particular occasion. To est the latter, evidence would be needed of A’s knowledge of
her idiosyncratic behavior on other occasions tt might have led him to believe for eg
that when she said ‘no’ she meant ‘yes’
Interestingly, evidence tt relates to consent is subjected to qualification in s41(3)(b)
and (c) but A’s belief in consent is nt subjected to those qualifications

Lord Clyde observed: “ where evidence of sb is admitted under s43(1)(a) the jury
then require to be directed by the judge tt they may look to such evidence for the
purpose of determining the issue of honest belief but must ignore the evidence for
the purpose of determining consent. Such a summing up was thought in the CA to
be worthy of Wonderland”
(b) On the issue of consent(d argue tt v actually consented), the SB is
alleged to have taken palce “at or abt the same time” as the present
offence
-R V A(2001), “at or abt the same time” was held to include a period of
approximately 24 hrs before or after the alleged event
-the 24 hrs limitation meant tt any evidence of sb of the complainant that happen
few mths or years ago will not fall under the exception. This ensures tt only
evidence of contemporaneity will be admitted
- It must be noted however that Lord Hope in R V A pointed out in obiter tt it would
be undesirable to prescribe a rigid test in terms of day and hours. This seems to
suggest tt going slightly beyond the 24 time frame may be acceptable but Lord
Clyde also added tt extending the period of “several days” would be unacceptable
-R V Mukadi(2003)-evidence can be admitted under this exception if it took place
at/abt the same time even if there was no similarity
(c) on the issue of consent, the similarity between the two cannot be
explained as coincidence
-The word use in the provision is tt the s.b is “so similar”
- It was envisaged tt this exception would apply to situations where the event have
some degree of striking similarity and according to Lord Williams the similarity has
to be smtg unusual and specific. This approach is similar to the “similar fact
evidence” discussed in R V Boardman to the extent tt the same factors in Boardman
was taken into acc by the crts in applying the exception. This approach is rejected
by the HL in R V A such tt the threshold is lowered to evidence tt are said to be
beyond coincidence
-R V A(No 2) (2002)- the HL held tt all tt is required is tt the similarity cnt be
explained as a mere coincidence. “Striking similarity” is not required(This means tt
it need not involve some bizarre or rare conduct). The crt held tt s41(3)(c) if limited
to unusual and striking evidence may exclude any evidence tt would be relevant to
his defence and consequently infringe A’s right to a fair trial
How S41 sought to achieve the balance?

S41(4) provides the crts with the discretion to reject the evidence if it was felt that
the main purpose of the evidence was to impugned the credibility of the
complainant by suggesting tt the C is sexually promiscuous
Professor Birch commented tt s41(4) is problematic because everytime an
evidence was adduce to show tt V bears a grudge/bias against the A, it is ultimately
an attack on c’s credibility and therefore will be prevented by this section
R V Martin-The crt will look at the main purpose of the evidence. The crt are
cautious of any back-door attempt to admit evidence which is argued to be aimed
towards her credibility but was actually on the issue of consent
The evil which this subsection addresses in uncompromising terms is the drawing of
impermissible inferences as to the c’s credibility and seeks to abolish the false idea
tt a history of sb in some way was relevant to credit. The recognition of the myth as
heresy is to be welcomed
However, in cases where A admits tt he had sexual intercourse with the c on the
occasion in q but says tt it was with her consent, the credibility of the two parties is
likely to be a critical issue and here, issues of consent and issues of credibility may
well run so close to each other as almost to coincide. A very sharp knife may be
required to separate what may be admitted from what may not
The subsection must be carefully handled in order to secure tt the myth remains
buried in the past and at the same time secure the availability of evidence of sb
which is properly admissible as bearing on the issue of consent
It is important to note tt the issue cuts both ways. So for eg if during her evidence
the c claims tt the encounter had led to the loss of her virginity, the jury might think
in relation to a particular A, “It is nt likely she’d chosen him for a first experience; it
must have been a rape-SMS (1992)
S41(5)
Allen argues tt a typical situation where this provision will apply is when the c states
during EIC tt she is a virgin before she was raped, the def may XE or call evidence
with the object of rebutting tt assertion. However, it appears tt the provision will nt
apply if for example the C states in the XE “tts a lie. I ve nvr had sex with anyone
except with my husband” since such evidence was nt adduced by the R but was
merely volunteered by the R witness, although it is clear tt such an assertion if left
unrebutted will have a powerful impact on its jury
The implication of S41 and judges interpretation
Difficulties in the interpretation of relevance:
R V Hamardi- It was held tt sexual intercourse with 3 rd party is generally irrelevant

R V Harrison- The V’s sexual encounter with a 3 rd party even within a 3hr period was
irrelevant to the issue of whether the V consented to sex with the A
R V A (2001)The HL decided tt s41(3)(c) should be construed in accordance with HRA 1998 to
ensure D’s right to a fair trial (Art 6 ECHR). Thus the evidence of previous
affectionate rship(not merely isolated acts of intercourse)between the D and the V
could be relevant and admissible to prove V’s affectin for D(although not to prove
consent) This approach is followed in R V R(2003)
At trial- the counsel for A applied for leave to cross-examine the C abt the alleged
previous sexual rship between them and to lead to evidence abt it. (tt they had
consensual sexual intercourse and a continuing sexual rship throughout the three
weeks before the the alleged occasion
The issues before the HL:
Issue 1It is clear tt s41 imposes the same exclusionary provisions in respect of C’s sexual
experience with A as with other men. This is the genesis of the problem.
Lord Steyn- their lordships agreed tt s41 deals sensibly and fairly with questioning
and evidence abt the c’s sexual experience with other men. Such matters are
almost always irrelevant to the issue whether the c consented to sexual intercourse
on the occasion alleged or to her credibility. To tt extent, the scope of reform of the
law by s41 was justified.
However, in relation to the c’s sexual experience with A, especially in the context of
ongong sexual rshipis another issue altgt. As a matter of common sense, a prior
sexual rship btw the c and A 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 c’s state of mind . It cnt of course prove tt she consented on the occasion in
q. Relevance and sufficiency of proof are different things. It is true tt each decision
to engage in sexual activity is always made afresh. On the other hand, the mind
does not usually blot out all memories. What one has been engaged on in the past
may influence what choice one makes on a future occasion. A ccordingly, a prior
rship btw a c and an accused may sometimes be relevant to what decision was
made on a particular occasion
Lord Hutton explains the point:
“….whilst there can be no dispute tt the fact tt a c has consented previously does nt
mean tt hse will consent again, it does nt follow , in my opinion, where there has
been a recent affectionate rship between a woman and man, tt one cnt sya tt the
fact tt she has consented previously is relevant in deciding whether she consented

when there was intercourse with the same man a relatively short time later. I
consider tt there is much force in the stt of Professor Galvin tt…
“even the most ardent reformers acknowledged the high probative value of past
sexual conduct in at least two instances.1.when the d claims consent and
establishes prior consensual sexual relations btw himself and c…although the
evidence is offered to prove consent, its probative value rests on the nature of the
c’s specific mindset towards the accused rather than on her general unchaste
character”
By the reason given by professor Galvin which is tt evidence of such rship will show
the c’s specific mindset towards the d namely her affection for him.
Dean Wigmore: such evidence shows “an emotion towards the particular d tending
to allow him to repeat the liberty”
But where there had only been some isolated acts of intercourse, even if fairly
recent , without the background of an affectionate rship, it is probable tt the
evidence will not be relevant.” The dividing line is difficult to draw and will depend
on the facts of the individual case as assessed by the trial judge
The implication is tt it may be relevant to the issue of consent whether the
complainant and A were ongoing lovers or strangers. To exclude such materials
create the risk of disembodying the case before the jury. It also increases the
danger of miscarriages of justice
S43(1)(c) –the similarity restriction caused much anxiety and confusion in the HL.
So it is clear tt s41 although being well-intentioned has the effect of preventing the
admissibility of relevant evidence. As Lord Steyn so admirably put it: “Whilst the
statute pursued desirable goals, the methods adopted amounted to legislative
overkill”
Issue 2
The blanket exclusion of prior sexual history between the c and A subject to narrow
categories of exception poses an acute problem of proportionality ie whether
measured against the guarantee of a fair trial, the breadth of the exclusionary prov
of s41 in respect of sexual experience between a c and A are justified and
proportionate
In determining whether a limitation is arbitrary or excessive, a crt should ask itself
whether (1) the legislative objective is sufficiently important to justify limiting a
fundamental right (2) the measures designed to meet the legislative objective are
rationally connected t it and (3) the means used to impair the right or freedom are
no more than is necessary to accomplish the objective

The critical matter is the third criteria- the question is whether s41 makes an
excessive inroad into the guarantee of a fair trial
Issue 3L steyn explains the interpretative obligation of the crts and provide the ratio of the
case:
“In my view s3 requires the crt to subordinate the niceties of the language of s41(3)
(c) and in particular the touchstone of coincidence, to broader considerations of
relevance judged by logical and common sense criteria of time and circumstances…
it is therefore possible under s3 to read s41 and in particular s41(3)(c) as subject to
the implied provision tt evidence or questioning which is required to ensure a fair
trial under Art 6 of the convention should nt be treated as inadmissible . The result
of such a reading would be tt sometimes logically relevant sexual experiences btw a
c and an A may be admitted under s41(3)(c). There will be cases where previous
sexual experience btw A and accused is irellevant(for eg an isolated episode distant
in time and circumstances. Where the line is to be drawn must be left to the
judgement of thetrial judge.
If this approach is adopted, s41 will have achieved a major part of its objective but
its excessive reach will have been attenuated in accordance with the will of the
Parlaiment as reflected in s3 of the 1998 act
The effect of the decision today is tt the test of admissibility is whether the
evidence is nevertheless so relevant to the issue of consent tt to exclude it would
endanger the fairness of the trial under art6 of the convention. If this test is
satisfied, the evidence should nt be excluded.

The nature of unfairness in admitting the sexual history evidence and the unfairness
to the def for excluding it
The difficulties regarding interpretation of relevance and the need to balance the
interest btw c and d
The breadth of discretion provided by R VAand how well the discretion was
exercised by crts post R V A
R v Mukadi(2003)
First it must be noted tt the decision of this case is limited to its own exceptional
facts. Here, the issue is pertaining to the V’s own testimony. The V put forward the
story tt she went with A to his apartment to see whether the could be friends
whereas the A’s version was tt she was a willing participant throughout the sexual
activity.

The evidence tt the trial judge considered was whether the fact tt the victim was
seen at the earlier of the day to be behaving intimately with another man while
entering his car was a sb and on its relevance to be admitted under s41(3)(b)
CA…..
Therefore, it is wrong to say tt the ratio in Mukadi was conflicting with R V A. R V
Mukadi decision does nt support the proposition of a blanket rule tt the sexual
behavior of the c with the third party within 24hr period can be admissible. The
evidence was relevant and admissible under s41(3)(b) because it was used to cast
doubt on the C’s claim tt she was in A’s hse just to be friend
Therefore, it may be submitted tt Mukadi case is limited to a situation where the
evidence seek to question the reliability of the c’s story

R V R(2003)
R V Martin(2004)
R v White(2006)
R V Hamadi(2007)
Should judges exercise more discretion than tt permitted by s41?
Commentaries by :
Redmayne
Temkin
Birch –supports judges having more discretion and agreed with the decision in R V A
Kibble

Conclusion
Did the Judges manage to strike a balance?