Admissibility of Sexual History Evidence and Allegations in Rape Cases

• NCJ Number: 82136
• Journal: Australian Law Journal Volume: 53 Issue: 12 Dated: (December 1979) Pages: 817-831
• Author(s): J A Scutt
• Date Published: 1979
• Length: 15 pages
• Publication Format: Article
• Language: English
• Country: Australia

Annotation

Legal issues bearing upon the admissibility of the victim's sexual history into the trial of rape cases are examined under Australian rules of evidence.

Abstract

Ways in which information on the victim's sexual history has been used in rape cases should not be permitted under current rules of evidence that exclude irrelevant and prejudicial material. Clearly, evidence that a victim has had previous sexual intercourse with persons outside of marriage does not establish that she consented to have intercourse with the defendant; neither does the establishment of promiscuity in sexual relations indicate the victim is untruthful. Further, establishing the victim as a 'fallen' woman does not mean she deserves whatever sexual fate may happen to her, including rape. To admit information on a rape victim's sexual history on any of these flawed grounds is to violate current rules of evidence. The victim's prior sexual history may be relevant, however, when it involves prior sexual relations with the defendant, shows that another person may be responsible for the act charged, shows that the victim herself committed the physical injury giving rise to the charge, or indicates a motive to fabricate the charge. Since issues of relevancy must be determined for each case, the preferred procedure is for the defendant's attorney to make a written motion where sexual history evidence is sought to be entered into proceedings. A hearing in camera would then be held to determine relevance and admissibility. The judge's decision and the reasons for it would then be entered into the court record. This procedure should be monitored by the State to ensure there is not a practice by judges to admit sexual history evidence clearly irrelevant to the charges. More restrictive evidence guidelines may be required should this monitoring show misguided judicial practice. Fifty-three footnotes are provided.