Introduction

This chapter considers the degree to which the use of sexual history evidence continues to pose a problem in contemporary rape trials. To this end, we collate and analyse empirical studies, evaluating the extent to which these support claims either that the problems associated with the use of sexual history evidence have been resolved or that it continues to present justice challenges in the courtroom. As always, England and Wales, and to a lesser extent Scotland and Northern Ireland, are our primary jurisdictional focus, although we also highlight evidence that has emerged elsewhere, most notably from the jurisdictions considered in Chapter 4. As we shall see and based on the evidence available, the picture remains patchy and incomplete. Moreover, contestation abounds not just as to what can be gleaned from existing studies but also as to whether their conception and design is sufficiently robust to allow credible conclusions to be drawn. Part of the problem here is that the issue itself – the issue of what inferences can properly be drawn from evidence of a complainant’s prior sexual behaviour – garners little in the way of consensus among those who express a view: one person’s ‘use’ of sexual history evidence is another person’s ‘misuse’, with what passes for some as ‘common sense’ presenting as patriarchal ideology to others. In Chapter 6, we address this contestation head on, focusing directly on the nature and validity of relevance claims underpinning the use of complainant sexual history evidence in rape trials. For the moment, we draw attention to the fact that the underlying premises justifying the use of sexual history evidence are deeply disputed to highlight a particular problem associated with empirical efforts to chart its use and misuse.

A range of approaches have nevertheless been adopted to precisely this end. Studies of the use of sexual history evidence and/ or of the operation of legal regulatory frameworks designed to prevent or minimise its misuse have taken a variety of forms, including trial observations, analyses of court transcripts, audio files and other kinds of criminal justice records (for example, police files), surveys of or interviews with judges, lawyers, victims and diverse criminal justice stakeholders, jury simulation studies and analyses of case law.