The relevance and admissibility of prior sexual history with the defendant in sexual offence cases

Prior to the coming into force of the Youth Justice and Criminal Evidence Act 1999 (YJCE), evidence of prior sexual history between the complainant and defendant (as opposed to evidence of sexual history between the complainant and third parties) was generally admissible in rape cases, having been left outside the provisions of the Sexual Offences (Amendment) Act 1976. While third party evidence was widely regarded as generally irrelevant to consent, the relevance of sexual history between complainant and defendant was only rarely discussed. The YJCE appears to place both types of evidence on the same footing, and imposes tight restrictions on their admissibility on the issue of consent. This article argues that in so far as the YJCE restricts the admissibility of prior sexual history between the complainant and the defendant it risks the exclusion of relevant evidence and consequently risks contravening the defendant's right to a fair trial. The article re-examines the critical academic literature in the UK on the relevance of prior sexual history evidence and reviews the Parliamentary debates during the passage of the YJCE. The article also examines legislation, caselaw, academic debate and reform proposals in several other jurisdictions. The article concludes that no proper foundation for this aspect of the legislation has been laid, and explores ways in which relevant provisions might be 'read down' so as to avoid the exclusion of relevant evidence.