R. v A (Complainant's Sexual History): The Case of Shielded (Alleged) Rapist

R. v A (Complainant's Sexual History)
[2001] H.R.L.R. 48
House of Lords
17 May 2001

Brief Summary:

The respondent was on trial for rape and his defense was that the complainant either consented to the sexual intercourse or he believed that she had consented.  He wished to question her at a preparatory hearing regarding the fact that they had had a previous sexual relationship.  However, he was prevented from doing so by the judge under section 41 of the Youth Justice and Criminal Evidence Act 1999, which, among other things, prevents a complainant's past sexual history from being introduced as evidence.  The respondent argued before the House of Lords that section 41 of the Act was incompatible with Article 6 of the ECHR (right to a fair trial) because it prevented him from introducing evidence that would assist in his defense.  The House of Lords agreed and reinterpreted section 41 under section 3 of the HRA to include a balancing test where the privacy of the complainant would be weighed against the defendant's ability to have a fair trial under Article 6.  If excluding the evidence would impair the defendant's right to a fair trial, the evidence must be allowed. 

The Facts:

In December 2000 the respondent was due to stand trial for rape. He alleged that for approximately three weeks prior to the date of the alleged rape, he and the complainant had a sexual relationship. His defense was that sexual intercourse took place with the complainant's consent or, alternatively, that he believed she consented.

At a preparatory hearing, counsel for the respondent applied for leave to cross-examine the complainant about the alleged previous sexual relationship between the complainant and the respondent and to lead evidence about it. Relying on section 41 of the Youth Justice and Criminal Evidence Act 1999, the judge ruled that the complainant could not be crossexamined, nor could evidence be led, about her alleged sexual relationship with the defendant and that the prepared statement could not be put in evidence. The respondent was given leave to appeal this decision, based on the ruling's possible conflict with Article 6.  The respondent did so.

Human Rights Argument:

The respondent argued that by excluding the evidence of his prior sexual relationship with the complainant, we was denied a fair trial under Article 6 because he was prevented from presenting exculpatory evidence.  The House of Lords noted that the mere fact that section 41 excludes some relevant evidence would not by itself amount to a breach of the fair trial guarantee. On the other hand, if the impact of section 41 is to deny the right to accused in a significant range of cases from putting forward full and complete defences it may amount to a breach.

The Holding:
According to the House of Lords, test of admissibility under section 41(3)(c) of the Act was whether the evidence (and questioning in relation to it) was nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under Article 6 of the ECHR. Section 41(3)(c) already allowed evidence where the prior sexual history was so similar to the complained act that the similarity could not be dismissed as coincidence.  The House Lords decided to expand section 41(3)(c)'s language to include  broader considerations of relevance judged by logical and common sense criteria of time and circumstances.

More specifically, the House of Lords decided to read section 41, and in particular section 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the Convention should not be treated as inadmissible. The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under section 41(3)(c). On the other hand, the Lords noted, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, e.g. an isolated episode distant in time and circumstances. Finally, it was left to the discretion of the trial judges to draw that line. 

Villain?
Tough to say.  An accused rapist who may have reasonably believed that the complainant was consenting.  Based on the complainant's statement - they were walking to the hospital to visit their friend and he pulled her to the ground on the towpath by the river - it looks pretty sketchy to me.  I'll call this one a villain.