Abstract
The appellant (A) was convicted of two counts of rape. A and the complainant (C) had married in 1999 but were divorced in 2010. Following the divorce, A maintained contact with C via text message. During 2016 and 2017, A sent C several unsolicited text messages of a sexually explicit nature. C asked A to stop but the messages continued, leading C to make a formal complaint to the police about abuse C had allegedly endured during her marriage to A. The prosecution's case was that A had had sexual intercourse with C on three separate occasions without C's consent. The first rape allegedly took place after A had become drunk and aggressive. A went to bed and after waiting some time, C followed. It was at this point that A, allegedly, climbed on top of C and had sexual intercourse with C without her consent. C confronted A the next morning about the incident but C was told that she would not be believed and that she should be careful about what she was implying. The second incident took place in similar circumstances after A had been drinking throughout the evening and thereafter having become abusive and aggressive.
The defence argued that the rape allegations were false. It was accepted that A did drink alcohol but when he did, this simply made him sleepy. A denied the abuse allegations but admitted to sending C text messages only to maintain a post-marriage friendship. He said that he was ashamed about sending sexually explicit messages and that this did not reflect his good character as a magistrate, head teacher and his heavy involvement with church matters.
At trial, the defence applied under the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act), s.41(3)(a) to question C about matters relating to her sexual orientation. According to the defence, the basis upon which the questions were relevant were: (1) to suggest that C may have been conflicted about her sexuality when married to A; (2) whether she had been rejected by her parents and whether she feared rejection from her work colleagues about her possible sexual interest in women; (3) whether she had made false allegations of rape against A as means to justify any change in sexual orientation and (4) (but which was not raised under the original s.41 application), whether C's confused sexual identity may have caused her to reassess consensual sexual intercourse as non-consensual.
The trial judge refused the application, concluding that “there was no direct evidence at all of any change of sexuality on the part of [c]” (at [34]) and in contravention of s.41(4) of the 1999 Act, that “its purpose or main purpose is to pursue a line of questioning which would impugn the credibility or potentially impugn the credibility of the witness and that is why it is being sought (at [35]). The issue to be decided by the Court of Appeal was whether counsel for A had been wrongly refused permission to put the questions to C in cross-examination.
Commentary
Evidence of Sexual Orientation as Evidence of “Sexual Behaviour”
Section 42(1)(c) of the Youth Justice and Criminal Evidence Act 1999 defines sexual behaviour as “any sexual behaviour or other sexual experience, whether or not involving any accused or other person…”. Given that only “sexual behaviour” evidence is subject to the provisions of the 1999 Act, it is unsurprising that counsel for A would attempt, albeit unsuccessfully, to claim that the definition in s.42(1)(c) “was confined to actions and conduct and…did not extend to “internal conflicts about sexuality” (at [42]). As previous Court of Appeal decisions would tend to confirm, defendants face an onerous hurdle when trying to escape the strictures of the 1999 Act by arguing that s.41 has no application. In R v DWG the prosecution remarked that the definition of sexual behaviour ‘has been widely construed’ ([2012] EWCA Crim 1860 at 20) and in R v RP ([2014] 1 Cr App R 28 401) the definition was considered wide enough to encompass evidence of an abortion. In R v Beedall ([2007] EWCA Crim 23), a case of same sex rape – and to which the Court of Appeal referred – the court adopted a strict approach to the admissibility of sexual orientation evidence by refusing permission for the defence to ask the complainant if he was homosexual. Given the possible argument that the complainant may have engaged in homosexual activity previously, the Court observed that the medical evidence ‘provided only an uncertain basis for any assertion that the complainant was a practising homosexual…and was simply one explanation of the findings’ (at [14]). As Kibble has observed (Neil Kibble, ‘Sexual Offences: whether judge correct to refuse to allow cross-examination of complainant as to history of homosexual intercourse’ [2007] Nov Crim LR 910 at 914): [a]lthough evidence of sexual orientation can be distinguished from evidence of sexual behaviour, the close relationship between the two as well as the fact that the latter would often be relied upon to indicate the former suggest that sexual orientation should be regarded as subject to the s.41 restrictions
The s.41(6) Specific Instance Requirement
Having noted that the proposed cross-examination was about “sexual behaviour” the Court of Appeal concluded that the questioning would, nevertheless, have failed to satisfy an additional hurdle contained in s.41(6). This restriction imposes a requirement that the evidence or questioning ‘must relate to a specific instance (or specific instances) of sexual behaviour on the part of the complainant’ and is designed to prevent speculative cross-examination which, as noted by the Court of Appeal in the present case, is precisely what A had intended. Section 41(6) therefore provides a practical means for courts to prevent both fishing expeditions into the complainant's previous sexual conduct, and generalised attacks on the complainant's moral credibility. Indeed, as the Court of Appeal clarified, ‘the wider purpose behind the legislation…was to prevent unfair harassment, humiliation and demeaning of witnesses (usually women) giving evidence in trials involving sexual offences’ (at [39]). The s.41(6) requirement has been of particular significance in cases where an attempt is made by the defence to adduce evidence that the complainant is (or was) a prostitute. Although at common law the courts had demonstrated a liberal approach to the admission of evidence showing that the complainant had engaged in prostitution (see Bashir [1969] 3 All ER 692), the position under the 1999 Act, leaving aside any argument that the evidence must satisfy s.41(3) or (5) and fulfil the requirements of s.41(2)(b) (see below), is that the additional requirement of s.41(6) provides considerable protection to such complainants compared to that previously afforded under the common law or the discretionary approach taken under the 1999 Act's predecessor – the Sexual Offences (Amendment) Act 1976, s.2(2). R v White (Andre Barrington) ([2004] EWCA Crim 946) demonstrates, that the courts are vigorous in upholding the aims of the subsection. The appellant contended that sexual intercourse took place at the instigation of the complainant, having earlier asked the appellant for money which he refused. Later, he allegedly awoke to find the complainant going through his wallet. The complainant gave evidence in the form of witness statement that she had worked as a prostitute on the streets of Coventry for 19 years and the appellant applied under s.41 to cross-examine her about this previous work and more recently with one or two long-standing clients. The Court was shown a list of previous convictions for street walking but concluded that these did not satisfy the requirements of s.41(6). The Court elaborated that if such material was capable of satisfying s.41(6), this would be ‘tantamount to the proposition that any sexual encounter of a complainant will satisfy s.41(6) if it happens to be possible to assign a date and place to that conduct’ (R v White (Andre Barrington) ([2004] EWCA Crim 946) at [16])). Given the strict approach adopted by the courts to s.41(6) it is unsurprising that the intended cross-examination of C was prohibited. The speculative nature of the proposed questioning led the Court of Appeal to conclude, logically, that the requirements of s.41(2)(b) – that the refusal of the application might have had the result of rendering unsafe a conclusion of the jury – had not been satisfied. This provides further clarification that once the evidence or questioning is about any “sexual behaviour or other sexual experience” (s.42(1)(c)) not only must it satisfy the requirements of s.41(3) and/or (5), but also the significant restrictions contained in ss.41(4), 41(6) and 41(2)(b) before it can be heard. In this respect, the judgment provides further support for suggesting that the cumulative effect of the s.41 provisions continues to pose a difficult hurdle for defendants to surmount.