2014 ZA Q3 “S41 of the YJACE 1999, as interpreted by the HOL in R v A, has left the
law on the admissibility of sexual history evidence in an unsatisfactory
state of uncertainty”. Discuss.
2014 ZB -
2015 ZA Q2 “Despite the enactment of S41 of YJACE 1999 and HOL decision in R v A,
the law of the admissibility of sexual history continues to be deeply
unsatisfactory; it is unfair to both defendants and to the victims of rape.”
Discuss.
2015 ZB -
2015 Oct Q1 How satisfactory is the law governing the admissibility of a complainant’s
sexual history in trial of sexual offences?
2016 ZA Q2 “The interpretation of S41 of YJACE 1999 by the HOL in R v A was
reasonable in respect to the fact of that case but has left in this area an
unprincipled mess”. Discuss.
2016 ZB -
2016 Oct -
2017 ZA -
2017 ZB -
2017 Oct Q2 “The court have seriously undermined the objectives of the legislation
governing the admissibility of a complainant’s sexual history in trials of
sexual offences.” Discuss.
2018 ZA Q2 “Evidence of a rape complainant’s sexual history with third parties is rarely,
is ever, admissible as relevant to consent.” Discuss in the light of R v A
and R v Evans.
2018 ZB -
2018 Oct Q1 “It is time to reform S41 of YJCEA 1999. The courts are interpreting it far
too widely and admitting the sort of questioning and evidence concerning
complainants’ sexual behavior that the Act was designed to exclude”.
Discuss.
2019 ZA -
2019 ZB -
2019 Oct Q3 “The law does not do enough to protect complainants of sexual offences
from having their sexual history discussed in court”. Discuss.
2020 ZA Q1 Discuss the impact of the HRA 1988 and ruling of the ECtHR on the law of
evidence with respect to evidence of extraneous sexual behavior of
complainants in sexual offence trials.
2020 ZB -
2020 Oct -
, Justifying Restriction of SB
Sexual history evidence was controversially introduced to support inferences of consent
and/or to challenge credibility of sexual complainant. Today many rape cases get nowhere
near a court due to fear of trial process and accordingly O.Smith identify it as a key barrier
to both reporting offences to police and continuing with prosecutions. Evidently, rape
conviction rates in England and Wales have fallen to the lowest level in more than a
decade despite rises in number of rapes reported to police. CPS data shows in 2019 to
2020, there were 55,130 rapes in police records, but only 2,102 prosecutions and 1,439
convictions.
More often than not, evidence of such nature presents defence counsel with propitious
opportunity to go beyond necessary questioning and become bullying, harassing and
humiliating (S.Lees). Allowing such evidence could potentially mislead juries to think that
complainant less credible and likely to have consented, and makes acquittals more likely
(S.Payne). This inference known as “twin myths” where “unchaste women were more
likely to consent to intercourse and in any event, were less worthy of belief”. Justice
McLachlin in influential Canadian case, Seaboyer said these “twin myths are now
discredited and 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”. Similarly, in R v A, Lord Steyn itself states sexual
complainant should not in court be harassed unfairly by questioning about their previous
sexual experiences. Birch argues that we need to “think of ways of taking the jury into the
light rather than deliberately keeping them in the dark”. In other word, it’s better to change
common perceptions to debunk rape myths instead of excluding potentially relevant
evidence.
Yet, as recent as of July 2020, “the trial was worse than the rape” was headline of rape
case news in BBC.com in which complainant said “court case was the most devastating
part of all” and her commissioner, Claire Waxman highlight “many rape victims’
experience of the criminal justice system leaves them re-traumatised and in need of help”.
Although, some anxiety will be unavoidable, the fear and reality of unnecessary cross-
examination on prejudicial material will interfere with a complainant’s ability to give
evidence in most suitable ways for court and jury.
YJCEA
By 1990s, the need for reform was widely recognised, leading to enactment of s.41-43
YJCEA 1999 which aim to protect complainants in proceedings involving sexual offences
by restricting evidence or questions about their previous sexual history by defence. Birch
refers s.41 as “enacted on a wave of invective against the courts for failing to give proper
effect to earlier legislation on sexual history evidence”. Defence may get leave to adduce
such evidence provide one or more of four gateways in s.41(3)(a),(b),(c) and/or s.41(5) is
satisfied. But even if any gateway is met, such evidence must overcome several hurdles in
s.41(2)(b), s.41(6) and s.41(4) before admit it.
RvA
s.41 can understand better in the context of HOL judgement in R v A. In this case, defence
sought to admit evidence of previous sexual relationship between defendant and
complainant in the week before allegation. Since such evidence does not fall within
exception under s.41, it was inadmissible. Defence challenge s.41 to be incompatible with
law on the admissibility of sexual history evidence in an unsatisfactory
state of uncertainty”. Discuss.
2014 ZB -
2015 ZA Q2 “Despite the enactment of S41 of YJACE 1999 and HOL decision in R v A,
the law of the admissibility of sexual history continues to be deeply
unsatisfactory; it is unfair to both defendants and to the victims of rape.”
Discuss.
2015 ZB -
2015 Oct Q1 How satisfactory is the law governing the admissibility of a complainant’s
sexual history in trial of sexual offences?
2016 ZA Q2 “The interpretation of S41 of YJACE 1999 by the HOL in R v A was
reasonable in respect to the fact of that case but has left in this area an
unprincipled mess”. Discuss.
2016 ZB -
2016 Oct -
2017 ZA -
2017 ZB -
2017 Oct Q2 “The court have seriously undermined the objectives of the legislation
governing the admissibility of a complainant’s sexual history in trials of
sexual offences.” Discuss.
2018 ZA Q2 “Evidence of a rape complainant’s sexual history with third parties is rarely,
is ever, admissible as relevant to consent.” Discuss in the light of R v A
and R v Evans.
2018 ZB -
2018 Oct Q1 “It is time to reform S41 of YJCEA 1999. The courts are interpreting it far
too widely and admitting the sort of questioning and evidence concerning
complainants’ sexual behavior that the Act was designed to exclude”.
Discuss.
2019 ZA -
2019 ZB -
2019 Oct Q3 “The law does not do enough to protect complainants of sexual offences
from having their sexual history discussed in court”. Discuss.
2020 ZA Q1 Discuss the impact of the HRA 1988 and ruling of the ECtHR on the law of
evidence with respect to evidence of extraneous sexual behavior of
complainants in sexual offence trials.
2020 ZB -
2020 Oct -
, Justifying Restriction of SB
Sexual history evidence was controversially introduced to support inferences of consent
and/or to challenge credibility of sexual complainant. Today many rape cases get nowhere
near a court due to fear of trial process and accordingly O.Smith identify it as a key barrier
to both reporting offences to police and continuing with prosecutions. Evidently, rape
conviction rates in England and Wales have fallen to the lowest level in more than a
decade despite rises in number of rapes reported to police. CPS data shows in 2019 to
2020, there were 55,130 rapes in police records, but only 2,102 prosecutions and 1,439
convictions.
More often than not, evidence of such nature presents defence counsel with propitious
opportunity to go beyond necessary questioning and become bullying, harassing and
humiliating (S.Lees). Allowing such evidence could potentially mislead juries to think that
complainant less credible and likely to have consented, and makes acquittals more likely
(S.Payne). This inference known as “twin myths” where “unchaste women were more
likely to consent to intercourse and in any event, were less worthy of belief”. Justice
McLachlin in influential Canadian case, Seaboyer said these “twin myths are now
discredited and 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”. Similarly, in R v A, Lord Steyn itself states sexual
complainant should not in court be harassed unfairly by questioning about their previous
sexual experiences. Birch argues that we need to “think of ways of taking the jury into the
light rather than deliberately keeping them in the dark”. In other word, it’s better to change
common perceptions to debunk rape myths instead of excluding potentially relevant
evidence.
Yet, as recent as of July 2020, “the trial was worse than the rape” was headline of rape
case news in BBC.com in which complainant said “court case was the most devastating
part of all” and her commissioner, Claire Waxman highlight “many rape victims’
experience of the criminal justice system leaves them re-traumatised and in need of help”.
Although, some anxiety will be unavoidable, the fear and reality of unnecessary cross-
examination on prejudicial material will interfere with a complainant’s ability to give
evidence in most suitable ways for court and jury.
YJCEA
By 1990s, the need for reform was widely recognised, leading to enactment of s.41-43
YJCEA 1999 which aim to protect complainants in proceedings involving sexual offences
by restricting evidence or questions about their previous sexual history by defence. Birch
refers s.41 as “enacted on a wave of invective against the courts for failing to give proper
effect to earlier legislation on sexual history evidence”. Defence may get leave to adduce
such evidence provide one or more of four gateways in s.41(3)(a),(b),(c) and/or s.41(5) is
satisfied. But even if any gateway is met, such evidence must overcome several hurdles in
s.41(2)(b), s.41(6) and s.41(4) before admit it.
RvA
s.41 can understand better in the context of HOL judgement in R v A. In this case, defence
sought to admit evidence of previous sexual relationship between defendant and
complainant in the week before allegation. Since such evidence does not fall within
exception under s.41, it was inadmissible. Defence challenge s.41 to be incompatible with
