A Critical Evaluation of the Admission of Previous Sexual History Evidence in Northern Ireland: Prevalence, Impact and Reform.
A Critical Evaluation of the Admission of Previous Sexual History (PSH) Evidence in Northern Ireland: Prevalence, Impact and Reform.
The admissibility of previous sexual history (PSH) evidence in sexual offence trials has been a longstanding source of debate and legislative reform attempts across the United Kingdom. The term ‘sexual history evidence’ refers to any information provided during a trial to do with specific sexual acts, as well as more general sexual behaviour and character. There is currently a general ban on the admission of PSH evidence, however it can be admitted within a limited set of four exceptions.
PSH is one of the most perceptible expressions of rape myths during trial. This is done, namely to evoke the ‘Twin Myths’ i.e., to undermine the credibility of the complainant and/or to infer consent. These notions are built upon false and prejudicial beliefs about sexual violence, and generate hostility for victims. This is problematic as such questioning is re-traumatising and humiliating for complainants and may put others off reporting. This has occurred, historically, to the extent that the trial experience has been termed a ‘second rape’.
The landmark Ulster Rugby rape trial in 2018 highlighted the need for urgent reform for prosecuting serious sexual offences in Northern Ireland (NI), and brought the issues of PSH evidence to the foreground of public/legal concern. In April 2018, the Criminal Justice Board NI commissioned an independent review, led by Sir John Gillen, to examine the existing law and procedures in these cases and the final report produced sixteen key holistic recommendations. In the NI socio-political context, one of the most notable was the need for: “A more robust judicial attitude and case management approach to prevent improper cross-examination about previous sexual history”. Currently, there are no statistics available on PSH evidence in NI, however figures in similar jurisdictions suggest the law may not be working as intended, and that PSH is routinely being admitted. It is crucial to provide a timely NI perspective on this ubiquitous issue. This research is funded as a Collaborative Studentship with the Department of Justice (DoJ) and has been co-designed with the Gillen Review Implementation Team. As such, the findings from this study will be used to provide policy recommendations to the DoJ.
This study focuses on prevalence (how common PSH is and if procedures are followed), nature (what type of PSH is utilised most), impact (the effect on complainants’), and possibilities for reform. A qualitative approach makes up the methodological design, with 30 one-to-one semi-structured interviews having been conducted, with recruitment ongoing. Participants include stakeholders in the criminal justice process, each with a notable level of experience/knowledge – judges, prosecutors, defence barristers, victim support organisations and victim/survivors, to name a few. Initially it was envisaged that a sample of audio casefiles/court transcripts would be analysed, however access was revoked. It is a noteworthy finding that governmental and Gillen-backed research on sexual violence and the justice system was not permitted to be conducted.
Whilst currently in the early transcription and coding phase, there are some key issues emerging, however further robust analysis needs to be conducted. In terms of prevalence, there is a divergence regarding how common this type of evidence is; however, a clear split in key stakeholder views is preliminarily apparent. Some believe it is a recurrent, common issue, whilst others believe it is rare or infrequent. From the different stakeholders’ perspectives, it is interesting that there seems to be a discrepancy in understanding regarding how PSH evidence is applied and implemented at trial. In terms of the victim/survivors interviewed so far, some of them have had it come up in their trials. It seems like applications are not common, and so statistics could reflect low admission. However, as with other international jurisdictions, there is still the possibility it could be indirectly mentioned at trial. The picture will become much clearer upon analysis.
To understand the nature of PSH will, as mentioned, also become apparent following comprehensive analysis, however there were, anecdotally, a number of participants who could identify one or more ostensible usage of PSH evidence that stuck out to them as either uncomfortable or characteristic of the twin myths. Regardless, each victim/survivor interviewed in this study still deemed the experience to be wholly traumatic. As such, the impact of this evidence seems severe. It was considered embarrassing, devastating, and a main reason many would advise others not to go through the criminal justice system. Recommendations have not yet been formulated, however it has been extensively acknowledged that the nature of sexual offences make them untenable to deal with in the current system. Practical solutions can be put in place, whether they are for support or justice, but the core adversarial problem, perhaps needs to be reckoned with.
About the author -
Chloe Templeton is a third year PhD student in the School of Law at Queen’s University Belfast, conducting research on the use of previous sexual history evidence in sexual offence trials in Northern Ireland. Her research has been commissioned by, and is in collaboration with, the Department of Justice, following the publication of the Gillen Review in 2019. This research provides a timely and contextual NI perspective, by reviewing the current law of evidence and how it is being applied in practice. Importantly, the study is grounded in feminist sociology and feminist legal scholarship, with an aim to produce recommendations that will promote positive change in the criminal justice process.
Contact details:
Email: ctempleton02@qub.ac.uk.
Twitter: @chloetempleton_
