‘It’s just common sense’: Sexual history and the failure of evidential relevance

by Professor Joanne Conaghan and Dr Yvette Russell, University of Bristol Law School.


The issue of sexual history evidence exposes a strange dissonance at the heart of rape law. On the one hand, the principle of sexual autonomy, which provides the normative grounding for rape law, recognises and purports to protect the right of any person to choose when, where, and with whom they have sexual relations. It thus entails a conception of consensual sex which is time, place, and person specific. On the other hand, the defendant’s right to a fair trial, a right which is both amorphous in substance and scope, and weighty in terms of normative significance, is believed to support the right of a rape defendant to bring to the court’s attention evidence that a complainant has engaged in consensual sex at other times, places, and even with people other than the defendant. How can this be? How can such two apparently incompatible positions co-exist within the same justice imaginary? Must one inevitably cede to the other or is it possible to envisage an ideal of criminal justice capacious enough to encompass both?

In our book, Sexual History Evidence and the Rape Trial, we confront and explore the perplexing and persistent problems to which the use of a complainant’s sexual history evidence gives rise. We adopt a multidisciplinary approach, drawing on insights from both the humanities and the social sciences, to mount an extended critical analysis of the use of sexual history evidence in the courtroom. We track the historical development of laws governing the use of sexual history evidence from their inception to the present day; we evaluate legal responses to the problem which the use of sexual history evidence is perceived to pose; and we assess the extent to which empirical studies bear out the claim that the use of sexual history evidence continues to pose problems of justice in the contemporary courtroom. Applying empirical, doctrinal, historical, philosophical, and psychoanalytical approaches to explore how and why sexual history evidence operates as it does in a forensic setting, our analysis highlights the continued embeddedness of contemporary criminal justice in law’s patriarchal past.

A key feature of our analysis is interrogating the concept of relevance. This concept provides the link between a complainant’s sexual history and the forensic enquiry, informing key facts at issue including whether consent has been given, the defendant reasonably believed that consent had been given, and the complainant’s testimony can be relied upon. Conventional wisdom tells us that a complainant’s sexual history is sometimes – albeit very rarely – relevant to such issues.  In R v Evans, for example, evidence of a complainant’s sexual behaviour with other men was held to bear upon the issue of her consent to sex with the defendant, while in R v A (No 2), evidence of prior sexual relations between the defendant and the complainant was held by the House of Lords to be relevant to the issue of consent as a matter of ‘common sense’.

We challenge this account directly, probing the foundations upon which claims of relevance are commonly built. We demonstrate how the ‘factual’ bases of claims of evidentiary relevance continue to be grounded in historically entrenched, gender-inflected perceptions of how men and women behave in sexual encounters.  Many of these perceptions are inconsistent both with modern understandings of sexual autonomy and a legal commitment to sexual equality. They apply gender-differentiated standards to judgments of sexual behaviour, the gist of which is to excuse perpetrators and blame victims, casting men as victims of their own biology and women as largely responsible for managing sexual risks. Indeed, notwithstanding an avowed legal consensus to eschew the ‘twin myths’ – the assumptions that unchaste women are more likely to consent to sex and are, in any event, less worthy of belief – as bases upon which claims of relevance can be founded, our research shows that these assumptions are still operative, albeit taking more subtle forms to link factual assertions about a complainant’s past sexual behaviour with the facts at issue in a rape trial.

To support such claims of relevance, lawyers have long drawn upon a stock of female ‘characters’: from jealous wives, to spurned mistresses; from flirts and femme fatales to women of ‘ill repute’. These gendered stereotypes power evidentiary claims of relevance. The language and allusions have changed over time and, as most empirical studies show, the casting of complainants in these fictionalised roles is now more subtly achieved, but the results remain the same: a complainant’s sexual past – or more precisely, a specific characterisation of a complainant’s sexual past – serves to override her right to sexual autonomy, her right to decide when, where and with whom she agrees to have sexual relations.

To support these arguments, we analyse situations in which sexual history evidence has been deemed relevant. For example, the fact that a complainant has had sex with the defendant before is often invoked to lend countenance to a defendant’s claim that she consented to sex on the occasion in question. This absurd proposition relies on an assumption that the complainant is more likely to have sex with the defendant than women in general. This may be true but tells us nothing about the sexual inclination of a complainant towards the defendant at a particular time and place. All it tells us is that, where there is some doubt as to the identity of the person with whom the defendant is alleged to have had sexual relations, the odds favour the complainant. In most cases of course there is no doubt as to the identity of the parties; the question is entirely different, namely whether sexual relations on this occasion were, or were not, consensual.

In R v A (No 2) Lord Hutton suggested that prior sexual relations between the defendant and complainant evidenced an ‘affectionate relationship’ between the parties, rendering her consent to sex more probable than if she was not affectionately disposed. Putting to one side the gaping hole in this story of tenderly devotion which the fact of the rape allegation itself reveals (that is, at some point in their alleged relationship, the complainant’s affections have become decidedly undisposed towards the defendant), the apparent existence of an affectionate relationship between two people who have formerly had consensual sex does not evidence a permanent disposition on the part of the consenting party to consent to sex for all time any more than a fondness for tea evidences a permanent inclination to accept a cup of tea at any time, place, or under any circumstances. All that it suggests is that, at some historical point in time, the complainant was more likely to have sex with the defendant than with another person, just as a tea drinker is more likely to drink tea than coffee when both are offered.

Our argument is that most claims of relevance in relation to sexual history evidence are fallacious, not just in the sense that they rely on assumptions about men and women’s sexual behaviour which are outdated and empirically false, but also that they are based on probability calculations predicated upon comparisons which are misconceived. The wrong things are compared to reach the wrong conclusions. Relevance claims may take a logical form: the facts in play are connected via syllogistic reasoning and the generalizations which support the facts are presented as conclusions which are inductively reduced. But the soundness of a syllogism depends on the soundness of the assumptions that support it; and the soundness of such assumptions depends on the soundness of the data upon which the assumptions are predicated. Where the data are flawed, skewed, or otherwise unsupportable, the conclusion, however logical in form, will be false.

It seems trite to state that knowledge is power, but this simple truism communicates an important insight about the relation between knowledge and social relations. If we accept the idea that knowledge is social, that socially instituted practices give shape meaning and value to what and how we know, then, inevitably, what how and we know is likely to be mediated by relations of power. Rape law, in its formation, development, and contemporary operationalisation, continues to reproduce the (hetero)sexual imaginary which drove the creative impulses of law’s patriarchal architects. The contemporary use of sexual history evidence in rape trials is part of that patriarchal inheritance, constantly re-enacting sexual roles and relations which are wholly out of sync with the gender egalitarian values we now purport to embrace.

It is for this reason that we welcome the provisional recommendations recently put forward by the Law Commission in relation to evidence in sexual offence cases. We particularly welcome the suggestion to subject sexual history evidence to a higher threshold of relevance as well as recommendations compelling greater transparency and accountability around decisions to admit sexual history evidence. We are under no illusions that these proposals will not be palatable to all; that the Criminal Bar is particular, will not welcome then. However, the time has come, we believe, to dislodge the grip of the patriarchal past on present sexual relations. This includes directly challenging those most taken-for-granted assumptions which continue to prop up fallacious claims of evidentiary relevance in relation to sexual offences.

Joanne Conaghan is Professor of Law and Yvette Russell is Associate Professor in Law and Feminist Theory at the University of Bristol Law School.

You can purchase the book from Bristol University Press here. Use code ‘BUP23’ at checkout for a 50% discount on the purchase price (valid until 1 December 2023). Join the authors in Bristol and online for a book launch on 30 November, 16.30 GMT, where they will be in conversation with Dame Vera Baird KC, Professor Nicola Lacey, and Dr Dominic Willmott.

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