I have today written a piece for iNews on Harriet Harman’s resurrected plans to ban all evidence of sexual history from the courtroom, and why this is quite simply one of the most dangerous and stupid ideas of recent times.

Full piece is here:


Angela Eagle Challenges Jeremy Corbyn For The Labour Leadership

thesecretbarrister Bad Law, Lawsplaining, Politics , , , ,

8 Replies

  1. I am not convinced that a case of child abuse is helpful in a discussion about rape, though I do understand where you are coming from.

    You will recall the case of a woman who made a complaint of rape; at the trial, evidence was given that she had a tattoo. The verdict was not guilty. What was not permitted to be introduced was the evidence that the woman was a lawyer. And, is it not the case that details of the defendants past record are ‘inadmissible’ evidence? Is the law really balanced?

    You also write as a lawyer, and this must raise the question; is the law to be the master or the servant? You imply that the ‘law’ is to be the master, whereas I’d say the law should accommodate the people who it is supposed to serve.

  2. How does a complainants history of instigating consensual bdsm have any bearing on an occasion of non consensual sex. I accept if in a case of he said she said that info seems helpful but wouldnt it just bias the jury in the defences favour therby allowing a rapist to wslk free

  3. Thanks for this piece. I still have some reservations about how the section was used in the Evans case, but you make a persuasive case that repealing it would be unlikely to achieve greater justice (or be compatible with human rights).

    And on the comment above: there isn’t a general ban on evidence relating to the defendant’s previous behaviour, but it can only be admitted on certain specific grounds, e.g. it relates to highly similar circumstances or the current case can’t be explained without it. Those grounds are rather more extensive than those on which evidence can be adduced on the complainant’s sexual history.

  4. I entirely agree with your analysis, but what I haven’t seen anywhere is any discussion on the fundamental difficulty with proving rape to the criminal standard which doesn’t really apply to any other crime. That seems to me the real elephant in the room. This is as follows:

    The physical act that comprises the crime of rape is the offender inserting his penis into an orifice of the victim. For it to be a crime there then has to be elements on the part of both victim and offender which are fundamentally mental: the former must not consent to the penile penetration and the latter must (at least) not reasonably believe there is consent.

    The difficulty in proving rape is that, in the vast majority of instances of the physical act (penile penetration) taking place, there is consent and the penetrator knows there is consent. Hence a rape suspect can generally fairly plausibly say (absent extraneous evidence) that there was consent in this particular case.

    That differs from other crimes. Take burglary. That also involves a physical act (e.g. breaking in a house and nicking stuff) and also a mental element (the victim not consenting to this). In theory, a burglary suspect could argue that the victim did consent to the breaking in and nicking and that would provide a full defence. However, the occasions on which someone would consent to this are so vanishingly small as to be non existent. Hence no sane burglar would run that defence and if he did, conviction would pretty much be guaranteed.

    The same analysis can be applied to just about any non sexual crime (“he consented to me punching him in the face”, “he asked me to racially abuse him”, “the shop said it was ok for me to take that Mars Bar without paying” etc etc): once you establish that the physical act constituting a crime took place, the argument that the victim consented to the act in question is generally utterly implausible.

    Compare and constrast with rape and sex crimes generally. The physical acts that comprise these crimes are, in 99% + of cases, a source of pleasure to people who engage in them. Hence, the difficulty, when it is a case of “he said, she said” of being certain that there was not consent (and no reasonable belief in consent). A defence that says “she had voluntary and enjoyable sex with me” is always going to be (in principle) beleivable in a way that a defence that says “I met him in the pub last night and he said that he didn’t want his computer anymore and that I should come round at 2am and take it, but not to wake him up” is not.

    That seems to me central in the difficulties in proving rape. I don’t dispute that there are issues around how women’s sexuality is viewed which have inluenced how rape is dealt with, but, given the above, even in a perfectly non-sexist world, it is never going to be as easy to prove rape as it is to prove burglary

    1. Or to do put it another way (and using some plausible figures and one made up figure).

      A1. In the UK in 2017 there will be aound 1 billion acts of a penis penetrating a vagina and/or anus (thats 20 million couples having sex 50 times a year)
      A2 In about 100,000 of those acts, the person penetrated will not consent to the penetration. (based on this https://rapecrisis.org.uk/statistics.php) = 0.01%

      B1. There will be around 700,000 acts of breaking into houses and taking stuff in 2017 (based on thishttps://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/crimeinenglandandwalesbulletintables)
      B2. In only around 100 cases will the householder have consented to this (this is the made up figure).

      Hence, the rape Defendant who argues that sex took place but there was consent has the stats on his side. The burglary Defendant who says the same is as plausible is more likely to win the lottery than be believed.

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