A woman should be able to dress however she likes, have sex however she likes and act however she likes without being raped, right? Well, not according to our courts, a new report suggests.
Remember the Ched Evans case whereby the footballer had his conviction for rape overturned on the basis that the complainant - a woman who says she has no memory of sex with him - had, some other men testified, had sex in a similar way before and after the incident?
Only 25% of the ISVAs had not seen the sexual history of a complainant being brought up in court
Though the entire trial caused a lot of controversy, using the complainant’s sexual history as evidence in court was considered by feminist groups and legal experts alike as particularly unfair. It would put victims off of coming forward to report their rapes and sexual assaults, they claimed, for fear of their irrelevant sexual behaviour being dredged up in court.
And now there’s been an investigation into how many other complainants have had to deal with unfair questioning about their sex lives in court, even though they’re not meant to be on trial. Lime Culture, an organisation which gives sexual violence training to people such as counsellors, police officers and crisis workers, asked 36 Independent Sexual Violence Advisors (ISVAs), what they’ve seen. ISVAs assist people who have experienced sexual violence in court hearings.
And the results show only 25% of the ISVAs had not seen the sexual history of a complainant being brought up in court. On top of that, in 44% of cases the alleged victim wasn't warned about this line of questioning before the trial, and in 28% of cases, the alleged victim was never warned.
It seems that courts aren’t properly following the rules set out in a special piece of legislation. According to Section 41 of the Youth Justice and Criminal Evidence Act 1999, it is not lawful to treat a complainant’s previous sexual history or behaviour as evidence in court. The idea is, a woman who fucks in myriad ways, and has slept with legions of men, still, has the right to say no.
But there’s a loophole to this, the very same loophole Ched Evans’ lawyers took advantage of during his 2016 re-trial. The law states that a defence team may only introduce evidence of other sexual histories that is ‘in any respect, so similar that the similarity cannot be reasonably explained as a coincidence.'
He has called some men to throw discredit on [the woman’s] sexual reputation
Following Evans’ acquittal, over 40 Labour MPs signed a letter to the Attorney General Jeremy Wright and Justice Secretary Liz Truss calling for the law to be changed so that there is no case in which a rape complainant’s sexual history can be used to undermine her word. They warned that not only would it put women off from reporting, but in our social media age, one which has seen the complainant in the Evans case repeatedly named, investigators could crowdsource information on alleged victims' past sexual partners.
‘The ruling will act to encourage defence lawyers in rape trials to effectively apply for an individual’s completely legal and private sexual history to be admissible as evidence,’ the MPs wrote, reported The Guardian.
And former solicitor general, Vera Baird, said at the time that the only difference between Evans' conviction and subsequent acquittal, 'is that he has called some men to throw discredit on [the woman’s] sexual reputation. That, I think, is pouring prejudice.'
However, a bill proposed to close up this loophole, proposed by Harriet Harman, was scuppered by the snap election. The solution for now, according to Baroness Newlove, the Victims Commissioner for England and Wales, is to call for complainants to get independent advice when they’re about to be questioned on their sexual history, giving their legal team time to respond and say: it’s simply not on.
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This article originally appeared on The Debrief.