EHRC calls for review of sexual history provisions

An urgent review is needed of how courts and the Crown Office & Procurator Fiscal Service respond when survivors of sexual violence have details of their sex lives raised during sexual offences trials, according to the Equality & Human Rights Commission in Scotland.

The EHRC made its call as it published a report reviewing the literature and legal cases on the use of sexual history evidence and personal information in rape and sexual assault trials in Scotland. The report, commissioned by the EHRC from Professor Sharon Cowan at the University of Edinburgh Law School, also looks at how use of this evidence affects survivors’ access to justice.

The report finds evidence of a potential "justice gap" in Scotland, and identifies concerns about how effective the rape shield provisions are in practice. Intended to restrict evidence of sexual history and bad character to where there is a sufficient connection with the facts of the case, the law has been found to be compatible with the European Convention on Human Rights in balancing the rights of the accused and the complainer. But the report concludes that "in practice there appears to be ample room for improvement, particularly with respect to protecting the dignity and privacy of the complainer".

Conviction rates for rape and attempted rape remain 40% lower than for other crimes.

A lack of systematic data collection and research makes it difficult to scrutinise the operation of the provisions, but the little evidence which is available "suggests prosecutors rarely challenge the introduction of sexual history and bad character evidence. There is an urgent need to review how and when this evidence is introduced, and in particular, the extent to which it is challenged by prosecutors".

A need is also identified to strengthen the protections for people who bring forward allegations of sexual crimes, through legal and procedural reform. These include developing a model of state funded independent legal representation for complainers in hearings about the relevance of sexual history and bad character evidence, and clear rules on the retention of digital data to ensure complainers’ rights to privacy.

Laura Hutchison, head of compliance at the EHRC in Scotland, commented: "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."

Click here to access the report and accompanying papers.