The law and sexual offences against adults in Australia

ACSSA Issues No. 4 – June 2005

You are in an archived section of the AIFS website. Archived publications may be of interest for historical reasons. Because of their age, they may not reflect current research data or AIFS' current research methodologies.

Evidence about past sexual experiences

A focus on the character of the victim-complainant has been a persistent feature of rape trials, and one which has reflected social attitudes suggesting that women's sexual reputation and chastity are indicators of women's truthfulness and reliability as witnesses (Henning and Bronitt 1998).

In the 1970s and 1980s, all Australian jurisdictions reformed the law applying to this aspect of evidence. It was widely recognised that the unjustified use of sexual history evidence could be humiliating and distressing for victim-complainants, jeopardising a fair trial of the real issues and producing unjust acquittals. Attacks on women's credibility based on past sexual activity also seemed to imply that some victim-complainants were unworthy of legal protection or partially responsible for sexual assaults committed against them ( Edwards and Heenan 1994; Henning and Bronitt 1998). Reform sought a better balance between the rights of the accused to a fair trial and the rights of the victim-complainant to access to justice.

The legislation

Evidence about the victim-complainant's sexual reputation3 is not permitted in any Australian jurisdiction except the Northern Territory (NT), where it is permitted only with the permission of the court. However, despite the blanket rule that evidence of sexual reputation is inadmissible, studies show it is still being admitted (Henning 1996; NSW Department for Women 1996; Taylor 2004). It appears that part of the reason is that legislation and case law offer little guidance on distinguishing between "sexual reputation" (which is generally not admissible) and "sexual experience/history" (which is admissible in some circumstances) (Henning and Bronitt 1998; Law Reform Commission of NSW 1998).

Evidence about the victim-complainant's sexual experiences prior to the offence charged is restricted in every Australian jurisdiction. However, the nature and extent of the protection that the law offers differs considerably. Each jurisdiction establishes a process in which any party seeking the admission of sexual history evidence must first apply for and obtain the permission of the court.

In every jurisdiction apart from New South Wales (NSW), legislation establishes one or more criteria that must be satisfied before the court may give its permission for sexual history evidence to be admitted. In contrast, NSW states a general rule that sexual history evidence is not admissible and then lists exceptions to that general rule. The court can only allow the evidence to be heard if it falls within one of these exceptions.

The key reasons for reform to this area of the law included the distress and humiliation that cross-examination about sexual history can cause.

In the Australian Capital Territory (ACT) and NT, prior sexual experience with the accused is exempt from the application of the protections that apply to all other sexual history evidence. In Queensland (QLD) and South Australia (SA), recent sexual activities with the accused are exempt from the requirement for permission from the presiding judge. In NSW, prior sexual experience with the accused may fall within the exception for evidence about an "ongoing or recent" relationship between the accused and complainant, effectively providing a partial exemption from protections provided by the Act (Henning and Bronitt 1998).

Criteria for the admissibility of sexual history evidence

In the ACT, NT, QLD, SA, Tasmania (TAS), Victoria (VIC) and Western Australia (WA), a court must not allow sexual history evidence to be introduced unless it has substantial relevance to facts that are disputed in the case.

Most jurisdictions provide some limited guidance as to the meaning of "substantial relevance". In the ACT, NT, QLD, SA and VIC, evidence about sexual activities is not "substantially relevant" simply because it raises an implication about the victimcomplainant's "general disposition" or "general character". In the NT and QLD, evidence has "substantial relevance" if it took place at virtually the same time as the offence charged or it was part of a sequence of events "that explain the circumstances in which the alleged offence was committed".4

In the ACT, NT, QLD, SA and VIC, 5 evidence about sexual activities is not permitted as part of cross-examination about the victim-complainant's credibility unless there are special circumstances that mean it "would be likely to substantially impair confidence" in the reliability of the complainant's evidence if it were admitted. In TAS and WA,6 sexual history evidence is not admissible solely for the purposes of cross-examination about credibility. QLD law explicitly states that victim-complainants are not to be regarded as less credible witnesses merely because they have engaged in sexual activity.

The key reasons for reform to this area of the law included the distress and humiliation that cross-examination about sexual history can cause. As a result, several jurisdictions have required the risk of distress and humiliation to the victim- complainant to be considered when decisions about sexual history evidence are being made.

In SA, in making a decision about whether to grant permission for questions concerning, or other evidence about, sexual history, the judge is required "to give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence" about sexual history. 7 To grant permission, the judge must also be convinced that allowing questions or evidence about sexual experience to be heard is necessary in the interests of justice (VIC has a similar requirement).

In TAS and WA, a magistrate or judge must not give permission for evidence of sexual experiences to be heard in court unless the capacity of the evidence to assist in proving a disputed fact "outweighs any distress, humiliation or embarrassment" which the victim-complainant might suffer as a result of the evidence being disclosed in court. 8 In TAS, the legislation offers the further guidance that, in forming a decision on this issue, the magistrate or judge must take into account the victimcomplainant's age and the "number and nature of the questions" that may be asked.

In contrast to the legislation in every other state and territory, NSW law states a general rule that evidence about sexual experience cannot be used. It can only be allowed into court where the court has given its permission, and the evidence: closely relates to the time when the alleged sexual offence took place; or is part of a connected set of events as a part of which the sexual offence is alleged to have been committed; or concerns a relationship between the accused and the victimcomplainant that was ongoing or recent at the time the offence was committed; or could explain "the presence of semen, pregnancy, disease or injury" where the accused denies that intercourse took place; or could show that, at the time of the alleged sexual offence, either the victim-complainant or the accused person had a disease that the other person did not have; or could show that the victim-complainant first alleged that the sexual offence had been committed after sexual intercourse had taken place and when the victim-complainant realised or discovered pregnancy or disease.

Where the prosecution's case has referred to the sexual experience of the victimcomplainant and accused might be unfairly prejudiced if they could not ask questions about these matters, the court can allow the victim-complainant to be questioned about them. However, the defence may question the victim-complainant only about the specific things raised by the prosecution's case. The court can only allow those questions to be asked if the value of the evidence outweighs any potential "distress, humiliation or embarrassment" to the victim-complainant resulting from the evidence being allowed into court.

No other Australian jurisdiction has explicitly limited the kinds of evidence that the defence can bring into court if the prosecution raises the complainant's sexual history. However, numerous studies have shown that defence cross-examination designed to rebut prosecution evidence dealing with sexual experience often allows wide-ranging access to evidence about sexual history. The questioning and other evidence that follow can be humiliating for the complainant and difficult for the court to confine (Henning 1996; Heenan and McKelvie 1997; Henning and Bronitt 1998).

Written applications and written reasons

In the ACT and VIC, an application for the admission of sexual history evidence must be made in writing. In VIC, the application must be made at least 14 days before the date of the criminal proceeding. It must set out the questions the applicant wants to ask, state the scope of the questioning that is likely to follow on from these questions, and explain the substantial relevance of the questions to disputed facts or the reliability of the victim-complainant as a witness. The requirement for the application to be made in writing can only be waived by the court in exceptional circumstances.

Every jurisdiction requires that discussion of an application for admission of sexual history evidence must take place in the absence of the jury, if there is a jury. In the ACT, NT and VIC, the victim-complainant can also be excluded from the court while the application is considered if the accused requests this.

If the court agrees to allow evidence about sexual activities to be admitted into court, it must give written reasons for its decision in the ACT, NSW, TAS and VIC. In TAS, the written reasons must explain how the requirements of the legislation have been met. NSW law requires a written record of the nature and scope of the evidence that is allowed and the reasons for the court's decision before the evidence is heard.

How does it work in practice?

Despite evidentiary reforms limiting the use of sexual history evidence, studies in several Australian jurisdictions demonstrate this evidence is still being widely used and that its use may be increasing (Mack and Roach Anleu 2000; Heenan 2002-2003). Studies across VIC, NSW and TAS show sexual history evidence being admitted in 52-76 per cent of cases studied (NSW Department for Women 1996; Heenan 2002-2003). Further, studies have found that sexual history evidence was admitted in court without the use of procedures required by law in 38 per cent of cases reviewed in TAS (Henning 1996: 24-28); 30 per cent of cases reviewed in VIC (Heenan and McKelvie 1997: 153); a "relatively high proportion" of those reviewed by the Victorian Law Reform Commission (2004: 203) and 35 per cent of cases reviewed in NSW (NSW Department for Women 1996: 230).

Where applications for the admission of sexual history evidence are made, compliance with legislative requirements is often "purely formal and technical", rather than providing "genuine scrutiny of evidence in the prescribed terms" (Henning and Bronitt 1998: 90). As a result, the intention of the legislation to exclude evidence suggesting that consent to sexual intercourse on one occasion means consent on every occasion is being routinely defeated (Henning and Bronitt 1998).

Requirements that applications for the admission of sexual history evidence must be made in writing and (in VIC) in advance are designed to ensure more thorough application of the provisions and prevent admission of evidence without the application of criteria established by law. The Victorian provisions were introduced after evaluation (Heenan and McKelvie 1997) found the previous provisions had not been sufficiently effective. However, recent evaluation of the Victorian legislation has found that cross-examination on sexual history is still taking place without a written application in about half of all cases and that sexual history evidence is admitted without permission "in a relatively high proportion of cases" (VLRC 2004: 203).

In jurisdictions that permit sexual history evidence with "substantial relevance" to facts in issue, the lack of guidance as to the meaning of "substantial relevance" has been criticised as unclear (Heenan 2002-2003). In the absence of legislative guidance, judges have wide discretion in making decisions about which evidence should be allowed, leaving room for the re-emergence of discriminatory interpretations of the law which were applied before law reform, along with the myths which sustained them (Henning and Bronitt 1998).

The clear implication of decided cases in many jurisdictions is that "the only material question is whether the exclusion of sexual history evidence would be unfair to the defendant, not whether it might be unfortunate for the complainant" (Lees 1996: 107). Only three Australian jurisdictions have attempted to address this lack of attention to the victim-complainant's rights through mandating court consideration of potential harm to the victim-complainant. Only TAS provides legislative guidance about how that task should be approached by the court.

The law of NSW seems to take a more promising approach by establishing a primary rule that sexual history evidence is not admissible, with stated exceptions. It was intended to remove judicial discretion as the "only means of ensuring that irrelevant evidence would be excluded" (Law Reform Commission of NSW 1998). However, in practice, "this bold legislative attempt to eliminate judicial discretion has been largely neutralised" by broad judicial interpretation of the exceptions and the absence of a "substantial relevance" requirement (Henning and Bronitt 1998: 84). The lack of a requirement that sexual history evidence must be substantially relevant means that evidence of limited relevance can be admitted if it falls within one of the statutory exceptions. While the NSW legislation provides the strongest protection for complainant witnesses, it has also been subjected to criticism on the basis that it places the accused's right to a fair trial at risk by excluding some evidence critical to the defence (Law Reform Commission of NSW 1998; MCCOC 1999; VLRC 2004).

Such persistent resistance to reform by courts and legal practitioners has prompted commentators to argue that the primary project facing reform in this area is to "challenge the deeply entrenched historical legal understanding of the pertinence of sexual history evidence which fuels the continued acceptance of its admission in rape trials today".

Various studies have demonstrated the reluctance of courts to refuse to admit evidence of prior sexual history involving the accused, even in jurisdictions where a requirement for the permission of the court is applicable (Heenan 2002-2003). Given the prevalence of sexual violence by male partners (VLRC 2003; Heenan 2004a) and the evidence from self-report studies suggesting most sexual offences are committed by people known to the victim, this is of particular concern. Many sexual offences are committed by partners, and these cases have particularly poor rates of reporting and conviction. Yet the cases in which sexual history evidence is most likely to be admitted are those in which the victim-complainant's partner or former partner is charged with a sexual offence. The pervasive admissibility of sexual history in such cases maintains the myth that consent to sexual intercourse on previous occasions implies consent on all occasions. Some commentators argue that this results in a return to the law of rape prior to modern reforms, which did not recognise that women could be raped by their husbands because marriage was thought to grant a permanent form of consent (Henning and Bronitt 1998).

The evidence suggests that many judges have failed to apply legislative criteria in a rigorous way (NSW Department for Women 1996; Henning and Bronitt 1998; Sheehy 2002; Temkin 2002). Others have actively resisted the limits placed on their discretion by laws which limit questioning about sexual experience (Mack 1993). In addition, reforms to the law of evidence have been actively resisted by defence barristers (Heenan 2002-2003), while prosecution barristers struggle effectively to counter defence arguments relying on rape myths (Lees 1996: 109; Henning and Bronitt 1998; Taylor 2004). Such persistent resistance to reform by courts and legal practitioners has prompted commentators to argue that the primary project facing reform in this area is to "challenge the deeply entrenched historical legal understanding of the pertinence of sexual history evidence which fuels the continued acceptance of its admission in rape trials today" (Heenan 2002-2003: 8). Despite case evaluation evidence to the contrary, defence barristers and judges told the Law Reform Commission of NSW (1998) that the procedural requirements of the legislation were always complied with unless prosecution and defence agreed the evidence in question was admissible.

If the accused has prior convictions, they are generally not admissible as evidence: this is because the law accepts that the accused should be tried for the specific acts alleged to have been committed in relation to the offence before the court, and not acts which took place at a different time. In contrast, "rape culture consistently denies female sexuality the ability to change over time" (Marcus 1992: 400), maintaining the myth that past consent makes present consent more likely.

Most jurisdictions state that sexual history evidence may be admissible if it might "materially impair" confidence in the reliability of the victim-complainant's evidence. In ordinary circumstances, it is difficult to see how evidence of sexual history could be relevant to the reliability of the victim-complainant's evidence without beginning from the premise that sexual promiscuity might make a woman less likely to tell the truth (Henning and Bronitt 1998). Ironically, however, despite these provisions being enacted to limit irrelevant use of sexual history evidence their very language seems to suggest that sexual experience has the capacity to be devastating to credibility.

Defence counsel have begun to argue that evidence or allegations of prior sexual assault imply that the victim-complainant's evidence may be unreliable because of emotional and psychological damage resulting from abuse or confusion between a number of prior assaults.

In some relatively recent cases, a new argument about how sexual experience might "materially impair" credibility has begun to emerge. Defence counsel have begun to argue that evidence or allegations of prior sexual assault imply that the victim-complainant's evidence may be unreliable because of emotional and psychological damage resulting from abuse or confusion between a number of prior assaults (Sheehy 2002; Heenan 2002-2003).9 The lack of clarity of provisions restricting admissibility of sexual history means that in some jurisdictions it is unclear whether evidence of non-consensual prior sexual activity falls within the scope of these provisions, and different judges - even within jurisdictions - are making different decisions about their applicability (Heenan 2002-2003). Cross-examination on prior sexual abuse can be particularly "humiliating and painful" and impacts most heavily on complainant witnesses from groups which experience high rates of victimization, such as Indigenous women and people with cognitive impairments (VLRC 2004: 202).

In the case of child victim-complainants, the admission of evidence of prior sexual abuse may be sought in order to argue that their detailed awareness of sexual matters can be explained by prior abuse and not by the assaults that form the basis of the charges currently before the court (Sheehy 2002; Taylor 2004). Taylor's (2004) research suggests that defence accounts of children's understanding of sexual matters form a critical issue for the credibility of child witnesses, making this an especially effective undermining of the spirit of sexual history laws.

Despite the incomplete success of these laws, evaluations of the effectiveness of legislation in VIC, NSW and TAS all point to strong judicial statements indicating the irrelevance of sexual history evidence, and convictions being achieved in the face of its admission (Henning 1996; NSW Department for Women 1996; Heenan and McKelvie 1997; Heenan 2002-2003; Taylor 2004). Although sexual history evidence is still being allowed into courts, there is considerable evidence to suggest that the legislation has reduced the amount and focus of the evidence being admitted (Henning 1996; Law Reform Commission of NSW 1998).

Ongoing evidence that judges, prosecutors and defence counsel are sometimes ignorant of relevant evidentiary doctrines, do not understand why such protections are needed, or are prepared to undermine them (Doyle and Barbato 1999) continues to fuel arguments for specialisation in court lists and for the creation of specialist sexual offences courts (Heenan 2004b). In addition, proposals for innovative strategies to ensure compliance with legislative requirements continue to emerge. The Victorian Office of Public Prosecutions has recently begun to support effective application of the law by advising defence counsel of the applicable law in writing, ensuring that inexperienced counsel are aware of their obligations (VLRC 2004).

Footnotes

3 In some jurisdictions, "reputation as to chastity".

4 s 4 (3) Sexual Offences (Evidence and Procedure) Act 1983 (NT); s 4 (4) Criminal Law (Sexual Offences) Act 1978 (Qld).

5 In Victoria, permission can also be granted if the evidence is of substantial relevance to the question of an appropriate sentence for an accused who has given written notice of their intention to plead guilty, has pleaded guilty, or has been convicted of all the sexual offences charged.

6 However, a Western Australian decision has found that cross-examination on previous allegations of sexual abuse, which have been withdrawn or discredited, is permissible provided questions are directed towards establishing that no sexual activity took place, rather than towards demonstrating a lack of credibility. The court found that this was not evidence of sexual activity, and consequently such questioning could proceed without the court's permission (R v Stergiou [2004] WASC 172). The court also found that cross-examination on the basis that the alleged sexual activity took place consensually would fall within the statutory restriction on sexual history evidence.

7 s 34i (1)-(3) Evidence Act 1929 (SA).

8 s 194M Evidence Act 2001 (Tas).

9 Arguments of this type are evident in jurisdictions beyond Heenan's study - for example, Hill v RWASCA 177; R v Stergiou [2004] WASC 172.