The offence of rape is among the most serious in our criminal law. The maximum available sentence is life imprisonment. Rape Crisis England and Wales has published figures from the government's Overview of Sexual Offending in England and Wales (January 2013). It is said that approximately 85,000 women and 12,000 men are raped in England and Wales each year and that conviction rates for rape are far lower than other crimes, with 5.7% of reported rape cases ending in a conviction.
Section 41 prevents, except with the leave of the court, the accused raising by way of defence the sexual behaviour of the complainant. For example, in cross-examination, questions may not be asked about any sexual behaviour of the complainant. Section 41 goes on, in a convoluted way, to set down the situations when a trial judge may permit such questions. It is not an example of brilliant legislative draftsmanship but the basic principle is clear - No evidence or questions about sexual behaviour without the trial judge's permission and permission may only be granted in accordance with section 41.
So, what has Mrs Harman proposed? Quite simply, her amendment would remove the words "except with the leave of the court" - see the proposed amendment. The outcome would be that no evidence could be adduced and no questions asked about any sexual behaviour of a complainant and no exceptions to this would apply. Thus, as just one example, a defendant would be prevented from giving evidence that he had been in a recent sexual relationship with the complainant. Furthermore, complainants would be free to make claims about their sexual behaviour and the defendant would not be able to challenge such claims.
Sexual offending is a difficult area of the law but there is no justification for denying defendants a fair trial which is guaranteed to ALL defendants by both common law and by Article 6 of the European Convention on Human Rights. Section 41 is Parliament's attempt to strike a balance between a fair trial and preventing unreasonable attacks on the complainant. The Harman amendment should be rejected.
See also Barrister Blogger - Harriet Harman's proposed ban on sexual history evidence would be grotesquely unfair