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Is Sexual History Relevant In Sexual Assault Cases?

On 14th October, Ched Evans was acquitted of raping a 19-year-old girl, arguably, because of the accounts of two new witnesses; previous sexual partners of the victim. This controversial move to allow these testimonies in the re-trial was dubbed by the campaign group Women Against Rape as setting “a dangerous precedent to allow irrelevant sexual history evidence” and opens “the floodgates to trashing the woman’s character in any rape trial once again.” So I am left asking myself this: if victims will face the added burden of being humiliated based on their sexual history in court, is there any hope for victims?

In fact, Section 41 of the Youth Justice and Criminal Evidence Act 1999 was written specifically to restrict evidence or questions about the complainants’ sexual past. Yet there is a loophole to this clause in the act, which is used by many defence lawyers to their advantage. If the sexual history of the victim can be argued to be similar to the alleged assault, then the evidence can become relevant in order for the alleged offender to defend himself. In the case of Ched Evans, one of the witnesses had slept with the 19-year-old girl that same weekend and the other had two weeks following the incident; both claimed that she was drunk at the time but it had been consensual sex. Evan’s whole case was predicated on this idea of consent. Could a women be drunk and still give consent? The law clearly states if a woman is incapacitated, whether through drugs or alcohol, then she cannot give consent. So the fact that the whole concept of consent can be turned on its head because the victim’s sexual past was dragged through the mud makes me very uncomfortable.

(Photo Credit: The Guardian)

It leads us to ask ourselves the question of whether or not sexual history is irrelevant or not in cases of sexual assault. What I do understand though is that every person accused of a crime is allowed the right to defend themselves – “Innocent until proven guilty.” I can’t help but feel sympathetic for men who are found to be falsely accused, especially as unlike the victim, their identity is not protected. In sexual assault trials therefore, the perception of guilt is strong – it becomes a case of guilty until proven innocent.

So if the sexual history of an alleged victim can show a pattern that proves the man to be innocent it is debatably unfair not to use it. Evan’s defence lawyers argued that if the woman had previously allowed men to have sex with her consensually while drunk, why was the situation with Evans different? The implication is that she must have accused him of rape because he was famous. Whether or not this was in fact the case, the argument is plausible and clearly put doubts in the jurists’ minds.

Yet should a potential victim really have to have her sex life on trial? My answer, as a woman, is no. Exposing a woman’s sexual relationships in public is extremely unhealthy and inappropriate. It almost suggests that if you have already had sex what does it matter if someone rapes you? You have already acted like a “slut”, so why should you have our sympathy? Weren’t you asking for it?

(Photo Credit: The Metro)

 Vera Baird, the Northumbria Police and Crime Commissioner, stated that the Evan’s case was a throwback to 30 years ago. In the 21st century where we have made incredible progress in promoting equality of gender, race and sexuality, we fall short at protecting women from slut shaming. Slut shaming essentially encourages us to view women who have been ‘promiscuous’ with less respect and in need of less protection.

In the case of the 15-year-old Lindsay Armstrong, simply the ordeal of revealing to the court that on the day of her assault she was wearing a thong that had written on them “Little Devil” was mortifying and contributed to her decision to taking her own life. How was that relevant to the case? To put it simply, court trials are already traumatising for the victim even before putting their sex life on trial.

And with only half of rapes actually being reported and statistics proving that fewer than one rape victim in 30 can expect to see her rapist brought to justice: How can we encourage more women to bravely step forward about assault if we further victimise them in this way?

            ‘”Whatever we wear, wherever we go, Yes means Yes, and No means No!”

If we are attacked, we are attacked. There is no justification and no excuse. Yet under the law, technically the sexual history of the victim is still relevant. And as a woman, I struggle with this.

(Photo Credit: Socialist Worker)





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