S.S.

JAIN SUBODH LAW COLLEGE

COMPLIANCE OF EVIDENCE ACT IN SEXUAL OFFENCES

Submission To: Submitted By:

MS. BHAVYA GANGWAL ASHISH SHARMA

ASST. PROF. OF LAW Roll no: - 08

VIII Semester

S.S. Jain Subodh Law College

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 CERTIFICATE

To whomsoever it may concern, This is to certify that, the dissertation titled

“COMPLIANCE OF EVIDENCE ACT IN SEXUAL OFFENCES” submitted by Ashish
Sharma in fulfillment for the award of the degree of B.A.LL.B. at S.S. Jain Subodh Law
College is the project of research carried out under my guidance and supervision.

Ms. Bhavya gangwal

Asst. Prof. of Law
S.S. Jain Subodh Law College

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 AKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Ms. Bhavya
gangwal for inspiring me and guiding me during the course of this project work and also for
her cooperation and guidance from time to time during the course of this project work on the
topic “COMPLIANCE OF EVIDENCE ACT IN SEXUAL OFFENCES”.

Date:
Place: Jaipur
Ashish Sharma

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 RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic COMPLIANCE OF
EVIDENCE ACT IN SEXUAL OFFENCES forming a concrete informative capsule of the
same with an insight into its relevance in the Indian market.

Scope and Limitations:

In this project the researcher has tried to include different aspects pertaining to the concept of
COMPLIANCE OF EVIDENCE ACT IN SEXUAL OFFENCES.

Data Collection:
The following secondary sources of data have been used in the project-
 Websites
 Books

Method of Writing and Mode of Citation:

The method of writing followed in the course of this research project is primarily
analytical. The researcher has followed Uniform method of citation throughout the course of
this research project.

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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), 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 Office. 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.

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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 defense to a charge of sexual assault. However,
admitting evidence of a complainant’s sexual experience has long been criticized as
perpetuating the “twin myths” that by reason of her past sexual behavior a
complainant is (a) more likely to have consented to the sexual activity in question
and (b) less credible as a witness. Lord Stein observed in the case of R. v. A. that
“generalized, stereotyped and unfounded prejudices ought to have no place in our
legal system.” 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.”

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”. 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.

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Section 3 of the Criminal Law (Rape) Act 1981

Section 3 of the Criminal Law (Rape) Act 1981 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,:-

“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 2006. The Act of 1990 also
extended the restriction to exclude evidence of sexual experience with the particular
defendant. Prior to 1990 a complainant (or other witness) 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 restriction. 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 tried. 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:-

The People (D.P.P.) v. G.K.

In the case of The People (D.P.P.) v. G.K. 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

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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 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 cross-examination 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 utilized as a form of character assassination”.

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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. 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 accused.
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 application. The complainant does not have to satisfy the
means test but must still apply for a legal aid certificate.

The following procedure must be complied with when an application under s.

3 is to be made:-

 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 concerned.

 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.

 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 opportunity.

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  The judge shall not hear the s. 3 application without first being satisfied that
steps 1 and 2 have been complied with.

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 area. These models vary between leaving the matter of
admissibility almost entirely to the discretion of the trial judge (which is the position in
Ireland) 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”.

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 evidence (and questioning in relation to it) is nevertheless so relevant to [an
issue in the case] that to exclude it would endanger the fairness of the trial” 1. 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. Seaboyer. 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 Code. 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

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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 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 case. Indeed, evidence that a
woman was a “common prostitute” has been found to be relevant to the issue of
consent 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 experience. 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 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

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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.

Conclusion

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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. If a similar test were to be
adopted in this jurisdiction 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.

Bibliography

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Books:
 Prof. S. N. Mishra – The Indian Penal Code
 Prof. T. Bhattacharyya - The Indian Penal Code
 Ratan Lal & Dhiraj Lal – The Indian Penal Code

Websites:
 http://www.lawof.in
 http://youngarenalitigators.blogspot.in

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