30 January 2007
I pretty much fired off yesterday’s complaint to the BBC (click here to read) in a fit of righteous indignation, finding it cathartic but not really expecting any response.
However… This morning I got a call from a chap at Over To You (the listener feedback show broadcast on the World Service at weekends) saying that not only were they taking my complaint seriously, they actually wanted to feature me on this week’s programme!
Cue panic, excitment, surprise, cynicism, excitement, and panic.
We had a chat and he said he needed to go away, work out who at the BBC should respond to my comments, and generally think about how to do the piece. He called me back later in the day and said that they probably won’t do it this week because they really want to lead with this piece and therefore they want to do it in a later programme. The problem is that they’ve already got this week’s show pretty much planned, apparently, and also they are needing to work out how to do the piece. It is really a high level editorial issue, but it apparently isn’t appropriate to challenge high level editorial people to respond to specific examples, they are more for general issues – so it is not easy to work out exactly how to put the piece together.
Fob-off? Not sure, don’t think so. He did seem keen on doing the piece as he felt it was a really strong one, and fairly topical given the current interest in “size zero” stories.
So now I feel this MASSIVE weight of responsibility to get this right, because I feel as though I am speaking up for The Movement. If I can come across well and put my points persuasively, billions of people could have a moment of feminist epiphany; if not, billions of people will snort and myths of how feminists are wrong and dumb and shrill and uptight and prudish will be perpetuated forever. OK, maybe not billions. Maybe this isn’t a moment that will Change The World. But that’s how this weight of responsibility feels, you know?
Anyway, dear readers, here is where I need your help.
Firstly, any thoughts, tips, ideas on how not to get set up and make a total idiot of myself would be welcome. The show is prerecorded so there’s no danger of live on-air freeze-ups, but I’m quite keen not to say anything completely daft or get taken for a ride.
I think I will be expected to stick to the “topical” size zero issue if I am going to get any airtime, and I will have to be sensitive to the fact that they will edit me out or down if they don’t really like what I say… within those constraints though, I think I am allowed to say more or less what I want.
I have in mind to try and take the general point that BBC presenters rarely challenge and often perpetuate the sexist / sizeist attitudes that enable them, and others, to judge women’s bodies; and that this contrasts with the generally much better approach taken when other prejudiced or discriminatory attitudes are at issue e.g. racism or disability discrimination. I would use the examples I mentioned in my e-mail (see yesterday’s post) as evidence of this. And I would then want to use that general point as a platform to ask the BBC about their editorial policy on this kind of sexism.
So: Do they have an editorial policy on handling stories about women’s body image, to ensure that they avoid trivialising women’s experiences? How does the BBC expect presenters to respond to instances of body fascism / sizeism on phone-ins? What steps does the BBC take to ensure that its producers and presenters have appropriate awareness of these kinds of gender issues? That kind of thing.
Any thoughts on that? Any more ideas?
What kind of questions would YOU ask if you had the chance to actually speak to and possibly influence (albeit admittedly in a probably very minute way) a senior BBC editor on the subject of sexism, the beauty myth, and sizeism generally?
Secondly, the producer person I spoke to suggested that if I do hear any more examples of the things I was complaining about, I should drop him an e-mail as this might help give him the angle he needs to make the piece work. So, if you happen to be a World Service listener and you hear anything in the next few days that makes you want to spit, let me know! If you can tell me when you heard it, on what programme, I should be able to listen-again on the website and come up with an opinion of my own.
Finally, and most importantly – please, people, promise that you won’t hate me and denounce me as a traitor to The Cause if I screw this up. Or if it all turns out in a boring anti-climax because nothing more ever comes of it. Pretty please?
29 January 2007
Well, it worked so well last time… So instead of just having a moan over at Erika’s place, I wrote a letter to the BBC:
Dear Over To You team
I have been increasingly upset by some of the comments that presenters have made over a number of recent stories in the news on the subject of steps being taken to address the serious problems that women face as a result of the fashion industry’s dangerous “size zero” culture.
The particular stories I am thinking of include: restrictions introduced in Brazil regarding the age and health of fashion models; regulations introduced in Italy regarding the size of shop mannequins; and an interview with an Australian “plus size” model whose name I unfortunately cannot remember.
In various programmes your presenters made remarks trivialising and demonstrating total ignorance about the deep problems women face – both the models themselves and we “normals” who are expected to try and emulate them.
For example, in relation to the Italian story, more than one presenter made comments that showed how silly he thought the whole idea. On World Have Your Say, Ros Atkins said “I’ve never heard of sizeism” – to a caller who pointed out that the real issue was a much wider culture of making judgements about people, especially women, based on their size. Frankly, this just shows how much Mr Atkins knows and cares about it – not very much. Had it really never occurred to him that people, especially women, suffer discrimination based on their size? If not, why not?
In an unrelated programme, there was a short interview with an Australian “plus size” model. I believe she said she was a size 12 to 14: hardly enormous! I was thoroughly pleased by this piece, until the end when (after the interviewee had been cut off and could not answer back) the presenter made a throwaway comment along the lines of: “that was [the woman’s name], who is what we politely call a plus size model”. The jokey contempt in his voice was audible. To me, it was just so clear that – whatever the woman said, which was incidentally intelligent and robust – the presenter’s real view was that she was just some fat woman and that we were only being polite when we pretended to listen to her point of view or to think that she could really be desirable as a catwalk model. “Sizeism” in action.
It was an outrageous remark for him to make, in the context of what was otherwise a nice positive piece about non-skinny women.
For the Brazilian story, the emphasis was very much on the health of the models (which as far as it goes was laudable), but it was striking that no voice at all protested the idea that fashion models and fashion icons should be thin. It was accepted that the industry would always want women to be thin, that thinness is inherently desirable, and that the appetite for thin women was inevitable. The question whether any of this was true or acceptable was not even asked, never mind given proper consideration.
The BBC should be leading the way when it comes to rooting out sexist, sizeist attitudes like these. Indeed, the sensitivity with which other debates have been held shows how well you can normally handle issues of discrimination. It is unimaginable that your presenters would have acted this way if the story had been about measures taken to combat, say, racism, homophobia or ableism. Yet when the problem relates to (women’s) body size/image, your presenters seem unable to take the issue seriously, handle it sensitively, do proper research or even refrain from jokey trivialising remarks.
So – does the BBC take sexism seriously? Does the BBC care if its presenters display sexist attitudes? And, if so, what are you going to do about it?
These recent examples, by the way, are only examples. They exemplify what seems to me to be a wider problem. It seems to me that the kinds of sexism that Westerm “privileged” women live with are not taken seriously by the BBC. Gender issues that are perceived as non-threatening, such as the “no-brainer” of whether women should be allowed the vote or whether we should be free from FGM, are usually taken seriously and treated appropriately. But gender issues which are a bit closer to home, which if taken seriously would threaten and challenge Western sexism, are trivialised and marginalised.
I look forward to hearing from you
I am not apparently guaranteed an individual reply, but nevertheless “my comments are important and will be read”. We’ll see.
28 January 2007
[Update – as from 16 April 2007, this list will no longer be kept up to date because the “Judges on Rape” post collection can now be accessed as a sub-page via “Lists and Themes”]
Introductory post – in response to the article “Judges try to block rape reforms” (January 2007)
Convicting Rapists and Protecting Victims – Justice for Victims of Rape – consideration of the 2006 reform proposals, and the judicial response to them, referred to in the introductory post.
Sexual History: a judge’s eye view
Part 1, Part 2, Part 3, Part 4, References
A review in four parts of the way that judges have dealt with the problem of defendants impugning rape complainants by bringing their past sexual behaviour into the case – includes judicial interpretation of legislation trying to control this behaviour by defendants. Covers the period from 1975 up to the end of 2006.
Policemen who rape
Analysis of an English legal decision as to whether the police authorities are responsible for police officers who use their office and uniform to commit rape.
(See also: similar case in the United States in which the police force paid a police sexual assault victim, out of court, $400,000.)
Sentencing for sexual offences
Item #1 – Causing or inciting prostitution – 12 months, suspended
Part 1 – Katie Davis’ story, and idiotic statistics.
A little bit of light relief:
Safeguarding Liberty and Justice Since 1245
And finally… if you liked that, you’ll like this:
The Story of a Refugee – analysis of a House of Lords decision about an asylum claim by a young woman escaping from the threat of FGM in Sierra Leone.
28 January 2007
In Part 1 I looked at the background to and history of the current legislation on when defendants in rape trials and use evidence or cross-examination about the sexual history of the complainant’ in Part 2 I reviewed the climate into which that legislation was passed.
Part 3 will start to look at how the judiciary responded to that legislation, beginning with the case of R v A, in which a rape defendant argued that the exclusion of sexual history evidence was contrary to his human rights in that it did not allow him a fair trial.
The facts of the case were that W and F (A’s friend) were having a sexual relationship. One day F collapsed while W and A were both at his home, and he was taken to hospital by ambulance. W and A then set off to walk to the hospital, and on the way there A had sex with W.
W says it was rape. A says either she consented or at least he believed she did. A alleged that this was in the context of a prior sexual relationship that he had been having with W (despite the fact that W was F’s girlfriend) and wanted to use that alleged sexual relationship in his defence.
The judge ruled that under the terms of s41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) he could not use this evidence. The judge also ruled that although he was compelled to make this ruling under YJCEA, he felt that it was in breach of the defendant’s human rights and therefore readily gave the defendant permission to appeal. (The judge was not himself allowed to rule on the human rights issue, for various reasons.)
The defendant appealed.
The Court of Appeal ruled that A was not allowed to use the evidence to suggest that W actually consented to have sex with him on the way to the hospital. However, it was relevant and admissible in relation to the question of whether he believed that she consented. The judge must (for what this is worth) explain to the jury that any previous sexual activity between the parties did not make it any more likely that W consented, and was only relevant to whether A might have believed that she did. As long as he explains this, the evidence is admissible.
Yeah, that sounds sensible – Not.
The whole point of the legislation was to exlude highly prejudicial evidence of sexual history altogether, not to allow it subject to the proviso that the court has to make a confusing explaantion to the jury about how they can or cannot use the information. Juries, as we have seen, are all too prone to leap to conclusions in rape cases and to be swayed by rape myths. Allowing the evidence AT ALL is going to screw any realistic chance of a conviction, regardless of what words the judge may say about how relevant or otherwise the evidence may be to consent.
So, this time, the prosecution appealed.
For assorted procedural reasons, the question that the House of Lords had to decide was not specifically whether it was appropriate to allow the evidence in this particular case; but a broader question of whether the restrictions on sexual history evidence relating to sex between the complaintant and the accused were in themselves incompatible with the human rights of rape defendants generally.
Lord Steyn (with whom Lord Slynn agreed) thought so, and wanted to basically rewrite the legislation in accordance with the old law:
“As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent… After all, to be relevant the evidence need merely have some tendency in logic and common sense to advance the proposition in issue… Good sense suggests that it may be relevant to an issue of consent whether the complainant and the accused were ongoing lovers or strangers…“Clearly the House must give weight to the decision of Parliament that the mischief encapsulated in the twin myths* must be corrected. On the other hand, when the question arises whether in the criminal statute in question Parliament adopted a legislative scheme which makes an excessive inroad into the right to a fair trial the court is qualified to make its own judgment and must do so…
[*That a promiscuous woman is more likely to have consented to sex, and that she is less worthy of belief in any event.]
“[O]ne could argue that section 41(3)(c) involves the test of high probative force of the evidence, which makes it just to admit it… [but this] threshold requirement would be too high: often the evidence will be relevant but not capable of being described as having “high probative value“…
Whilst the statute pursued desirable goals, the methods adopted amounted to legislative overkill… In my view [the Human Rights Act 1998] requires the court to subordinate the niceties of the language of section 41(3)(c)… to broader considerations of relevance judged by logical and common sense criteria of time and circumstances… The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under section 41(3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, eg an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges…“It is of supreme importance that the effect of the speeches today should be clear to trial judges… The effect of the decision today is that… the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the convention. If this test is satisfied the evidence should not be excluded.”
With every last drop of respect that is due to the gravitas of his great learned whatsisname, this is just plain nonsense. What he is saying is that because the law would exclude evidence that is “logically relevant” – even though it cannot in any way be described as “of high probative value” – the law is contrary to the defendant’s human rights in the sense that he cannot have a fair trial if the evidence is disallowed. This is rubbish.
The rules of evidence – what may be admitted and what may not – are complex and they regulate what evidence can be heard. The rules of evidence do not say “if it’s relevant, it’s in“. If they did, we wouldn’t need to have socking great textbooks on the subject of what can and cannot be used in evidence. There are any number of restrictions: hearsay evidence can only be used in very limited circumstances; expert evidence is regulated; evidence that is highly prejudicial is limited unless it meets certain tests designed to ensure that it is only admitted if it has proper probative value. The defendant cannot safely attack the credibility or good character of any witness (other than a rape victim, that is) without losing the “shield” which protects him from having his own previous convictions or other bad character evidence put to the jury. But he can drag a rape victim through all manner of torment designed to make her look like a slut who was asking for it – without any danger that his own previous behaviour might be subjected to any similar scrutiny.
Just because it’s relevant, doesn’t mean it’s in. The law can and does regulate what can fairly be put in evidence and the mere fact that a law limits the situations in which a particular type of highly prejudicial evidence can be used by a rape defendant does not violate anyone’s human rights. To suggest otherwise is – dare I say it? – blind, stupid, wilfully ignorant, bigoted and stinks stinks stinks of male privilege. Oh yes.
The aptly named (in this instance) Lord Hope disagreed with the analysis of this brethren. He did not suggest that the restrictions would be compatible with the human rights of every defendant, and left open the possibiltiy of future challenges. But he was clear that the restrictions were not inherently contrary to the right of rape defendants to a fair trial. In particular, he clearly recognised that the whole point of the legislation was the unsatisfactory approach taken by judges in the past, and that it was therefore wholly inappropriate for the judges to effectively strike them down and substitute the specific legislative restrictions with a generalised judicial discretion:
It is plain that the question is in the end one of balance. Has the balance between the protection of the complainant and the accused’s right to a fair trial been struck in the right place? [Did Parliament act] within its discretionary area of judgment when it was choosing the point of balance… The area is one where Parliament was better equipped than the judges are to decide where the balance lay… in this highly sensitive and carefully researched field an assessment of the prejudice to the wider interests of the community if the restrictions were not to take that form was more appropriate for Parliament. An important factor for Parliament to consider was the extent to which restrictions were needed in order to restore and maintain public confidence.”[T]wo important factors seem to me to indicate that prima facie the solution that was chosen was a proportionate one. The first is the need to restore and maintain public confidence in the system for the protection of vulnerable witnesses. Systems which relied on the exercise of a discretion by the trial judge have been called into question. Doubts have been raised as to whether they have achieved their object. I think that it was within the discretionary area of judgment for Parliament to decide not to follow these systems. The second is [that] the section as a whole… contains important provisions which preserve the defendant’s right to ask questions about and adduce evidence of other sexual behaviour by the complainant where this is clearly relevant… I do not regard the mere fact that the complainant had consensual sexual intercourse with the accused on previous occasions as relevant to the issue whether she consented to intercourse on the occasion of the alleged rape.
“For these reasons I consider that it has not been shown that… the provisions of section 41 …are incompatible with his Convention right to a fair trial… All [the respondent] appears to be relying upon at present is the mere fact that on various occasions during the previous three weeks she had had consensual sexual intercourse with him in his flat. As I have said, I consider that this fact alone – and nothing else is alleged about it – is irrelevant to his defence of consent. So I would hold that the exclusion of evidence and questions which relate to it in regard to that defence (but not that of honest belief ) is not incompatible with his right to a fair trial.”
So far: two votes to one in favour of rape myths. What next?
Lod Clyde: bad guy.
Lord Hutton: bad guy.
Rape myths prevail, four to one.
The effect of this is that, essentially, the court has discretion again. The judges will be so good as to take into account the falsity of the “twin myths”, perhaps, in passing, as long as it isn’t unfair to a rapist to mention such things. But on the whole, the decision is that Parliament excluded too much, prevented too much – that sexual history should be included if some old white guy with a hatful of prejudices thinks it is relevant.
What is really striking about this decision is that ALL the judges, even Lord Hope, made a very clear distinction between sexual history generally and previous sex with the accused person specifically. They agreed freely that previous sex with people other than the accused would be relevant only rarely, but they could not say the same about sex with the accused.
Of course, they agreed that a woman has a right to make up her mind afresh each and every time. Of course, she has autonomy and independence and personal dignity. Of course, agreeing to sex one time is not the same as agreeing to sex for evermore. But.
“In my opinion there will be some cases where evidence of previous consensual sexual intercourse between the complainant and the defendant would be clearly relevant, but there will also be cases where such evidence would not be relevant. Where there has been a recent close and affectionate relationship between the complainant and the defendant it is probable that the evidence will be relevant, not to advance the bare assertion that because she consented in the past she consented on the occasion in question, but for the reason given by Professor Galvin, which is that evidence of such a relationship will show the complainant’s specific mindset towards the defendant, namely her affection for him.” (per Lord Hutton)
You see? The fact of previous consent isn’t relevant because it shows she is a slut who would agree to anything (even to having sex on a towpath whilst on her way to the hospital where her recently-collapsed boyfriend has just been taken…) It is relevant because it shows that she loves him. It shows that she has an “affectionate” mindset towards him, and it is that mindset – not the fact of previos sex – which makes consent more likely.
I call bullshit.
In the specifics of this case, A alleged that W had been cheating on F and having sex with A on the side for a period of about three weeks: he says that she “was never against” this sexual relationship. She wasn’t against it?
This does not even on A’s account suggest a “close and affectionate relationship”. It suggests, at most, a few grubby rolls in the hay, meaningless and stupid. To me, frankly, it sounds very much as though any previous sex that did take place was probably itself either rape or very close to it – sex with a barely conscious woman who’d had too much to drink, perhaps, and wasn’t really up to expressing whether she was “against” the idea or not.
Why is it likely W would want to repeat that, on this particular occasion of all times? It is absurd. Yet the judges suggested that previous sex with the accused, in this case, might possibly be relevant and ruled that the judge should reconsider the matter afresh in the light of the judgement of the House.
In any case, two or three shags with your boyfriend’s mate does not equal “affection”. It’s bloody obvious that this particular complainant has NO affection for this particular accused, for reasons which will apply in 99.99% of all rape cases everywhere. Which is to say: if she did have an “affectionate mindset” towards the accused, why would she then cry rape? The very fact that she has accused him of rape – even if her story is a pack of lies! – makes it abundantly clear that if she ever had an affectionate attitude towards this man she does not have it now.
But, hey, women lie all the time right? We can’t be expected to delve into their psyche to even try and come up with some actual convincing reason why this particular woman might have lied on this particular occasion. Probably hormones. Probably just changed her mind afterwards, for some reason. Who needs to try and understand them? Women are unfathomable, right?
Women are not unfathomable. They do not, on the whole, go around accusing men of rape at all. They certainly do not, on the whole, go around accusing men of rape when they in fact had consensual intercourse as part of an ongoing, close, affectionate relationship. Just doesn’t happen. Read my lips: Doesn’t happen.
All this does make you wonder: what is the point of passing laws to protect rape victims, if the judges are going to ignore them? They ignored the intended restrictive effect of section 2 of the Sexual Offences (Amendment) Act 1976. And in this case they have looked section 41 of YJCEA full in the case and blown a big fat raspberry at it.
What will it take to make them see?
I was never in favour of the Human Rights Act, and this case is the perfect example of how stupid it is to make our overwhelmingly white, male, middle-to-upper class, wealthy judiciary the ultimate arbiter of what is or is not on. Gah!
More in Part 4.
26 January 2007
I’ve been ploughing through legal documents this evening (in aid of my current “Judges on Rape” theme) but I need a break now! So I’m going to blog a short story of itsy bitsy activism and then go to bed with a book.
For the last couple of weeks there has been a poster up in our office canteen advertising the baked goods of a certain cake retailer whose name shall not be mentioned on this blog. The poster features a black-and-white photograph of a 1950’s-style, perfectly-made-up housewife, bending over at her oven. The caption reads: “Our muffins are moist and sticky, just like Fanny’s”. I’ll say that again. “Our muffins are moist and sticky, just like Fanny’s”.
That might be just the sort of crapulent pun you might expect to see in a lads mag, but it is not something I wanted to be subjected to when I go to get my wake-up tea at 9am in the morning.
Everytime I saw it, I just wanted to SPIT. I don’t even know where to begin in detailing the miosgynist ideas perpetuated and referred to by that image next to those words. Especially not at 9am in the morning when I’m trying to get my head out of the nappy-centric fog of motherhood and ready for a day of being the damnably sharp tool of the patriarchy that I get paid to be.
So yesterday morning, I was unavoidably overhearing the wisecracks of some button-pushing lads in search of coffee, who felt the need to share their views very loudly on the subject of how wickedly funny and clever this poster was… interspersed with ejaculations to the effect that they couldn’t believe that anyone had got away with putting up in the staff canteen… See, they knew it wasn’t really on; that it wasn’t really appropriate; that it was bloody offensive to all women in the building: but what the hell – it’s funny, right?
And I just snapped.
Enough! Nine to five may well be my tool-of-the-patriarchy time but some things are beyond the tolerance of tea-deprived warrior… Some things just Will Not Stand. To cut a long story short, I picked the “right” person to speak to and put in a complaint. The poster was gone by lunchtime.
One small step. But, oh, it was nice.
I felt like a rebel, in patriarchy’s own toolshed.
25 January 2007
Posted by Maia under Cunts!
There is something I’ve been wanting to say for a while now.
It came to me, after I discovered Barb Kobe’s healing dolls and decided to make one of my own (see these one, two posts), that I have made one already.
In celebration of Vulva Liberation Week I made this vulva purse. That creative process, as well as all the other stuff I did for VLW (see here – as if you could have missed it!) was healing for me. It helped me a lot. The purse was a vulva-specific healing doll.
And, while I was thinking about this, I realised something else.
In one post during the week, I described how much and why I disliked a certain word. And that was cathartic. It cleansed me. It cleansed away some of the hurt. That was a healing process too. And now, although I wrote only a few short months ago that I had no interest in reclaiming the word, I’ve changed my mind.
I want it back now.
Because me and my cunt, we’re OK.
25 January 2007
In Part 1, I reviewed some of the background to the present law on when a defendant in a rape trial can use evidence relating to the victim’s sexual history. We found that the law provided inadequate protection and that the judges were making it worse.
In Part 2 I am going to look at how the government responded to this.
To begin with, the issue was (among other things) investigated by a Parliamentary working group which came up with its report “Speaking up for Justice” in June 1998. (PDF here). The report found that: “there is overwhelming evidence that the present practice in the courts is unsatisfactory and that the existing law is not achieving its purpose.” (para 9.64, my emphasis).
Important to note – the working group reported that the law was intended to introduce strict restrictions on when sexual history evidence could be used and criticised not the law itself but the application of the law by judges, saying that the courts were not applying the law correctly.
Also important to note – the working group considered whether to try and improve the courts’ (i.e. the judges’) practice by issuing guidance or providing some form of training, instead of having to change the law. However, they concluded that: “given the experience of the last 20 years in operating section 2, the Working Group was not convinced that this option would provide an effective solution.” (para 9.65) That’s about as damning as a report like this can get, when it comes to making criticisms of the judicary. Damning indeed: that not even official guidance was likely to prompt judges to act responsibly in rape trials; that legislation to change and clarify the law was necessary.
The working group therefore reccommended (Recommendation 63) that: “In cases of rape and other serious sexual offences the law should be amended to set out clearly when evidence on a complainant’s previous sexual history may be admitted in evidence.” (para 9.72)
Enter the Youth Justice and Criminal Evidence Act 1999 (HTML here)
This new piece of legislation seriously restricted the circumstances in which judges would be allowed to permit rape defendants to make allegations about a complainant’s sexual history.
In particular, in cases where consent is at issue, defendants are not now allowed to make allegations about sexual history unless the behaviour in question either took place at about the same time as the “alleged” rape*, or it is so similar to what the defendant says the complainant is doing now that it cannot reasonably be explained as a coincidence**.
[* Example: the rapist says that the victim had already consented to rough sex once that day, and that because of this behaviour he genuinely believed that she consented to having sex with him again.
** Example: the rapist says that the woman had given consent but later demanded money and “cried rape” when this was refused, and there is evidence that she had treated other men in the same way on previous occasions.]
The court must also be satisfied that to refuse leave would result in the jury, or the court, reaching an “unsafe conclusion” on a relevant issue at trial, and that the defendant’s true aim is not just to undermine the complainant’s credibility. Finally, the restriction extends to questions about any kind of previous sexual behavious – including pervious sex with the accused person.
This seems, then, to be a much stronger law in that it seems that it should have made it a lot harder for rapists to cry “Slut!” on those odd occasions when they are brought to trial. The defence would have to show that the victim’s behaviour was directly relevant to an issue other than purely to credibility, and that it came within one of the specific categeories of case where such evidence is to be allowed.
However, this shocking study (Jennifer Temkin, “Prosecuting and Defending Rape: Perspectives From the Bar”, June 2000 – I will write more about this another day) into the attitudes and experiences of barristers who prosecute and defend rape cases predicted that:
“[The new legislation] will prohibit the use of sexual history evidence in all cases save those which are specifically designated… [but] there must be concern that the exceptional categories have been drawn too broadly… it would seem that the legislation would frequently permit sexual history to be introduced. This study indicates that the defence will make use of every opportunity which the law provides to ensure that sexual history evidence is admitted.”
So, any bets on what happened when the barristers and judges got their hands on this?
Find out in part 3…
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