The Section 41 Approach In Sexual Offence Trials Law Essay

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Historically, the prejudicial effect of rape myths and sexual history evidence has been problematic for the courts in sexual offence trials. In 1999, Parliament enacted s.41 of the Youth Justice and Criminal Evidence Act to place stringent restrictions on sexual history evidence. However, these provisions have caused some difficulties for the courts. While the landmark case of A(2) resolved some of the issues, it will be put that the law remains vexed and, once again, in dire need of reform. A new approach is required which does not exclude evidence from consideration by the jury. Instead, rape myths need to be attacked directly, so they can be eradicated, and their impact neutralized. This discourse will be prefaced by a discussion of the events leading up the 1999 Act, followed by a cursory overview of the approach taken by s.41 in order to highlight some of the primary problems with the legislation. Subsequently, the House of Lords decision in A(2) will be scrutinized, followed by consideration of some suggestions for reforming the law. Traditionally, the investigation and prosecution of rape and other sexual offences has been rife with difficulties, especially in the area of evidential requirements. Aggressive questioning of female complainants about personal sexual matters was commonplace, and sexual history evidence was considered relevant to consent and credibility. Over time, myths and stereotypes developed which exerted prejudicial effects on the fairness of trials. In R v Riley, evidence of previous voluntary sexual relations with the accused was admissible in order to assert that it was more likely that the complainant consented to the incident in question. [2] In 1975, the Heilbron Committee considered legislative reforms, examining the impact of sexual history evidence. Their report recommended that it should only be admissible in very limited circumstances, that there should be some limited judicial discretion along with an inclusionary rule based on ‘striking similarity’. Unfortunately, when drafting s.2 of the Sexual Offences Act 1976, these proposals were largely ignored. The complainant’s sexual behaviour with someone other than the defendant should only be referred to when it would be unfair to exclude it, based on the judge’s discretion. [3] However, the practical application by the courts was too permissive with too much judicial discretion, resulting in sexual history evidence being admitted too freely. [4] Amidst growing disquiet, in 1998 the Home Office scrutinized the practical application and the failures of the 1976 Act. The White Paper ‘Speaking Up for Justice’ exposed numerous inherent weaknesses which necessitated reform. [5] This report was criticized by Diane Birch and Neil Kibble for contributing to the shortcomings of Parliament’s response in 1999. The YJCEA debates on the draft bill reflected a lack of consensus on the ideal approach to rape shield legislation, including prevalent concerns about over-restrictiveness and the dangers of excluding relevant evidence. [6] The wider jurisprudence was surveyed, including approaches in Australia, Canada, and Michigan. The landmark Canadian case R v Seaboyer [7] , where McLachlin J. coined the term ‘twin myths’, challenged the provisions of s.276 of the Criminal Code composed of a rule of exclusion with three exceptions. 

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