Admissibility of Sexual History Evidence and Section 41 Youth Criminal Justice and Evidence Act 1999

Do rape trials perpetuate stereotypical beliefs about victims of rape?

Abstract

In October 2016, Ched Evans was found to be not guilty of rape. The case sparked academic debate, focusing on section 41 Youth Criminal Justice Evidence Act (YCJEA) 1999 which permits the judiciary to consider a complainant’s previous sexual history under specific gateways. This provided scope for attention to be drawn to the Complainant’s lifestyle, rather than the unchivalrous acts of Evans. The Complainant’s lifestyle did not comply with the societal role that women are perceived to play, portraying women to be passive not active participants in sexual activities. Such misconceptions associated with rape myths are imbedded within society and have consequently influenced legal attitudes, especially about victims of rape. 

This article challenges the threshold of section 41(3)(c)(i) YCJEA regarding the admission of sexual history evidence. It highlights the concern that the provision has failed to achieve its intended results, namely to shield complainants from unnecessary stereotyping that seeks to challenge their credibility while also ensuring that the defence can meaningfully participate in the trial process. While it is debatable whether Evans opened the floodgates to the admissibility of sexual history evidence, the case demonstrates that allowing it can lead to victim blaming that might deter future victims of rape from coming forward and reporting sexual assaults. This concern is heightened given that defence counsels, juries, trial judges, and the Crown Prosecution Service perpetuate stereotypical beliefs about rape and its victims within the trial process. Fundamentally, the legal response to sexual offences can only be improved through education that will rectify misconceptions about consent and the role women play in sexual activities, eradicating stereotypical beliefs regarding victims of rape.