The Impact Of Using Sexual History Evidence In Scottish Courts

In Scotland, a rape complainant’s sexual history can still be used against them in a rape trial. Time and time again, courts have warned defence lawyers and judges against using this kind of cross-examination, however it continues.

Rape Crisis Scotland has said that this is a significant factor deterring women from reporting rape and other sex crimes.

Responding to the improper way complainants are treated in court, the Equality and Human Rights Commission in Scotland has granted the University of Edinburgh a review into this. It will investigate the prevalence and impact of sexual history evidence being used in rape trials.

This review accompanies a number of lawyers and justice researchers launching an appeal to the Scottish Government to provide rape victims with additional legal support when providing evidence.

It is hoped that both will contribute to the protection of complainants in cases where defendants apply to reveal their sexual history in court cases. And, ultimately, encourage more women to come forward with their stories.

Current legislation jeopardises justice and endangers lives

At present, under the Criminal Procedure (Scotland) Act 1995, when an individual is accused of rape, they can apply to expose their accuser’s sexual history. This is then used to undermine the credibility and reliability of the survivor’s testimony.

The Sexual Offences (Procedure and Evidence) (Scotland) Act, 2002, saw stricter rules applied to the original 1985 ‘Rape Shield’ legislation. These changes were intended to discourage this kind of evidence being used by both the defence and the Crown.

However, the legislation contained one exception, whereby sexual history could be used if it was deemed relevant for establishing guilt and it was believed to have ‘probative value,’ without creating prejudice that would undermine the case.

Further changes to the legislation in 2003, stated that ultimately, a judge would decide if such evidence could be used in a trial through reviewing applications made by the defence.

However, in 2007, research published by the Scottish Government, showed that despite the introduction of the new legislation, applications to introduce this kind of evidence had significantly grown.

In 72% of rape cases, there had been an application for this kind of evidence. Only 7% of them were rejected by the Crown.

Unfortunately, the situation has not improved. In 2016, the Scottish Government conducted a data collecting exercise relating to these defence applications. It was found that in the first three months of 2016, there were 56 applications to use sexual history evidence in court. Of these 56, 51 were unopposed, and 43 granted in full.

Using this kind of evidence in rape trials has serious consequences. One example being the case of 17-year-old Lindsay Armstrong. Armstrong had given evidence against the man who was eventually convicted of her rape.

Her parents said she was “humiliated” and “torn to shreds” on the stand, and submitted to horrific cross-examination. This included being forced to present the underwear she was wearing at the time of the assault. Two weeks after giving evidence she committed suicide.

Signalling a lack of change, as recent as 2019, Lord Justice Clerk, Lady Dorrian, criticised the “wholly inappropriate” and “insulting” cross-examination of witnesses by defence lawyers, and by judges.

Proposed changes to prevent victim humiliation

Some measures have already been implemented to prevent witnesses from suffering the same kind of humiliation Lindsay Armstrong experienced. This includes the introduction of evidence by video link and screen barriers. However, many say this is not enough.

Back in 2019, the Scottish Centre for Crime and Justice Research (SCCJR), published a report that made a number of recommendations to improve the court experience of survivors. This included the recommendation that survivors should be provided with independent legal representation to protect them against a trial system “weighted in favour of the accused”.

The report also called for a review of “the (adversarial) nature and manner of defence questioning”. Now, a public contract for review awarded to the University of Edinburgh by the Equality and Human Rights Commission in Scotland, hopes to discover where courts are going wrong, and uncover what more needs to be done.

Accompanying this, Scottish lawyers Eamon Keane and Tony Convery, have also recommended the introduction of independent legal representation for complainants in cases where applications under S.275 of the Criminal Procedure (Scotland) Act 1995 have been made.

While these are definitely steps in the right directions, it is evident that rape survivors are being routinely failed by the justice system. In Scotland, since 2009-10 sexual crimes have ballooned by 108%. Reported rape and attempted rape has increased by a shocking 115% since 2010-11. And yet, figures released by the Scottish Government show that only 43% of rape and attempted rape trials end in a conviction.

Fundamentally, women and men who are subjected to one of the most brutal violations that a human can experience are then, in court violated once again with humiliating and intrusive rape prosecution practices. A complainant’s sexual history, the clothes they choose to wear, or how much alcohol they had consumed when they were assaulted are completely irrelevant to a rape trial. Equally, as MP Liz Saville Roberts said: “Whether or not someone has consented to sex in the past is not relevant to whether or not they gave consent to an alleged attacker”.

Professor Clare McGlynn, in her paper on rape trials and sexual history said that such prosecution practices are “deeply embedded” and must be challenged through legislative reform.

However she added that ultimately, “wider societal change” is required to eradicate them entirely. It is after all the defendant’s choices and actions that should be analysed and cross-examined in the courts, not the past of an individual who has already suffered so much.