Limiting the use of complainants’ sexual history in sexual offence cases
This report considers the law on the admissibility of complainants’ sexual history in sexual offence cases in practice.
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Section 41 of the Youth Justice and Criminal Evidence Act 1999 (“section 41”) provides critical protection for complainants in sex offence cases, by restricting the introduction of a complainant’s sexual history by the defence in sexual offence cases.
Under section 41, in general, evidence or questions about a complainant’s previous sexual history are not allowed in sexual offence trials. The only exceptions are where a very strict set of criteria are met.
We have been carefully looking at how the law is working in practice and this report outlines the results of this work.
We asked the CPS to analyse 309 rape cases finalised in 2016 to determine the frequency and outcome of applications under section 41. The CPS audit found that:
- in the overwhelming majority of cases (92%), the judge did not permit an application to introduce sexual history evidence under section 41
- applications under section 41 were only made in 13% of cases.
These findings strongly support the view that the law is operating as Parliament intended, and strikes a careful balance between the need to protect complainants and ensuring that defendants receive a fair trial.
Whilst this is reassuring, we will continue to ensure that section 41 operates effectively and build on existing work to support victims and witnesses in sexual offences cases. It is vital that victims of sexual offences know they will receive this protection in court, and have the confidence to report such devastating crimes.