The Use of Sexual History Evidence and Sensitive Private Data in Scottish Rape and Attempted Rape Trials
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About the project
The project evaluated the current implementation of the Scottish ‘rape shield’ laws, which restrict the use of evidence of a complainer’s character or sexual history in sexual offences trials. The researchers gathered data over a 2-year period, which involved interviewing criminal justice stakeholders, analysing case files and observing hearings in attempted rape and rape trials where applications had been made to introduce sexual history or character evidence.
The project was funded by the Scottish Government Justice Analytical Services, and undertaken with the assistance of Rape Crisis Scotland and a Project Advisory Board of criminal justice stakeholders.
Project team
Professor Sharon Cowan, Edinburgh Law School
Mr Eamon P.H. Keane, University of Glasgow
Professor Vanessa E. Munro, University of Warwick
Findings
Against the backdrop of shifts in law, policy, and practice in this area over the last two decades, the researchers found that some progress has been made since the last evaluation of the operation of the law in this area in 2007. Legal counsel are now less likely to make applications relating to irrelevant evidence, and judges and counsel are more likely to challenge the relevancy of such evidence. It was found that, in contemporary trials, there is greater judicial awareness and rigorous application of the legislation and common law that limit the use of evidence about a complainer’s sexual history and character, and fewer unjustified disclosures of this type of evidence. The views of complainers are increasingly considered in hearings about whether and how sexual history and character evidence is used, reflecting a shift toward more complainer-centred practice.
However, there remain areas for further improvement. A significant degree of confusion persists about when an application to introduce this type of evidence needs to be made, and what detail it should or should not include. The study confirms that while the legal framework is implemented more rigorously than before, its application is not yet uniform. In addition, outdated gender stereotypes can still undermine a complainer’s credibility, and in some instances irrelevant sexual history is admitted.
To address these inconsistencies, the researchers called for enhanced training for legal professionals and judges on how to interpret and apply the law in these cases, as well as continued judicial oversight to ensure decisions are made consistently. They also recommended more robust data gathering and monitoring by criminal justice agencies of the use of such evidence. The researchers identified the need for more trauma-informed processes and, in line with the Victims, Witnesses and Justice Reform (Scotland) Bill, supported proposals for the independent legal representation of complainers in court hearings relating to applications to introduce sexual history and character evidence.
The Scottish government’s Justice Secretary welcomed the recommendations and supported their integration into policy.
Other Publications:
Sharon Cowan, Eamon P.H. Keane and Vanessa E. Munro (2025) ‘The use of complainers' sexual history and character evidence in Scottish rape and attempted rape trials’ Criminal Law Review 6, 324-343
