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Evidence of a woman's previous sexual history must not be excluded from rape trials, says Helen Reece

The lessons of sexual history

Nobody would want to have their sexual behaviour held up to scrutiny in the courtroom. Most of us have sexual secrets which we would be reluctant to reveal to our closest friends, let alone judge and jury. A woman who has been raped, and is then asked questions about her previous sexual experiences, will understandably feel that the cross-examination literally adds insult to injury.

But it is absurd to suggest that sexual history evidence is never relevant in rape cases. Take a couple of examples.

If a woman alleges that she has been raped, evidence of bruising on her body is often pretty damning. But it would be less damning if the defence were to produce evidence that the woman has a history of engaging in consensual sado-masochistic sex. If a woman alleges that she was raped by a mini-cab driver in his cab, we might be inclined to believe her: most women do not usually consent to sexual intercourse with mini-cab drivers in cabs. But the cab-driver's testimony that she did indeed consent might be more plausible if he produces evidence that this woman regularly consents to sex in the back of mini-cabs.

In both these examples the previous sexual history evidence is relevant to the issue of consent. Such evidence may, however, also be relevant to the defendant's belief in the woman's consent. A man who mistakenly believes that a woman is consenting to sexual intercourse is not guilty of rape. If, for example, a defendant being tried for a gang rape claims that he thought (he may accept now, mistakenly) that the woman was consenting, we might initially be disinclined to believe him, but if we are told that he knew that this woman had previously consented to group sex then it makes his claim more plausible.

One of the main arguments put forward for the exclusion of all previous sexual history evidence is that a woman has the right to say no, whether or not she has had sexual intercourse with the same man before, whether or not she is promiscuous or a prostitute, whether or not she has led the man on.

This is incontrovertible: a woman is entitled to have sex with a man every night for ten years, have sex with all his friends, wear a short skirt, invite him in for coffee and have oral sex; if she then refuses to have sexual intercourse, and if the man continues, knowing that she does not consent, then it is rape.

However, those who use this to argue for the exclusion of previous sexual history evidence make a simple but crucial logical error. They conflate the woman's consent with evidence of her consent. The fact that she had oral sex with the man does not constitute her consent to sexual intercourse, but from the jury's point of view it does constitute evidence of whether she did consent to sexual intercourse.

If we abstract the fallacy from a sexual context for a moment it becomes obvious. John accuses Jane of stealing his car; Jane says that John lent it to her. John has lent Jane his car several times before. He says that this is irrelevant, that he is entitled to change his mind and decide not to lend it to her any more. Of course he is right: it's his car. But if we do not know who is telling the truth, John or Jane, then the evidence that John lent Jane his car in the past is relevant to help us decide whether he did lend it to her on this occasion.

Another argument commonly heard is that sexual history evidence places the woman 'on trial'. This turns reality on its head. The woman is not on trial - the defendant is. It is easy to work this one out because he is the one who sits in the dock and (if found guilty) goes to prison for a very long time at the end. Of course cross-examination on previous sexual history will be embarrassing and intrusive, but it is shameful to compare the embarrassment suffered by the woman in revealing relevant evidence with the injustice suffered by the defendant if he is wrongly convicted of rape as a result of relevant evidence being excluded.

But, campaigners continue, it is only in rape trials that these intimate details are revealed. A complainant of a burglary would never be asked questions about her sexual past; therefore, they conclude, there is a double standard. This again turns the world upside down. In fact, evidence of a witness's previous behaviour is uniquely restricted in rape trials. Section 2 of the Sexual Offences (Amendment) Act 1976 prevents any evidence being presented or question being asked about the complainant's previous sexual experience with anybody other than the defendant, without the prior permission of the trial judge. The judge is allowed to give permission only if he is satisfied that it would be unfair to the defendant not to.

Of course the reason that questions are not generally put about a woman's history in a burglary trial is that her history is irrelevant. Generally in a trial for burglary the accused's defence is one of mistaken identity. It would be pretty difficult to run this defence at the same time as arguing that the victim consented. But where relevant, evidence of the complainant's previous behaviour would definitely be given in other trials. To return to the hypothetical example above, evidence of John's previous generosity would be admissible.

The reason that evidence of previous behaviour is more usually relevant in rape trials is that the dispute between the defendant and the complainant is often entirely at the level of the mind. Often there is little dispute between the man and the woman about what happened: they agree that they spent the evening together, and that they had sexual intercourse. What they disagree about is what was inside their heads: the woman says that she did not consent, the man says that she did; the man says that he believed that the woman was consenting, the woman says that he knew she was not.

This is the most difficult sort of case to find out the truth about; how can we know what was going on in somebody's mind? In this sort of case it is crucial that we have all the evidence we can get which might cast any light on what was going on at the mental level. Normally in non-sexual cases, the disagreement is more straightforward because the two sides dispute what actually happened rather than what they thought about it. But there is no necessity for evidence of previous behaviour to be restricted to sexual cases. For example, if Fred is accused of grievous bodily harm and he claims that he acted in self-defence because Mike attacked him, then evidence of Mike's aggressive behaviour and tendency to get into fights would be relevant and admissible, and rightly so.

The final argument used by proponents of excluding sexual history evidence is that such evidence will sway the jury too much - the jury will condemn the woman for her promiscuity and see her as unworthy of protection. This seems an unduly negative assessment of people's attitudes these days. Everybody except the dyed-in-the-wool backwoodsman accepts that women do not go around 'asking for it'. But even if some people do still have reactionary attitudes to women with a sexual past, ironically the law, by excluding evidence of sexual history, is encouraging these attitudes.

Excluding sexual history evidence in effect gives legitimacy to the idea that there is something shameful about sexual behaviour, to such an extent that women should not have to reveal it. It then leaves those on the jury who are so inclined to draw their own conclusions about whether the woman is 'dirty' or not, according to how she dresses or acts in court. Do we really want rape complainants to have to present themselves as nuns in order to prove that they are worthy of being taken seriously by the law? Surely it is better to put our cards face up on the table, look the backwoodsman straight in the eye, and hold our heads up high.

Helen Reece is a lecturer in Laws at University College London