Complainants in rape cases are being subjected to invasive and unfair questioning about their sexual history, according to a cross-party campaign supporting tighter restrictions on cross-examination in trials.
Two former Labour solicitor generals, Harriet Harman and Dame Vera Baird QC, are leading calls for reform of section 41 of the Youth Justice and Criminal Evidence Act 1999, which they say is deterring women from reporting attacks.
Concerns about the way the provision works emerged after acquittal of the footballer Ched Evans in 2016. Section 41 is supposed to protect vulnerable victims and limit the circumstances in which previous sexual experiences can be introduced into court.
Evans’ retrial heard evidence from two other men who testified about the complainant’s sexual preferences and the language she used during sex.
Last month, the Ministry of Justice (MoJ) and the Attorney General’s Office published an analysis of more than 300 rape cases, showing that in 92% of them, no evidence of the complainant’s sexual history was introduced by the defence.
The review suggested the bar for disclosure of such personal evidence was sufficiently high and the law struck a careful balance between the need to protect complainants and ensuring defendants receive a fair trial.
But the campaign to reform the law, which is holding a meeting in parliament on Monday, is publishing fresh evidence that it claims undermines the MoJ’s position.
Research by Baird, based on court observers watching 30 rape trials over 18 months at Newcastle crown court, shows rape complainants’ previous sexual history was used as evidence in 11 of the trials – equivalent to 37%. In the majority of these cases, disclosures related to sexual activity with men other than the defendant. In one trial, the defence barrister said it was to show “she is an adulteress”.
A national survey of independent sexual violence advisers by the organisation Limeculture in 2017, looking at the application of section 41, found that in 28% of cases where previous sexual history was used as evidence, there had been no application, which the rules require.
Additionally, a review undertaken for the Fawcett Society by the former high court judge Dame Laura Cox, published earlier this month, found the section 41 procedure was often ignored.
Baird, the Northumbria police and crime commissioner, said: “We cannot allow rape trials to be inquisitions into the complainant’s sex life. The fear of a complainant being confronted with evidence relating to sex with other men is, and has always been, a huge deterrent to reporting rape.
“We know the government’s review does not reflect the situation in courtrooms across the country and call on them to use the opportunity of the domestic violence and abuse bill to protect complainants and ensure they are treated fairly in the courtroom.”
Harman said: “This is not what women should have to put up with and it’s not what parliament intended. It’s not a fair trial if prejudicial, irrelevant evidence is allowed in.
“The government cannot go on ignoring the evidence of the scale and nature of the problem. We need a change in the law to ensure that trials are fair and that complainants do not face the ordeal of their sexual history being dragged through the courts.”
The campaign to reform the law is backed by Women’s Aid, Rape Crisis, End Violence Against Women, Victim Support, Limeculture and other organisations. It is supported by Labour, Liberal Democrat, Green and Plaid Cymru MPs.