Swindon Santuary lobbied on the Youth Justice and Criminal Evidence Act 1999 in relation to Section 41. Section 41 restricts the circumstances in which evidence or questions about sexual behaviour outside the circumstances of the alleged offence can be introduced.
Where the issue is one of consent, the court will only permit evidence of previous sexual behaviour where the behaviour happened at or about the same time as the alleged rape or was so similar to the behaviour at the time of the alleged offence that it could not be explained as coincidence.
If the court considers that the real main purpose for which the defence seeks to introduce the evidence is to undermine or diminish the credibility of the witness, the court should not allow it. Following a House of Lords ruling in R v A (2001) the court can consider permitting evidence of previous sexual behaviour between the complainant and the defendant if it is relevant to the issue and if the defendant would not otherwise have a fair trial.
Under section 34 of the Youth Justice and Criminal Evidence Act 1999 defendants who are charged with rape or certain other sexual offences are not allowed to cross-examine complainants themselves.
In 2000 the UK Labour government began the process of reforming laws relating to sex offences. The Home Secretary, Jack Straw set up the Sexual Offences Review Group.
Part of this comprised of a a reference group which included the Campaign to End Rape.
The terms of reference were:
“to review the sex offences in statute and common law in England and Wales and to make recommendations that will provide coherent and clear sex offences which protect the individual, particularly the most vulnerable, from abuse and exploitation; enable abusers to be appropriately punished; be fair and non-discriminatory in accordance with the Convention and the Human Rights Act.”
The review document entitled Setting the Boundaries, was published on 26th July 2000.
Home Office (July 2000) Setting the Boundaries: Reforming the Law on Sex Offences – Volume 1, London, Home Office.
This went on to inform the Sexual Offences Act 2003
The Sexual Offences Act 2003 (the Act) came into force on the 1 May 2004. It repealed almost all of the existing statute law in relation to sexual offences. The purpose of the Act is to strengthen and modernise the law on sexual offences, whilst improving preventative measures and the protection of individuals from sexual offenders.
The main provisions of the Act include the following:
- Rape is widened to include oral penetration
- Significant changes to the issue of consent and the abolition of the Morgan defence
- Specific offences relating to children under 13, 16 and 18
- Offences to protect vulnerable persons with a mental disorder
- Other miscellaneous offences
- Strengthening the notification requirements and providing new civil preventative orders
Under the Act the non-consensual offences are rape, assault by penetration, sexual assault and causing a person to engage in sexual activity. The Act removes the element of consent from many offences, so that only the act itself and age or other constraints need to be proved.
The Act has three important provisions relating to consent. They are:
- A statutory definition of consent
- The test of reasonable belief in consent
- The evidential and conclusive presumptions about consent and the defendant’s belief in consent
Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”. In the offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent, a person (A) is guilty of an offence if (s)he:
- Acts intentionally;
- (B) does not consent to the act; and
- (A) does not reasonably believe that B consents.
Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1-4). It is likely that this will include a defendant’s attributes, such as disability or extreme youth.
This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps he took to satisfy him that the complainant consented.
The law has been enhanced but improvements are required particularly in the way women are treated by the police and in court.