Vulnerable Witnesses Flashcards
(12 cards)
S.41(3)(b) YJCEA
The defence can question V on their sexual behavior where that behaviour occured at the same time as the offence.
R v Mukadi - oral sex moments before was considered sexual behaviour, getting in the car hours before was not.
R v A No 2 2002 all the judges say differently, no clear definition. Lord Clyde and Lord Hope attempted to suggest it could be the same day or even the next day. This would likely cause V to experience judicial rape (retraumatisiation) if allowed to be questioned on sexual behaviour days prior.
S.41 (3)(c) YJCEA
V can be questioned on their sexual behaviour when that behaviour is of a nature so similar to that which occured during the offence that it would be unreasonable not to explain it away as a coincidence.
This is a wide gateway, R v Evans saying and doing the same thing during the offence as another time even with another person can open this gateway.
S.41(5) YJCEA
The defence can, as far as possible, question V on their sexual behaviour that has previously been brought into evidence by the prosecution.
McGlynne justifications for restricting the defendant’s rights to question witnesses on their sexual behaviour and or history.
Twin myths - sexually active women are (1) more likely to consent and (2) less credible.
Moral character is wrongly inferred from sexual history.
Consent is situation specific and nothing can be gained really from analysing past actions.
Judicial rape - extensive and invasive cross examination can retraumatise victims.
McGlynn (2017) on s.41(3) in practice
Despite being propped up as narrow gateways designed to protect victims as far as possible,
studies show that sexual history evidence is allowed in 1/3 to 2/3 of rape trials.
Success rates with admitting sexual history evidence correlates with aquittal rates.
R v Evans problem
During the offence a video was taken, and there were spectators. this evidence was denied to D because it impugned the credibility of V as he looked as though she was enjoying it.
On appeal, new evidence came to light that because V had said and done similar things with third parties the CA the allowed evidence gathered by Evans during the offence.
Dangerous precedent allowing third party evidence seems to lead to rape myth of promiscuous women.
McEwan (2006) on s.41(3)(a)
s41(3)(a) has been applied inconsistently in its history. Canadian courts require equivocal behaviour evidence before behaviour can be misinterpreted as consent. This evidence has not always been demanded in th UK.
McEwan states that reasonable belief in consent can only be established through equivocal conduct evidence and not adhereing to this risks defeating the purpose of rape shield laws as PSH can simply be let in without clear barriers.
What is sexual behaviour
Defined in section 42(1)(c) YJCEA 1999
Basically any sexual contact
R v Mukadi getting in the car was found to be sexual behaviour.
R v Ben-Rejab taking a quiz was considered sexual behaviour.
s.41(4) YJCEA 1999
Even if admissable through one of the gateways, in (3) and (5) if the purpose of evidence is to impugn the credibility of the witness it will not be allowed.
s.41(3)(a)
The statutory gateway where consent is not an issue. R v Bahador - strip club worker getting in car. dancing was sexual behaviour, and it was noted that ss(3)(b) would allow the TJ to admit the evidence, but not ss(3)(a) because D admitted C had not consented so the issue needs to be not oneof consent.
R v Mukadi
R v Ben-Rejab
In Mukadi the CA found that evidence of V getting in D’s car prior to the offence was
In Rejab online quizzes where considered sexual bahvaiour. - so even separate behaviour when alone online can allow the jury to infer consent??
