New research raises “serious concerns” over use of survivors’ sexual history in rape and sexual assault trials

The Scottish equality regulator has published the findings of its research into the use of sexual history and bad character evidence in Scottish sexual offences trials. It has called for an urgent review of how courts and the Crown Office and Procurator Fiscal Service (COPFS) respond when survivors of sexual violence have details of their sex lives raised during trials.

The Commission’s research, conducted by Professor Sharon Cowan, urges action to understand the extent of the so-called ‘justice gap’ in this area of law and highlights that Scotland has fallen behind other areas in producing research which shines a light on this practice.

“We commissioned this research to understand the concerns about the use of sexual history and bad character evidence in rape and sexual assault trials in Scotland, and to have a fuller understanding of the impact the use of this evidence has on survivors of sexual violence and their access to justice,” said Laura Hutchison, Head of Compliance at the Equality and Human Rights Commission Scotland. 

“In the last 10 years, the number of rape and attempted rape crimes recorded by Police Scotland has more than doubled. Yet the conviction rate for these crimes is 40% lower than it is for all crimes. Laws are already in place to stop the use of evidence about sexual history and bad character when it is not sufficiently connected to the facts of the case. The evidence we reviewed suggests that Crown prosecutors rarely challenge the introduction of irrelevant sexual history and bad character evidence. In five recent High Court appeal cases senior judges raised significant concerns about the way the law is being implemented in practice. As there is so little publicly available evidence, we are unable to say with confidence that the poor practices identified in these appeal court decisions are rare or do not have a significant and damaging effect on the dignity and privacy of survivors and their access to justice.”

The report identifies four distinct areas requiring urgent attention, including a review of how sexual offences cases are managed throughout the prosecution process, and how COPFS ensures it complies with its equality obligations under the Public Sector Equality Duty when it is developing, revising and monitoring its policies, including responding to applications to use survivors’ sexual history as evidence.

“This research shows that there is an urgent need to thoroughly review practice in this area, since the last report on the use of sexual history evidence in Scotland was published over a decade ago," said Prof Cowan.

"We can see that there are serious problems in the application of the law but we don’t know how widespread these problems are. It is time for Scotland to ensure that the rules that are intended to protect complainers in sexual offences trials are being properly and fairly implemented throughout the court process.”

The Equality and Human Rights Commission is the National Equality Body (NEB) for Scotland, England and Wales, and they work to eliminate discrimination and promote equality across the nine protected characteristics set out in the Equality Act 2010. The summary report is available from the Commission’s website and all other reports, including a copy of the original review are available on request.