Prior sexual conduct is inadmissible and irrelevant. Legislation should provide a presumption that evidence of the prior sexual conduct of the complainant with the accused or another person, as well as their ‘sexual reputation’, is inadmissible or only admissible with prior leave of the court and with strict safeguards.
Good practice on this point requires balancing the rights of an accused person to a fair trial with the rights of a complainant to equal protection of the law, privacy and dignity. Evidence of a complainant’s prior sexual history is generally irrelevant, yet it has been and is often allowed to discredit the complainant herself, as well as her evidence that she did not consent to the sexual activity that is the subject of the criminal complaint. Providing that such evidence is inadmissible protects complainants from irrelevant questioning that is often traumatising and which violates their privacy. Allowing evidence of a complainant’s prior sexual conduct or sexual reputation is not good practice as it allows an inference of consent to be drawn from irrelevant factors.
A small number of Commonwealth countries have excluded such evidence altogether, while others may allow it with the leave of the court in limited circumstances, such as when it relates directly to the sexual activity that is the subject of the charges and has a very high probative value that outweighs any potential prejudice to the proper administration of justice or the complainant’s personal dignity and right to privacy. Depending on the extent to which such evidence is allowed and which safeguards are put in place in the law, this approach may meet good practice standards.