Law Commission of England Consultation Paper on Evidence in Sexual Assault Trials

The Law Commission of England has released a consultation paper containing a number of proposals to change the way that evidence is used in sexual offences prosecutions in England and Wales.

The gist of the proposals is to counter the effects of rape myths and misconceptions on the trial process, treating complainants humanely, and ensuring that defendants receive a fair trial.

Some of myths and stereotypes surrounding sexual assault are that an assault will always be reported promptly, and/or that victims will be visibly distraught when describing what happened. These myths do not reflect the variety of experiences of and reactions to sexual violence. 

Among the proposals that the Commission has submitted for discussion:

• A bespoke regime for access, disclosure and use of complainants’ personal records, including counselling notes. This regime would include judicial oversight of whether and how these records should be used, considering factors such as the complainant’s right to privacy and the importance of the records to the defendant’s case.
• New framework for restricting the use of evidence of complainants’ sexual behaviour and compensation claims. When deciding whether to admit this type of evidence, the judge would consider factors such as the risk of perpetuating myths and misconceptions and the defendant’s right to a fair trial.
• Giving complainants an automatic entitlement to measures to assist them to give evidence, such as giving evidence over live link, or in private (with an exemption that allows press attendance).
• Independent legal advice and representation for complainants, which would allow them to make informed decisions about the way their evidence is given and used, and to participate in decisions about the use of their sensitive personal information.
• The paper also considers the use of educational tools that could help minimise the impact of rape myths on jury decision-making. These could include, for example, the use of expert evidence to explain the complex physical and psychological responses to sexual violence.