Download Evidence of Sexual Experience

The Admissibility of Sexual Experience Evidence in Ireland
Gerard Murphy B.L.1
Introduction
The Court of Criminal Appeal has recently considered the controversial
issue of the admissibility of evidence of sexual experience in trials of
sexual offences. This article reviews the legal position in Ireland in light
of the Court of Criminal Appeal’s judgment. The law in this area has
undergone considerable change in England and Wales since the passing
of the Youth and Criminal Evidence Act 1999 and the decision of the
House of Lords in the case of R. v. A. (No. 2)2, which interpreted the new
provisions in light of the Human Rights Act 1998. The effect of the new
provisions in the Youth and Criminal Evidence Act 1999 has undergone
thorough research and analysis in a recent report commissioned by the
Home Office3. In many common law jurisdictions the restriction on the
admissibility of sexual experience evidence has undergone significant
refinement in recent years. For the purposes of this article I propose to
review the law in Ireland only, but will refer to the position in England
and Wales and Canada for the purpose of reform of the restriction in this
jurisdiction. The term “sexual behaviour” is now used in England and
Wales. In Canada the term used is “sexual activity”. However, when
discussing the Irish position the term “sexual experience” will be used as
this is the term used in s. 3 of the Criminal Law (Rape) Act 1981.
The problem with evidence of sexual experience
Cross-examination of a complainant as to her sexual experience was
previously considered an important aspect of a defence to a charge of
sexual assault4. However, admitting evidence of a complainant’s sexual
experience has long been criticised as perpetuating the “twin myths” that
by reason of her past sexual behaviour a complainant is (a) more likely to
1
Faculty of Law, University College Cork.
[2002] 1 A.C. 45
3
Kelly, Temkin and Griffith, Section 41: an evaluation of new legislation limiting sexual history
evidence in rape trials, Home Office 20 June 2006. Available online at http://www.homeoffice.gov.uk.
4
See the judgment of Kenny J. in the case of D.P.P. v. McGuinness [1978] I.R. 189, 190: “The
complainant will never admit that she consented, and counsel must seek to show that at the time of the
offence her character and behaviour were such that she would be likely to have consented or that she
has invented the evidence which she is giving. Both of these are extremely difficult to establish but
counsel must try. He often seeks to do so by cross-examining the complainant about events in the past
so that he can introduce doubts into the minds of the jurors about her character or her credibility and he
may have to cover many aspects of her past life.” Although the Supreme Court in the case of The
People (D.P.P.) v. Tiernan [1988] I.R. 250 said that a complainant’s previous sexual experience could
not be considered a mitigating circumstance in any rape for the purposes of sentencing the convicted
defendant.
2
1
have consented to the sexual activity in question and (b) less credible as a
witness5. Lord Steyn observed in the case of R. v. A.6 that “generalised,
stereotyped and unfounded prejudices ought to have no place in our legal
system.”7 In the same case Lord Slynn said:“… in recent years it has become plain that women who allege that they have been raped
should not in court be harassed unfairly by questions about their previous sex experiences. To
allow such harassment is very unjust to the woman; it is also bad for society in that women
will be afraid to complain and as a result men who ought to be prosecuted will escape. That
such questioning about sex with another or other men than the accused should be disallowed
without the leave of the court is well established … Such a course was necessary in order to
avoid the assumption too often made in the past that a woman who has had sex with one man
is more likely to consent to sex with other men and that the evidence of a promiscuous
woman is less credible. Evidence of previous sex with the accused also has its dangers. It may
lead the jury to accept that consensual sex once means that any future sex was with the
woman's consent. That is far from being necessarily true and the question must always be
whether there was consent to sex with this accused on this occasion and in these
circumstances.”8
An accused person is, however, entitled to a fair trial and to adduce
evidence and cross examine a witness in relation to a matter that may be
relevant to an issue in the case. When exactly evidence of a
complainant’s sexual experience may be relevant is highly controversial.
Consensus is difficult to achieve. As Temkin et al note in their recent
study of the law in England and Wales: “relevant is in the mind of the
beholder”9. The questions to be asked are: when is it appropriate to admit
evidence of the complainant’s sexual experience and if such evidence is
to be excluded can such exclusion be justified having regard to the
personal rights of both the complainant and the defendant?
Section 3 of the Criminal Law (Rape) Act 1981
Section 3 of the Criminal Law (Rape) Act 198110 provides that if a person
is charged with a sexual assault offence to which he pleads not guilty
then, except with the leave of the trial judge,:-
5
See R. v. A. [2002] 1 A.C. 45, 48. See also the judgment of McLachlin J. (as she then was) in the case
of R v Seaboyer (1991) 83 DLR (4th) 193, 258.
6
[2002] 1 A.C. 45
7
[2002] 1 A.C. 45, 59
8
[2002] 1 A.C. 45, 54
9
See Kelly, Temkin and Griffith, Section 41: an evaluation of new legislation limiting sexual history
evidence in rape trials, (Home Office 20 June 2006) at page 12. Evidence may be relevant in a range
of circumstances. On this point see the Law Reform Commissions Consultation Paper on Rape (1987)
at para. 85. See also the judgment of Lord Hope in R. v. A. [2002] 1 A.C. 45, 78 (para. 79).
10
As amended by s. 13 of the Criminal Law (Rape) (Amendment) Act 1990.
2
“no evidence shall be adduced and no question shall be asked in cross-examination at the
trial, by or on behalf of any accused person at the trial, about any sexual experience (other
than that to which the charge relates) of a complainant with any person.”
Section 13 of the Criminal Law (Rape) (Amendment) Act 1990 extended
the scope of the restriction to offences other than rape. Section 12 of the
Act of 1990 provides that a “sexual assault offence” includes a number of
offences including rape, rape under s. 4, aggravated sexual assault, sexual
assault and any attempts to commit these offences, as well as other
offences. Notably the restriction appears not to apply where a person is
charged with an offence of unlawful carnal knowledge. However, the
restriction has been applied to the new offences of “defilement” created
by ss. 2 and 3 of the Criminal Law (Sexual Offences) Act 200611.
The Act of 1990 also extended the restriction to exclude evidence
of sexual experience with the particular defendant12. Prior to 1990 a
complainant (or other witness13) could be asked about the complainant’s
sexual experience with the defendant but not with any third party. Since
1990 the restriction applies to the complainant’s sexual experience with
the defendant, as well as any third party, other than that to which the
charge in question relates.
The restriction only applies to the accused; the prosecution can
adduce evidence of sexual experience if they wish without any
restriction14. Although the term “previous sexual experience” is widely
used the word “previous” is not used in the legislation and so the
restriction can apply to any sexual experience previous or subsequent to
the alleged offence being tried15.
11
Section 6 of the Criminal Law (Sexual Offences) Act 2006.
This followed a recommendation of the Law Reform Commission in its Report on Rape: Law
Reform Commission, LRC 24 – 1988, Report on Rape and Allied Offences, at para. 28. Archbold notes
that at common law the complainant could be contradicted if she denied having previously had
intercourse with the defendant on the basis that such a fact would be relevant to consent: R. v. Riley
(1887) 18 Q.B.D. 481. See Archbold: Criminal Pleading, Evidence and Practice (2005) at para. 8 –
123l.
13
The provisions in s. 3 restrict not only examination or cross-examination of the complainant but also
any other witness as to the complainant’s sexual experience. It would not permissible to ask a witness
to give evidence that the complainant was a prostitute, for example, without the leave of the trial judge
under s. 3.
14
In New South Wales the restriction applies to both the prosecution and the defendant, see Crimes Act
1900, s. 409B (3). There is no statutory rule preventing examination or cross-examination of the
defendant as to his sexual experiences. Such evidence has been used, on occasion, to unfairly discredit
a defendant. See the recent judgment of the Supreme Court in the case of O. (D.) v. D.P.P. (8th March
2006) where the defendant was asked a long series of questions on cross-examination by the
prosecution as to his “sexual makeup”. Hardiman J. found that the cross –examination was “was apt to
belittle and oppress the defendant” and that the questions asked were “not at all probative” and
“manifestly prejudicial” towards the defendant.
15
While the term “sexual history evidence” is also widely used, it is best avoided. The phrase “sexual
experience evidence” should be preferred. The term “rape shield rules” was also used quite frequently
in this context in the past but the term is misleading. As McLachlin J. (as she then was) noted in her
judgment in the case of R. v. Seaboyer (1991) 83 DLR (4th) 193, 258: “the term “rape shield” is less
12
3
Since the passing of s. 34 of the Sex Offenders Act 2001 a
complainant is entitled to separate legal representation when an
application is made to admit evidence of his or her sexual experience.
Section 3 (2) (b) of the Criminal Law (Rape) Act 1981 provides
that the trial judge shall give leave to adduce evidence of, or cross
examine a witness on, the complainant’s sexual experience:“if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow
the evidence to be adduced or the question to be asked …”
Further statutory guidance as to when exactly if would be unfair to refuse
leave is provided as follows: “that is to say, if [the trial judge] is satisfied that, on the assumption that if the evidence or
question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that
the accused person is guilty, the effect of allowing the evidence or question might reasonably
be that they (sic) would not be so satisfied.”
The People (D.P.P.) v. G.K.
In the case of The People (D.P.P.) v. G.K.16 the defendant had been
convicted of a number of sexual offences against one complainant. At the
initial trial for these offences the jury could not reach a verdict. The
applicant was convicted of the offences at a second trial but those
convictions were set aside by the Court of Criminal Appeal which
ordered a retrial. At the sentencing hearing on the occasion of the second
trial it emerged, in the course of a victim impact report prepared by a
clinical psychologist, that the complainant had become sexually active
with boys when she was twelve years old. At the third trial for these
offences counsel for the defendant made an application to the trial judge
for leave to cross-examine the complainant arising out of this disclosure
in the report of the clinical psychologist. The argument was that the
complaint against the applicant may have been false and this was a matter
the jury was entitled to consider. The second argument was that the
complainant may have misled the police medical examiner in not
disclosing any history of sexual activity other than that involving the
applicant. The application to cross-examine was refused by the trial
judge, principally on the basis that consent was not an issue in the case.
On appeal the Court of Criminal Appeal held that the evidence of the
complainant’s sexual experience with boys when she was around twelve
years old should have been admitted on the basis that “the effect of
allowing the evidence or question might reasonably have been that the jury
than fortunate; the legislation offers protection not against rape, but against the questioning of
complainants in trials for sexual offences”.
16
The judgment of the Court of Criminal Appeal was given on 5 th July 2006.
4
would not have been satisfied beyond reasonable doubt of the guilt of the
applicant”.
The Court of Criminal Appeal in G.K. made it clear that when
asked to grant or refuse an application under s. 3 of the Act of 1981 the
trial judge must make a judgment as to whether or not he is satisfied in
the terms of section 3 (2). The Court said if the trial judge concludes “that
it would be unfair to exclude the evidence or question, it has to be
admitted and allowed”. It would be wrong therefore to speak of a trial
judge’s “discretion” in this matter. The point is significant since the Court
of Criminal Appeal does not lightly interfere with discretionary orders
made by the court of trial since the court of trial is usually in the best
position to determine the matter. As the Court of Criminal Appeal made
clear in this case the decision to grant or refuse an application under s. 3
must be made on “reasoned grounds”. If the trial judge does not give
reasons for his decision on this point this could be a ground of appeal if a
conviction is later returned, especially if the refusal is difficult to justify
on objective grounds. Since the test as to whether an application under s.
3 should be acceded to or not is set out in s. 3(2) an appeal could be taken
to the Court of Criminal Appeal if the trial judge refuses an application
for reasons which have “no relevance to the statutory test”. For example,
it would be wrong if the trial judge did not adequately consider the
fairness to the accused if the application is refused and instead
determined the matter solely in light of the trauma or upset that would be
caused to the complainant as a result of the line of questioning. The Court
of Criminal Appeal would appear to have given the “green light” to this
issue being reviewed more frequently on appeal. On the other hand the
Court noted that “a decision to refuse to allow cross-examination as to
past sexual history may more readily be justified in most cases than the
converse”. This is because of the “severely restrictive terminology” of the
statutory provisions.
The Court offered some limited guidance as to when crossexamination would be undesirable: when the complainant is of a young
age. The Court also noted that if cross-examination is allowed “it should
be confined only to what is strictly necessary and should never be utilised
as a form of character assassination”.
Procedural matters relating to a s. 3 application
Section 3 (2) (a) provides that an application under s. 3 must be made to
the trial judge by or on behalf of an accused person in the absence of the
jury.
5
Section 6 of the Criminal Law (Rape) Act 1981 (as amended by s.
11 of the Criminal Law (Rape) (Amendment) Act 1990) provides that
during an application under s. 3 the trial judge shall exclude from the
court all persons except officers of the court and persons directly
concerned in the proceedings. However, a parent, relative or friend of the
complainant may remain in court with the complainant. If the accused is
under 21 then a parent, relative or friend of the accused may remain in
court with the accused17. It would appear that representatives of the press
are not entitled to be present in court for a s. 3 application, although they
are entitled to be present during the trial.
Section 34 of the Sex Offenders Act 2001 provides for a new s. 4A in the
Criminal Law (Rape) Act 1981. The section provides that in an application under s. 3
the complainant shall be entitled to be heard in relation to the application and, for this
purpose, to be legally represented during the hearing of the application. A
complainant is automatically entitled to legal aid for the purposes of being represented
during this application18. The complainant does not have to satisfy the means test but
must still apply for a legal aid certificate19.
The following procedure must be complied with when an
application under s. 3 is to be made20:1.
Notice of intention to make an application under s. 3 shall be given to the prosecution
by or on behalf of the accused person before, or as soon as practicable after, the
commencement of the trial for the offence concerned21.
2.
The prosecution shall, as soon as practicable after the receipt by it of such a notice,
notify the complainant of his or her entitlement to be heard in relation to the said application
and to be legally represented, for that purpose, during the course of the application.
17
These provisions appear unnecessarily restrictive. For example, if a person wishes to research the
operation of s. 3 it would appear that such research could not be conducted even with the permission of
the trial judge. At other stages of the trial “such other persons” may be permitted to remain in court at
the discretion of the trial judge: see s. 6 of the Criminal Law (Rape) Act 1981, as amended by s. 11 of
the Criminal Law (Rape) (Amendment) Act 1990. The Law Reform Commission, in its consultation
paper on rape (1987) at para. 118 recommended that “in particular cases, the judge should be
empowered to permit the attendance of persons carrying out research of a criminological or other
scientific nature” at trials of sexual offences. Indeed the Commission in its report (Law Reform
Commission, LRC 24 – 1988, Report on Rape and Allied Offences, at para. 24) noted that it could not
tell how widespread the practice of not making formal applications under s. 3 was, as alleged by the
Dublin Rape Crisis Centre, and so could not say with certainty that there were no problems with the
operation of s. 3.
18
See s. 35 of the Sex Offenders Act 2001. See also Leaflet No. 14 published by the Legal Aid Board.
Unfortunately this leaflet does not appear to be available on the Legal Aid Board’s website.
19
The position of complainants in this jurisdiction is much more favourable than that of complainants
in England and Wales. Not only are complainants in England and Wales not entitled to separate legal
representation, under s. 43 (1) of the Youth and Criminal Evidence Act 1999 an application under s. 41
must be made in the absence of the complainant. This is an odd provision in legislation which is
designed to protect the interests of complainants.
20
The procedure is set out in s. 34 of the Sex Offenders Act 2001. There do not appear to be any rules
of courts concerning an application under s. 3.
21
Notification is writing is not specifically required.
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3.
The judge shall not hear the s. 3 application without first being satisfied that steps 1
and 2 have been complied with.
4.
If the period between the complainant's being notified of his or her entitlements under
this section and the making of the said application is not, in the judge's opinion, such as to
have afforded the complainant a reasonable opportunity to arrange legal representation the
judge shall postpone the hearing of the application (and, for this purpose, may adjourn the
trial or proceeding concerned) for a period that the judge considers will afford the
complainant such an opportunity22.
Criticism of the current law and proposals for reform
In his judgment in the case of R. v. A. Lord Hope outlined the 6 models of
restriction that currently operate in this area23. These models vary
between leaving the matter of admissibility almost entirely to the
discretion of the trial judge (which is the position in Ireland24) and setting
out specific exceptions where such evidence may be admitted. Section 41
of the Youth and Criminal Evidence Act 1999 follows, by and large, the
“specific exception” model. The compatibility of the provisions of s. 41
with the provisions of the Human Rights Act 1998 and the European
Convention on Human Rights was challenged in the case of R. v. A. As
Lord Hope noted in his speech:“There is no doubt that Parliament, by placing restrictions on the questions that may be asked
and the evidence that may be adduced by or on behalf of the accused was entering upon a
very sensitive area”25.
In that case the House of Lords found that, in particular, the restrictive
nature of s. 41 (3) (c) was capable of infringing an accused person’s right
to a fair trial under article 6 of the ECHR. At para. 46 of his judgment
Lord Steyn held that while “due regard” should always be paid “to the
importance of seeking to protect the complainant from indignity and from
humiliating questions” the test of admissibility should be “whether the
A quick “check list” for a trial judge would read as follows:
1. Has the prosecution been notified of the intention to make the application?
2. Has the prosecution notified the complainant of his or her rights?
3. Has the complainant been afforded a reasonable opportunity to arrange legal representation?
4. Has the jury been sent out?
5. Has the public (except those persons entitled to remain) including the press been excluded
from the court?
If the answer to any question is ‘no’ then the application should not be heard, at least for the moment.
23
[2002] 1 A.C. 45, 84. The 4 US models were first identified by Professor Galvin: “Sheilding Rape
Victims in the State and Federal Courts: A Proposal for the Second Decade” (1986) 70 Minn. L. Rev.
763.
24
The Law Reform Commission in its report on rape (Law Reform Commission, LRC 24 – 1988,
Report on Rape and Allied Offences, at para. 25), having analysed the position in other common law
countries, made no recommendation as to whether a “specific exception” model should be adopted in
this jurisdiction or not.
25
[2002] 1 A.C. 45, 81
22
7
evidence (and questioning in relation to it) is nevertheless so relevant to
[an issue in the case26] that to exclude it would endanger the fairness of
the trial”27. If this test is satisfied then the evidence should not be
excluded. The provisions had to be interpreted in accordance with s. 3 of
the Human Rights Act 1998 to give effect to the right to a fair trial
protected by article 6.
Similarly, in Canada the provisions in s. 276 of the Criminal Code
(which originally followed a “specific exception model”) were challenged
in the case of R. v. Seaboyer28. In that case the Supreme Court of Canada
found the provisions to be inconsistent with the provisions of the
Canadian Charter of Rights and Freedoms. The basis of the court’s ruling
was that the section had the potential to exclude otherwise admissible
evidence which may be highly relevant to the defence.
In an erudite judgment McLachlin J. (as she then was), for the
majority, reformulated the common law rules as to admissibility of sexual
experience evidence. The judgment of the majority was adopted by the
legislature which amended s. 276 of the Criminal Code29.
The test provided for in s. 3 (2) (b) of the Criminal Law (Rape) Act
1981 to admit evidence of sexual experience is currently compatible with
article 6 of the ECHR since it leaves the admissibility of this particular
type of evidence to the discretion of the trial judge having regard to the
fairness due to the accused. However, the test can be criticised for being
neither clear nor precise. The purpose of the provision is to exclude
evidence of sexual experience except where to do so would be unfair to
the accused person. However, the language of s. 3 (2) (b) is far from
clear, certainly from a complainant’s perspective. The test to be applied
in this context should be as simple as possible to afford as much certainty
to the accused, the prosecution and the complainant.
The test is also imprecise. If the purpose of the restriction is to
exclude irrelevant evidence then the legislative provision should make
this clear. At the moment s. 3 (2) (b) could be interpreted to allow
irrelevant evidence. For example, if evidence is adduced that the
complainant had, for a time in her past, worked as a prostitute the defence
could argue that this evidence should be admitted under section 3. The
evidence may be irrelevant to the offence being tried since the
complainant would not have been working as a prostitute at the time the
offence was committed, and so this could not have affected the
In the context of s. 41 (3) (c) His Lordship used the phrase “the issue of consent”; however the
judgment has a wider application to any relevant issue in the case, not just the issue of consent.
27
[2002] 1 A.C. 45, 69
28
(1991) 83 DLR (4th) 193
29
The Supreme Court of Canada upheld the reformulated s. 276 in the case of R. v. Darrach [2000]
S.C.C. 46. In the words of Gonthier J.: “the current version of s. 276 is carefully crafted to comport
with the principles of fundamental justice” [2000] S.C.C. 46 at para. 3.
26
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defendant’s belief in her consent. Nevertheless, the defendant could make
an argument that if the evidence of the complainant’s history as a
prostitute was admitted the evidence would have an effect (albeit a
prejudicial one) on the jury’s deliberations in the case. Section 3 (2) (b)
provides that the evidence of previous sexual experience should be
admitted if “the effect of allowing the evidence or question might
reasonably be that [the jury] would not be satisfied” as to the guilt of the
accused. The section does not use the phrase “a jury properly charged”. It
is reasonable to assume that many jurors, being ordinary human beings
with their own personal prejudices, could take a poor view of a woman’s
evidence if they knew she was a prostitute in a former life and that such
evidence could have the effect that the jury would not be satisfied as to
the defendant’s guilt. It is difficult to contradict this line of argument
since the case is often made that sexual experience evidence should be
excluded since it has a negative effect on jurors even though the evidence
may not be relevant to the case30. Indeed, evidence that a woman was a
“common prostitute” has been found to be relevant to the issue of
consent31 and therefore admissible.
If an issue arose as to the admissibility of irrelevant evidence the
courts should take a purposive approach to interpreting s. 3 on the basis
that the test is ambiguous as to the admissibility of irrelevant evidence of
sexual experience32. The Irish test should, however, be amended to more
clearly reflect the purpose of the test and to ensure that irrelevant
evidence is excluded while relevant evidence is admissible in order to
ensure a fair trial and avoid an unsafe conviction. Furthermore, where an
application under s. 3 is granted to the defence it would be much easier to
On this point see McLachlin J. in R. v. Seaboyer (1991) 83 DLR (4th) 193, 258 – 259. See also
Galvin, “Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade”
(1986) 70 Minn. L.R. 763, 796. Although s. 3 (4) of the 1981 Act provides: “Nothing in this section
authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart
from this section”, it should be remembered that although the common law preferred to exclude
irrelevant evidence, for a long time, evidence that a woman was a “common prostitute” was admissible
at a trial of a sexual offence. See R. v. Clay (1851) 5 Cox 146. See also McColgan, “Common Law and
the Relevance of Sexual History Evidence” (1996) 16 (2) Oxford Journal of Legal Studies 275.
31
R. v. Greatbanks [1959] Crim. L.R. 450; R. v. Holmes (1871) L.R. 1 C.C.R. 334; R. v. Clay (1851) 5
Cox 146. See also the comments of Stephen J. in the case of R. v. Riley (1887) 18 Q.B.D. 481 at 485.
The common law position has been entirely discredited in the judgment of the Supreme Court of
Canada in R. v. Seaboyer (1991) 83 DLR (4th) 193. As McLachlin J. said at p. 258: “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”. As Lord Slynn explained in R. v. A. [2002] 1 A.C. 45, 54:
“the question must always be whether there was consent to sex with this accused on this occasion and
in these circumstances.” Although such evidence is not relevant to the issue of the complainant’s
consent, it may have a bearing on the accused’s belief in that consent.
32
At one point in the judgment in G.K. the court said: “it can not be denied that the admission of a
history of sexual activity with other boys of her own age commencing at the age of twelve and
concurrent with the time of alleged sexual abuse by the applicant passes the test of relevance.”
(emphasis added). But the court did not address the issue whether evidence must be relevant to be
admitted under s.3.
30
9
explain to a complainant that the trial judge made the decision to allow
the evidence relating to sexual experience because otherwise there would
have been a risk of an unsafe conviction in the case. At present one would
have to explain that the application was granted because the trial judge
made an “assumption that if the evidence was not allowed the jury might
reasonably be satisfied beyond reasonable doubt that the accused person
is guilty” etc. Such an explanation would no doubt provoke confusion in
the mind of the complainant: “are you telling me the judge allowed the
evidence because otherwise the jury would find him guilty?”
The test used in England and Wales under s. 41 of the Youth and
Criminal Evidence Act 1999 is not to admit the evidence unless the
refusal to admit the evidence would render a conclusion (by the court or
jury) on any relevant issue unsafe. This is a much clearer test. There is a
world of difference between saying evidence should be admitted to avoid
an unsafe conviction and saying evidence should be admitted on the
assumption that otherwise the jury might find the defendant guilty.
Unfortunately, the rest of the provisions in s. 41 of the Act are far from
clear or simple. It would not be wise to follow the example of s. 41 in this
jurisdiction for several reasons, most notably the incompatibility a
“specific exception” model of restriction may have with the European
Convention on Human Rights.
In Canada the equivalent restriction on sexual experience evidence
is set out in s. 276 of the Criminal Code which provides:
“(1) In proceedings in respect of [a sexual] offence …, evidence that the complainant has
engaged in sexual activity, whether with the accused or with any other person, is not
admissible to support an inference that, by reason of the sexual nature of that activity, the
complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the
charge; or
(b) is less worthy of belief.”
This part of the provision makes it clear that the purpose of the statutory
restriction is to discredit the “twin myths”. Even if sexual experience
evidence is admitted it cannot be used to reinforce the “twin myths”. The
provision continues by setting out the circumstances where sexual
experience evidence may be admissible.
“(2) In proceedings in respect of [a sexual] offence … no evidence shall be adduced by or on
behalf of the accused that the complainant has engaged in sexual activity other than the sexual
activity that forms the subject-matter of the charge, whether with the accused or with any
other person, unless the judge … determines … that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
10
(c) has significant probative value that is not substantially outweighed by the danger of
prejudice to the proper administration of justice.”
The essential feature of the Canadian provision is that relevance as to an
issue in the trial is a pre-requisite to the admissibility of sexual experience
evidence. This is something that is glaringly lacking in the provisions of
s. 3 of the Criminal Law (Rape) Act 1981. Objection might be taken to
the phrase “significant probative value”. This issue was considered by the
Supreme Court of Canada in the case of R. v. Darrach33. In that case
Gonthier J. found that the word ‘significant’ “on a textual level, is
reasonably capable of being read in accordance with” the fair trial rights
of the defendant protected by the Charter. He approved the judgment of
the Ontario Court of Appeal which found the expression “significant
probative value” meant that “the evidence is not to be so trifling as to be
incapable, in the context of all the evidence, of raising a reasonable
doubt”34. This interpretation is entirely satisfactory from the point of view
of the defendant’s right to a fair trial.
The provisions then set out eight factors that the trial judge must
bear in mind when deciding to either admit or exclude the evidence in
question.
“(3) In determining whether evidence is admissible under subsection (2), the judge … shall
take into account
(a) the interests of justice, including the right of the accused to make a full answer and
defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just
determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or
hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full
protection and benefit of the law; and
(h) any other factor that the judge … considers relevant.”
Conclusion
The Canadian provision has much to recommend it: (a) it declares the
purpose of the restriction which is to exclude irrelevant evidence and (b)
it offers detailed guidance as to when relevant evidence should be
admitted and the factors that should be considered by the trial judge in
admitting the evidence.
33
34
[2000] S.C.C. 46
R. v. Darrach [2000] S.C.C. 46 at para. 39
11
If a similar test were to be adopted in this jurisdiction35
complainants might be able to appreciate that the trial judge made his
decision having regard to the fairness due to the accused in a criminal
trial. The complainant may not be happy with the outcome of the trial
judge’s ruling, but at least s/he would be in a better position to understand
the reasoning behind it. Moreover, if a more detailed test were to be
adopted it would afford both prosecution and defence counsel a clearer
understanding of the legal position with regard to the admissibility of
sexual experience evidence. It would also provide a clear indication as
when sexual experience evidence should be admitted i.e. only when it is
relevant to an issue in the case and it has significant probative value that
is not substantially outweighed by the danger of prejudice to the proper
administration of justice. The refinement of the restriction in Canada
offers an excellent example to other common law countries. Firstly, the
clarity of the provisions makes the law easier for complainant’s to
understand and secondly its precision upholds the fair trial rights of
defendants with due regard to the complainant’s right to privacy and
respect. There is a strong argument for saying the Canadian model should
be followed in this jurisdiction in preference to the provisions of s. 41 of
the Youth Justice and Criminal Evidence Act 1999. Moreover, the right
to separate legal representation enjoyed by complainants in this
jurisdiction further enhances the desirability of adopting the Canadian
model in Ireland since the complainant’s lawyer will be in a position to
offer structured arguments in favour of restricting evidence of sexual
experience where appropriate. Indeed, the right to separate legal
representation would be inconsistent with, and unnecessary under, a
“specific exception” model.
Which might, for clarity, include a statutory definition of “significant probative value” to mean that
the evidence is not to be so trifling as to be incapable, in the context of all the evidence, of raising a
reasonable doubt in the minds of the jurors.
35
12