OPTIONS FOR REFORM - SEXUAL EXPERIENCE EVIDENCE
Introduction
3.1 Assessments of s 409B(3) vary. On the one hand, it has been criticised on the grounds of injustice and uncertainty. On the other, it is fair to regard it as a generally successful attempt to implement an important policy goal. There is general agreement that there needs to be some restriction on the admissibility of sexual experience evidence and that is it not appropriate to revert to the practice that existed before s 409B was passed. In this section of the paper, the Commission outlines several approaches to dealing with evidence of a sexual assault complainant’s past sexual experience:
- retain the restrictive approach of s 409B (that is, a blanket exclusion with specific exceptions) and either amend the current exceptions to overcome identified problems or formulate a new list of exceptions; or
- repeal s 409B and replace it with a provision that would make sexual experience evidence inadmissible but would give the judge a discretion to admit, or reject, the evidence; or
- repeal s 409B and rely on the protection for the complainant afforded by the Evidence Act 1995 (NSW) with or without a rider that would give the trial judge an added discretion to exclude evidence in sexual assault cases.
Option 1
Option outlined
3.2 The approach of s 409B would be retained. There would be a prohibition on sexual experience evidence unless it fitted into one of the exceptions outlined in the section. This would be achieved by amending s 409B to overcome the problems identified in paragraph 2.3. Alternatively, the exceptions would be reformulated.
Arguments in favour of option 1
3.3 The s 409B approach was a deliberate decision on the part of the New South Wales legislature.1 It seems to be more successful in restricting the admission of sexual experience evidence than the discretionary approach in other Australian jurisdictions. In their analysis of the Bureau of Crime Statistics research mentioned at paragraph 2.7, L’Orange and Egger concluded:
In general, it appears that the legislative specification of evidentiary “gates” has been more successful than the provision of a general judicial discretion.2
3.4 In Victoria, for example, a recent study by the Rape Law Reform Evaluation Project showed that sexual experience evidence is still admitted in a significant number of committal and trial proceedings in Victoria.3 In removing from judges a discretion concerning the relevance of a complainant’s sexual experience, s 409B removes the possibility that some such decisions might be based on outmoded views. It gives a high level of protection for sexual assault complainants and ensures they are not unnecessarily victimised in the court process.
Arguments against option 1
3.5 Experience has shown that the existing exceptions are not comprehensive enough. For example, the Court of Criminal Appeal has consistently held that s 409B prohibits cross-examination of a complainant about allegedly false complaints of sexual assault. It inevitably will be difficult, if not impossible, to formulate a list of exceptions that include all the circumstances in which it might be appropriate to admit sexual experience evidence. This may unduly restrict an accused person’s defence and lead to injustice in a particular case. In Canada, a provision that took a similar approach to that of s 409B was held to be unconstitutional in that it offended Canada’s Charter of Freedoms and Rights.
Option 2
Option outlined
3.6 Section 409B would be repealed. It would be replaced by a provision that would prohibit the admission of sexual experience evidence, except with the leave of the trial judge, as exists in other Australian jurisdictions. There may be limitations imposed on the exercise of the judge’s discretion over and above those imposed by the Evidence Act 1995 (NSW). For example, the section could provide that the discretion may be exercised only if:
- the evidence has “substantial relevance” to the facts in issue, and
- its probative value outweighs any distress, humiliation or embarrassment the complainant might suffer if it is admitted.
Arguments on favour of option 2
3.7 Provisions that give the trial judge a discretion to admit sexual experience evidence exist in all other Australian States and Territories. The Court of Criminal Appeal recommended a discretionary provision in R v Bernthaler.4 A Tasmanian study of transcripts of committal, trial and sentencing proceedings for major sexual offences over a period beginning three years before Tasmania’s sexual assault law reforms were enacted in 1987 and ending in 1994 was generally positive about the effectiveness of s 102A5 of the Evidence Act 1910 (Tas) in achieving its legislative goals. A discretionary provision would ensure that evidence that is highly relevant is not excluded merely because it did not fit within a pre-ordained exception. It would weigh the scales in favour of the accused which, in a criminal trial that may have very serious consequences for the accused, is appropriate. The trial judge has a general responsibility to ensure that a trial is fair and, as a matter of principle, he or she ought to have a general discretion to admit sexual history evidence in appropriate cases.
Arguments against option 2
3.8 The main argument against a discretionary provision is that “relevance” may not be an objective enough criterion for deciding whether or not to admit sexual experience evidence.
Whatever the test, be it one of experience, common sense or logic ... It is a decision particularly vulnerable to the application of private beliefs. Regardless of the definition used, the content of any relevancy decisions will be filled by the particular judge’s experience, common sense and/or logic.6
3.9 “Relevance” has sometimes been informed by some traditional views of women’s sexuality that bear little resemblance to modern reality. Judgments that are affected by myths and stereotypes will led to unjust results.
Option 3
Option outlined
3.10 Section 409B(3) would be repealed. There would be no legislation dealing specifically with the admissibility of evidence of the complainant’s sexual experience in sexual assault proceedings in New South Wales. Instead, the Evidence Act 1995 (NSW) would apply.7 Two alternative approaches could be adopted under option 3. The first would be to rely on the existing Evidence Act provision. The second would involve an amendment to the Evidence Act 1995 (NSW) to add to the relevant provisions the rider that, in deciding whether or not to admit evidence of the complainant’s sexual experience in sexual assault proceedings, the trial judge would be obliged to consider whether the probative value of the evidence outweighs any distress, humiliation or embarrassment the complainant might suffer if it is admitted.
Arguments in favour of option 3
3.11 The provisions of the Evidence Act 1995 (NSW), in particular, the cross-examination exception to the credibility rule, the tendency rule, the coincidence rule and the general discretion to exclude evidence, represent an appropriate balance between the rights of a complainant in sexual assault proceedings to have his or her privacy and dignity respected and the right of an accused to a fair trial.
Arguments against option 3
3.12 Despite the criticism that has been levelled at s 409B(3), it has not been suggested that there should not be a specific law restricting the admissibility of sexual experience evidence. In R v Morgan,8 for example, the Court of Criminal Appeal agreed, that, despite the problems with s 409B, there was a need for protective legislation. There is (and has been for many years) legislation of this kind in every jurisdiction in Australia.
ISSUE 13
Should the admissibility of evidence of the complainant’s sexual experience in sexual assault proceedings be governed by the provisions of the Evidence Act 1995 (NSW) and not by specific legislation?
If so, should the relevant provisions of the Evidence Act 1995 (NSW) be amended to add the rider that, in deciding whether or not to admit evidence of the complainant’s sexual experience in sexual assault proceedings, the trial judge would be obliged to consider whether the probative value of the evidence outweighs any distress, humiliation or embarrassment the complainant might suffer if it is admitted?
OPTIONS FOR REFORM - SEXUAL REPUTATION EVIDENCE
The issue
3.13 At common law, sexual reputation was sometimes admissible as relevant to the complainant’s credit and, very rarely, to the issue of belief in consent. Under the Evidence Act 1995 (NSW), evidence relevant only to credibility is generally inadmissible but may be led in cross-examination if it has “substantial probative value”. Propensity evidence, or evidence of, among other things, reputation, is not admissible to prove that a person has a tendency to act in a particular way unless notice is given and it has “significant probative value”, in which case the judge may admit it. Section 409B(2), on the other hand, absolutely prohibits evidence of a complainant’s sexual reputation. The issue is: should the blanket ban on sexual reputation evidence be retained?
Arguments for retaining the ban on reputation evidence
3.14 There are provisions similar to s 409B(2) in most other Australian jurisdictions, and the Model Criminal Code Committee has adopted a similar provision.9 Debate on s 409B has focussed on s 409B(3) and there have been no calls for the repeal of s 409B(2). There is no suggestion that evidence of a complainant’s sexual reputation should be regarded as being relevant to his or her credibility. It was clearly the purpose of the legislature in enacting s 409B that persons accused of sexual assault should not be able to assume consent on the basis of the complainant’s sexual reputation.
a person who seeks sexual intercourse with another should not be able to rely on scandal or gossip about the other person or on rumour or knowledge of that other person’s sexual behaviour with others, as a basis for assuming consent to intercourse.10
3.15 In principle, there seems no reason why they should. An accused should not be able to assume that a person consents to intercourse with him because he or she has consented to intercourse with another person in the past. The principle remains true even if the intercourse had been as a prostitute, or with a number of people, or outside an existing relationship with another person.
Arguments against retaining the ban on reputation evidence
3.16 The Evidence Act 1995 (NSW) gives a complainant enough protection against attack on his or her credibility on the basis of reputation.
FOOTNOTES
1. New South Wales - Parliamentary Debates (Hansard) Legislative Council, 8 April 1981 at 5456.
2. H L’Orange & S Egger “Adult Victims of Sexual Assault: An Evaluation of the Reforms” Proceedings of the Institute of Criminology (Sydney) (No 71, 1987) 12 at 24.
3. At committals, 19% of complainants were questioned about their sexual history with leave and 46% without (a total of 65%); at trial, 40% were questioned with leave and 30% without (a total of 70%): Rape Law Reform Evaluation Project, The Crimes (Rape) Act 1991, 153.
4. Kirby P and Badgery-Parker JA said s 409B should be amended to incorporate into the section “a residual discretion allowing a trial judge to determine whether despite the general principle of exclusion, evidence or cross examination of the proscribed kind should be admitted in a particular case”: R v Bernthaler (Court of Criminal Appeal, NSW, 17 December 1993, CCA, 60394/93, unreported).
5. Section 102A provides:
“102A (1) In any proceeding before a magistrate or a court relating to a crime charged under Chapter XIV or Chapter XX of the Criminal Code or an offence under section 35(3) of the Police Offences Act 1935 -
(a) any evidence which discloses or implies the sexual reputation of the person against whom the crime or offence is alleged to have been committed shall not be adduced or elicited; and
(b) any evidence which discloses or implies the sexual experience of that person, other than sexual experience which forms part of the events or circumstances out of which the charge arises, shall not be adduced nor elicited unless leave of the magistrate or judge is first obtained on application made in the absence of any jury.”
6. R v Seaboyer [1991] 83 DLR 193 at 228.
7. The relevant provisions of the Evidence Act 1995 (NSW) are discussed at para 1.11.
8. R v Morgan (1993) 30 NSWLR 543 at 552.
9. Model Criminal Code, s 37.1.
10. New South Wales - Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4761.
