Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials

June 20, 2006

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This report evaluates the impact of s.41 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999, examining the extent to which the legal reform has achieved the intentions of parliament in limiting the circumstances in which sexual history evidence can be introduced in rape trials, and the impact of s.41 on attrition rates.

Some of the major findings included;

  • whilst sexual history is brought up in the majority of cases,specific questioning tended to be brief and to the point, and was used to subtly ‘sow seeds of doubt’.
  • Crown court procedure rules laying out the procedures for applications were often ignored or avoided, and some legal and non-legal practitioners displayed a lack of knowledge or understanding of the new law.
  • Sexual history material was raised in some cases involving minors with children being presented as sexually active rather than sexually vulnerable.
  • The introduction of sexual history evidence was associated with a higher rate of acquittal in cases that went to trial.
  • The possibility of sexual history evidence being used continues to be a factor influencing a victim’s decision to report and/or withdraw their complaint.
  • Failure to define the terms ‘sexual behaviour’ and ‘sexual experience’ has caused uncertainty as to the scope of section 41.
  • Findings from case files, observation and interviews raise the possibility that both prosecution and defence share stereotypical assumptions about appropriate female behaviour – and that these continue to play a part when issues of credibility are addressed in rape cases.

Available to view as an online report RDS OLR 20/06

Email: publications.rds@homeoffice.gsi.gov.uk

  • Authors:
    Liz Kelly, Jennifer Temkin, Sue Griffiths