Your sexual history as public property

cw: rape, sexual assault, the institutional misogyny of the justice system.

What follows is a long but hopefully informative essay about Scots law and sexual history evidence in rape trials, inspired by the horror show of Ched Evans’ acquittal yesterday. It’s interesting that common responses to the introduction of sexual history evidence at his appeal were “this is why victims don’t report” and “in rape cases, victims are the ones who end up trial”. It’s probably necessary that occasionally a high profile case will come along and get everyone talking about how society and the legal system in particular treats victims, but it’s also important to look at what’s happening with rape cases on a larger scale – these headline decisions taken alone aren’t necessarily illuminating as to the wider, systemic abuse that’s carried out the criminal justice system.

I’ll add a caveat here: i don’t know much at all about english criminal procedure and I’m hazy about the legal justification for allowing sexual history evidence in Ched Evans’ case. In Scotland however, legislation was introduced in 1995 with the intention of minimising the extent to which the sexual history or “character” of a rape victim was used as evidence for consent. The only exception was that a “section 275" application could be made to the court by the defence to allow the leading of such evidence where it was “in the interests of justice” to do so. In practice, this amounted to defence counsel verbally asking the judge’s permission during the trial to introduce prohibited evidence or ask certain questions of the complainer, usually arguing that it was in the interests of justice, and little time would be spent determining whether the victim’s sexual history was even relevant. It’s not surprising that the legislation was shown to be largely ineffective: section 275 applications were made in about 20% of cases, they were often successful and essentially used to damage the victim’s credibility by suggesting she’s likely to consent to sex with “anyone”, likely to lie, or of “bad sexual character”. It’s pretty clear why this is so inherently misogynistic, given that the victims in rape cases are overwhelmingly women.

Research into rape trials during the period following the 1995 Act found that the victims in Scottish rape trials were significantly distressed by these lines of questioning. From trials in the late 90s and early 2000s, more than 60% of victims were visibly or audibly upset during cross examination, whether crying, angry or unable to answer the question altogether. Defence counsel often went out of their way to harass and humiliate victims during cross examinations. One of Ched Evans’ lines of defence – the victim’s ex-boyfriend testifying that she ‘liked it rough” – is pretty well-worn amongst criminal defence lawyers, who frequently argued that bruising and torn clothes could just as easily result from rough consensual sex. Sexual history evidence was also led despite no section 275 application being made, and these breaches were essentially sanctioned by courts.

In response to the failings of the 1995 act, legislation was introduced in 2002 with the intention of further restricting the scope for introducing irrelevant sexual history evidence to attack the character of rape victims. Sadly it’s had entirely the opposite effect: the number of applications to introduce prohibited evidence more than tripled to being made in almost 75% of cases, and only 3% are refused. Under the 2002 act the application has to be made in writing two weeks before the trial and as such it’s become a standard part of a defence lawyer’s prep before a rape trial. They’re made as detailed as possible in the hope that at least some pieces of evidence or lines of questioning are permitted.

In reality at least 7 in every 10 rape victims who goes to court will be asked intimate sexual questions which could relate to: their mental health, their virginity (particularly in cases of teenage victims and including the contents of a medical report which states the absence of a hymen); their sexual preferences; their previous sexual partners; their recent sexual activity with the accused or others; their apparent “willingness” to have sex with the accused as demonstrated by accompanying him to a party, giving him their phone number or getting into a taxi with him; their use of alcohol or drugs; past allegations of sexual assault, unwillingness to report the assault to police or to have a medical exam. As recently as 2009, a rape victim at Edinburgh High Court became distressed and ran from the courtroom while she was being questioned about her sexual history. In a stunning display of the justice system’s callousness towards raped women, she was brought back to court, arrested and spent the night in a prison cell for failing to deliver her evidence. Lawyers are under no misapprehensions about why they introduce sexual history evidence: they are perfectly aware that the more they can portray the victim as a “lying slut” the more likely the jury is to disbelieve her and acquit. and still, sexual history evidence continues to make it to trial in the absence of any application to allow it.

The ordeal that Ched Evans’ victim experienced in court is one shared by the vast majority of rape victims whose rapists are prosecuted. Try as we might, it’s not possible to legislate away an ingrained structural hatred of women that pervades the courts, the press and the public. As well-meaning as #IBelieveHer no doubt is, on its own a twitter hashtag will do little for public opinion when what is needed is a sustained campaign of education that begins in schools as well as, to be frank, a thorough purge of our ageing male judiciary. For as long as women who are raped continue to be considered liars by default, for as long as their previous consent to sex is taken as continuing consent, they’ll still be degraded and retraumatised by the institutions and individuals who ought to be administering justice.