Introducing a complainant’s sexual history as evidence was, in theory, banned in most cases by the 2002 Sexual Offences (Procedure and Evidence) Act. But in the first three months of this year, there were 57 applications to use sexual history evidence, of which only 9 were refused. Prosecutors only opposed 6 of the applications.
Despite similar laws being in place in England, the sexual history of the complainant was made a central part of the footballer Ched Evans’ successful appeal against his conviction for rape. This evidence was described by Rape Crisis Scotland as “blatantly prejudicial,” and contributed to the campaign of public shaming, harassment and threats she experienced.
John is the Justice Spokesperson for the Scottish Greens. He has written to the Cabinet Secretary for Justice, Michael Matheson MSP, asking him to commission an in-depth review of how the law on sexual history evidence is applied, and whether it is doing enough to protect victims. The laws have not been reviewed in this way since 2006.
He has also lodged a parliamentary question asking what protections are in place to ensure victims are not further harmed by the public exposure of their sexual history.
“Victims of rape and other sex crimes are too often re-victimised by the ordeal of the investigation and trial. They should not suffer having their sexual history pulled apart in court in an attempt to discredit them – and, in theory, we have laws to prevent that.
“However, women going through the system regularly report being asked intimate questions about their sexual history. A Scottish Government data-gathering exercise found that in the first three months of 2016, there were 57 applications to introduce complainants’ sexual history in court, and judges refused only 9 of them.
“It has been 10 years since the last review of how our laws on sexual history evidence are working. We don’t know how many rape victims are being traumatised by unnecessary questioning, or how many cases are being prejudiced by character assassination – but the experience of charities like Rape Crisis Scotland suggests it’s too many.
“That’s why I’m asking for a detailed evaluation of how this law is operating in practice. If that study shows it doesn’t effectively protecting victims, the urgency of a new, stricter law that does will be undeniable.”