In March 2017, Harriet Harman proposed a legislative amendment to section 41 of the Youth Justice and Criminal Evidence Act 1999, which would have the effect of prohibiting at criminal trials any questioning or evidence concerning the previous sexual behaviour of a complainant alleging a sexual offence. This week, Ms Harman reportedly confirmed that she was pursuing this amendment, and I provided my thoughts on why this is a dangerous and ill-thought out idea here

Back in March, criminal silk Simon Myerson Q.C. took the time to correspond with his MP, Anna Turley, over the planned amendment. He has very kindly permitted me to republish his note, in which he addresses the flaws in Harman’s Law, and offers his own proposal on how perceived shortcomings in the prosecution of sexual offences involving the issue of consent might be addressed. I understand that Anna Turley MP has yet to respond.

Simon Myerson Q.C.

Rape and Section 41 YJCEA 1999

Current Position

S41 Youth Justice and Criminal Evidence Act 1999:

  • Re consent, no cross-examination about Complainant’s (C’s) sexual behaviour without court’s permission.
  • Permission only if:
    • A conviction would otherwise be unsafe; and
    • Relates to behaviour at same time or is so similar that it cannot be explained as a coincidence; and
    • Must relate to a specific incident or incidents.


Suggested Amendment

To ban such evidence in all circumstances.


The Result of the Amendment

Necessarily, to ban evidence which might prevent an unsafe conviction. There is no way around this conclusion.

To remove from the judiciary the freedom to determine what makes a trial safe and to replace that freedom with a direction from the legislature that unsafe convictions are acceptable in rape cases.


The Problem

This should be self-evident. But it would create the additional problem that, in cases in which cross-examination would currently be allowed, were this amendment passed, the Judge would still be entitled to stop the case on the basis that the accused cannot have a fair trial. The Court has an inherent jurisdiction to do so, but is also constrained by Art 6 ECHR, which provides the right to a fair trial. The refusal to admit evidence that may mean the prosecution cannot prove its case is patently unfair.


The Reality

There are essentially 4 types of rape for these purposes:

  • Genuine ‘stranger rape’ where a woman is violently assaulted. Very rare and almost always result in conviction because consent rarely the issue.
  • Semi-stranger/friend rape. Typical scenario – meet on night out. Woman gives good evidence of not consenting. Again, relatively few problems in obtaining conviction.
  • As above but everyone drunk. See below.
  • Marital/relationship rape. Has difficulties but not really the focus because lack of consent proved by other factors – fighting, separation, confiding in family etc.

The real issue is the drunken night out. Can we leave aside political considerations here please? I have 4 daughters and I most assuredly tell them that rapists cause rape. I also tell them that the best way to avoid rape entirely is to take personal responsibility for themselves by staying relatively sober, texting regularly (family or friends), not leaving without telling someone and saying who with and not having sex unless they know the person.

What typically happens is that a group go out together. They all get drunk – so drunk that the next day they cannot remember what happened with any clarity. Frequently, one girl gets detached from the group. They do not know where she is and often do not look. She goes off with a man, consensually. That can be seen on CCTV. They go somewhere together and he has sex with her. The next day she is appalled. She may very well not have consented. She says she didn’t. She also says he tricked her into coming with him/has no idea who he was/didn’t want to be anywhere near him. The CCTV shows that at least some of that is wrong. She is cross-examined on the basis that a) she wants to get him into trouble to excuse her own shame and) she can’t remember anything, including giving consent. He says that she consented.

Another scenario: the group leave together with a group of lads, or some new lads they’ve met that evening. They go back to someone’s flat. Some kissing happens. Then a lad takes a girl into a bedroom. Same thing as above. The friends all remember the kissing. No one knows the rest of it, or they are so wasted they can’t remember.

That is the depressing reality. Of course, drunken consent is not consent. But the prosecution must make the jury sure that the man did not reasonably believe in the consent. He says he asked and she was all for it. If he is disbelieved, he is convicted. But it is terribly difficult for a jury to disbelieve him when the woman herself does not remember what happened. Q: “Is it possible that after a good evening, you may have said to him that you wanted sex, even though in the morning you would not have said yes?” If the answer is yes, it’s an acquittal. If the answer is no but the jury don’t believe it, it’s an acquittal.


Notable Point

S41 is nothing to do with this at all. S41 arises in a very small number of cases and is granted in even fewer. There is what purports to be as study carried out by a group appointed by Vera Baird. I’ve read those cases. There are 15 – a tiny fraction of rape cases and far too small to be anything more than an anecdotal collection. Of those 15 only 3 involved S41 applications. I would only have granted 1. S41 is not the problem.

S41 is important because it guards an accused – who we remind ourselves is an innocent man until convicted (I always find it helps to think of him as my father) – who describes behaviour that is so exceptional that the evidence of C that she did not consent, should properly be assessed against the evidence that she indulged in the same behaviour on an occasion when she did consent. The argument is that if she consented on that occasion, isn’t that evidence that she consented on this occasion. It is an argument, no more. The jury can reject it. But the evidence is admitted if the Judge decides they could accept it and that, in those circumstances, if they did not know about it, they may not be making a fair decision.

In the Evans case, the evidence was admissible because a) it was an account from 2 people on separate occasions each other and the accused that C was capable of having sex when very drunk; and b) that she was an active participant using the v precise words and positions described by the accused. That went both to the issue of whether this was non-consensual at all (C had never said so – merely that she did not remember), and whether the accused might reasonably have believed in consent if so.

Without that evidence Evans was convicted. With it, he was acquitted. What Harriet Harman seeks to do is to preserve the position where someone is convicted, even though the evidence might lead to acquittal. She wishes to do that by preventing the jury even hearing that evidence, because she has decided it is wrong to let them do so. That is neither her job, nor remotely appropriate.


The Bad Arguments

Why should the current position be changed? There is no evidence that it results in unfairness on the current law as it stands. Research shows that juries do understand the evidence they hear and the directions the judge provides.

Thus the arguments should focus on the law. Is the offence of rape sufficient to include occasions where a lack of consent cannot be proved, but the way in which the man has behaved plainly takes advantage of the woman’s position at the time?

However, Harriet Harman’s argument does not focus on the law. It focuses on manipulating the current procedure so as to alter the result. Once we permit politicians to prevent the admission of evidence because the evidence produces the ‘wrong’ result, we will not be able to resist it happening again. Ask yourself, what would Farage do with such a provision and alleged Islamic terrorism? Should we refuse to permit juries to hear evidence that bankers had seen senior figures doing the same things as had led them to be charged with dishonesty, and had thus concluded it was not dishonest? Evidence such as this is not a defence unless the jury accepts it. If it is rejected the conviction is fair. But a conviction that does not allow a jury to hear that evidence is unfair.

Moreover, the basis of the argument rests on the belief that jury verdicts are regularly ‘wrong’ and the procedure should thus be tampered with, to achieve the ‘right’ result. That is neither healthy nor proved. We assume that once delivered, jury verdicts are correct, unless the summing up is wrong. The jury’s deliberations are sacrosanct. How on earth is it possible to assume they are wrong?

And, if they are wrong, then the logical answer is to have trial without jury. Fiddling with the procedure, if juries do not get it right, is hardly a courageous answer. Rather, it is a fudge, which imperils rape victims because it still leaves them open to injustice, and everyone else – either for the same reason or because it encourages executive action to restrict the evidence a jury can hear.


A Possible Solution

In reality, juries probably get these decisions right. The difficulty is that we have a crime in relation to which the prosecution must prove the negative – that the accused did not reasonably believe C consented.  

A further difficulty may be that sentences for rape are very high. Many lawyers believe (admittedly on no very good evidence) that this makes juries even more reluctant to convict. Or, perhaps, it means they take being ‘sure’ very seriously.

An answer is an offence that takes consent away.

Taking sexual advantage is a possible offence in this way:

A man (M) commits an offence if he penetrates another person (using the existing language of the Sexual Offences Act 2003) in circumstances in which, whether that other person has indicated consent or not, a reasonable observer would conclude that M could not be sure that consent was either voluntary or informed, and that M took no reasonable steps to ascertain the real position.  

I do not pretend this is necessarily flameproof as it stands, and it certainly needs further thought. But it represents a real attempt to transfer the risk of drunken stupidity to the penetrator not the penetratee. It would be mitigation that the man had believed the woman had appeared to consent but it would not be a defence unless M was sure that there was consent having taken reasonable steps to check. If the woman can’t say yes, or says yes because of drink, or isn’t sure what happened, that would all be sufficient to convict. The sentence would, necessarily, be less. The conviction rate would, I believe, soar.


Simon Myerson Q.C. practises from St Paul’s Chambers, Leeds and Byrom Street, Manchester, and specialises in Civil and Criminal Law. He is currently representing 40,000 Kenyans in their claim against the Foreign Office relating to events during the Mau Mau Emergency in the 1950s. Simon tweets at @SCynic1.

15 Replies

  1. You say:

    “Research shows that juries do understand the evidence they hear and the directions the judge provides.”

    I don’t doubt that this is correct; but I thought it wasn’t permissible to question juries, so how do we know this? (Or am I mistaken?)

  2. Drunken consent is consent. That is the law. Incapacity through alcohol intoxication requires that an individual who otherwise has the capacity to consent is incapable of giving consent due to involuntary or voluntary intoxication. Proving this requires of incapacity, not just intoxication, and that the defendant could reasonably be presumed to know that the said individual lacked capacity. In such case prior sexual history is invariably likely to be relevant, and a decent brief will introduce it through hook or crook. The simply solution is to stop prosecuting cases where there is no direct evidence of incapacity when the intercourse actually occurred.

  3. I don’t see how your proposed new offence has any relevance to the issue of section 41.It is still a sexual offence, so it would be subject to s41 in the same way as existing sexual offences. In other words the complainant’s sexual history would still be inadmissible by default, and the same exceptions would apply. And I can’t see that it would have made any difference in the specific case of Evans. Am I missing something?

  4. I am appalled at the sexist suggestions, and I fear also at existing English law, for making sexual offenses that by definition can only be committed by men. If that is indeed your law it becomes somewhat understandable that you, a lawyer, would understand sexual offending entirely in terms of men offending against women. Not acceptable, not at all, but somewhat understandable.

    I think both your approach, and possibly English Law, should be updated to match the 20th century understanding of sexual offending. Not just the ridiculous notion that only penetration, and only by a male, can be sexual offending, but the possibility once that requirement is removed for both parties to be convicted for the same act. Viz, “failure to obtain meaningful consent due to drunkenness” is something that often both parties could be simultaneously guilty of. I suggest publishing your proposal puts you in danger of the offense of “bringing the law into disrepute”.

  5. Korhomme: the research is based on asking juries what they thought without going into the details and also (as I recollect it) on shadow panels who hear the evidence but don’t decide the case. Google Cheryl Thomas who’s the person doing it. Interesting stuff.

    Snoozeofreason: you’re right about S41. I was trying to go a bit wider and address the issue of the low conviction rate, which has prompted Harman’s proposal.

    Moz: in your haste to be offended you have failed to acquaint yourself with the basic understanding required. Penetration isn’t confined to men. It isn’t now and it wouldn’t be under my proposal. Nor is it in real life. Without going into grimy details, you should look at those things attached to your hands. Nor is there an offence of bringing the law into disrepute. The law is strong enough to maintain its reputation even when attacked by cabinet ministers and the Daily Mail.



    1. Simon, thanks for that. I did have a look, and found that Cheryl Thomas is a professor of judicial studies and investigates juries and also judges.

      As you say, the jury research included talking to real jurors after real trials, in as far as she was permitted; and also the use of ‘panels’ as ‘proxy’ juries. While this seems reasonable, it’s always the case that if you know that your activities will be monitored and questioned, that your activity will be altered. (Psychologists investigating some facet usually lie to candidates telling them that they are investigating X while they are really investigating Y to try to avoid this.) Still, this is better than nothing, for previously we have had only lawyers’ beliefs.

  6. Returning for a moment, to the issue of the Evans case. it seems to me that many people have got the wrong end of the stick about the use of sexual history in it. Well, either that, or I’ve got the wrong end of the stick.

    There seems to be a false impression that the defence was trying to argue that the alleged victim was “easy” in some way. So far as I can see that wasn’t the point, and neither the the appeal court nor the trial judge would have allowed it to be the point. The crucial issue (in my non-expert opinion) was whether Evans’ account of events was factually correct. In other words did the alleged victim say the things he claimed she said, and do things he claimed she did? If she did then Evans would fairly obviously have a reasonable belief in consent (in fact enthusiastic, albeit drunken consent). And it would be hard to argue that she was so drunk as to lack the capacity to consent, unless you think that she could be capable of giving him a reasonably detailed description of what she wanted him to do, and at the same time be not capable of consenting to those things being done.

    Of course if Evans was just making things up, then that would change the picture completely. But in order to make up an account he would have to guess at the alleged victim’s preferences and typical behaviour. That’s where the sexual history comes in. It demonstrates that his account of her tastes and behaviour accorded with other accounts of her behaviour. Those accounts were *not* introduced in order to cast aspersions on her morals, but simply to indicate what her preferences were. Of course a jury wouldn’t have been able to discount the possibility that Evans had just made a lucky guess, and if he was required to prove his innocence then the additional evidence would have made no difference, but a defendant isn’t required to prove his or her innocence, merely to provide the court with reasonable grounds to doubt his or her guilt.

  7. If Harriet Harmon’s new law is passed, the effect will be to prevent ANY trial where the man wants to present a defence beyond a cursory denial. A meaningful defence necessarily discusses the complainant’s sexual behaviour, which would no longer be allowed. Article 6, trial stopped, lives blighted.

    The author’s suggested alternative of taking sexual advantage has three fatal flaws. Firstly it allows criminalisation of otherwise legal and consensual acts by overlaying a jury’s moral conception of the sort of sex the defendant and complainant ‘should’ have been having. Secondly, there’s an Article 7 issue because the participants cannot know in advance whether their proposed conduct is or isn’t legally prohibited: it depends on others’ value judgement of it ex post facto. Lastly, the notion that consent can be voluntary or not is confused, to say the least. Far too much second guessing and telepathic sleuthing to allow results in which the public can have confidence.

    I suggest instead a return to some simple definitions and required standards of evidence. Consent is only absent where it is overridden by force or stupefaction. In both instances, there would be real evidence of injuries or blood alcohol/drug levels. Without these, no trial, no more he said she said bs.

    But this Harman law is nothing to do with determining who has done rape and who hasn’t, and so it is natural that it makes no sense for that purpose. It’s designed to help create a socially and economically disenfranchised class of mainly white middle class men, in line with Marxist social justice theory. And in that context it makes perfect sense and will be very effective.

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