CHARACTER EVIDENCE

IN RAPE TRIALS
A Comparative Study of Rape Shield Laws and the
Admissibility of Character Evidence in Rape Cases
A research note by Norton Rose Fulbright (South Africa) for the Bangladesh Legal Aid and Services Trust (BLAST)

JANUARY 2015
ACKNOWLEDGEMENTS

The Thomson Reuters Foundation is grateful to Norton Rose Fulbright (South Africa) who
coordinated this research, as well as Blake, Cassels & Graydon LLP, J. Sagar Associates,
Mughal Barristers, and White & Case for donating their time and expertise to Bangladesh
Legal Aid and Services Trust (BLAST). The TrustLaw team is very grateful to the lawyers who
contributed to the research.

In particular we would like to thank:

ANEESA BODIAT and LARA KERBELKER

TAMARA NACHMANI, ALESSIA KALISH and SHUBHREEN

KAUR

POONGKHULALI BALASUBRAMANIAN, CHITRA NARAYAN and

BHAVANA ELIZABETH ALEXANDER

BARRISTER USMAN A. MUGHAL

MICHAEL CARRILLO, RACHAEL CRESSWELL, JESSE GREEN,

CATRIONA HENDERSON, NICOLA HENSHALL, CHARLIE
LIGHTFOOT, CAITLYN MCCARTHY and ALLEN WANG

I
DISCLAIMER

This research note and the information it contains is provided for general informational purposes only. It
has been prepared as a work of comparative legal research only and does not represent legal advice in
respect of the laws of Canada, India, Pakistan, Singapore, South Africa, the United Kingdom or the United
States. It does not purport to be complete or to apply to any particular factual or legal circumstances.
It does not constitute, and must not be relied or acted upon as, legal advice or create an attorney-client
relationship with any person or entity. Norton Rose Fulbright (South Africa), Blake, Cassels & Graydon
LLP, J. Sagar Associates, Mughal Barristers, White & Case and the Thomson Reuters Foundation do not
accept any responsibility for losses that may arise from reliance upon the information contained in this
research note or any inaccuracies therein, including changes in the law since the research commenced
in July 2014. Legal advice should be obtained from legal counsel qualified in the relevant jurisdiction(s)
when dealing with specific circumstances. None of the lawyers at Norton Rose Fulbright (South Africa),
Blake, Cassels & Graydon LLP, J. Sagar Associates, Mughal Barristers, White & Case and the Thomson
Reuters Foundation holds itself, himself or herself out as being qualified to provide legal advice in respect
of any jurisdiction as a result of his or her participation in or contributions to this research note.

II
TABLE OF CONTENTS

ACKNOWLEDGEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

FOREWORD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

EXECUTIVE SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

THE STUDY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CANADA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

INDIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

PAKISTAN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

SINGAPORE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

SOUTH AFRICA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

UNITED KINGDOM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

UNITED STATES OF AMERICA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

III
FOREWORD
Rape is a horrific crime committed everyday across the globe, but the Indian subcontinent
continues to dominate headlines. In 2012, the brutal gang rape of a young student in New
Delhi outraged the world, prompting mass demonstrations and calls for legislative change
and harsher punishment. The dreadful episode prompted more rape victims to come
forward to report the crime. In fact, in 2013, 34,000 rape offenses were reported across
India, a 30% rise from the year before. Still, the number doesn’t correctly capture the real
extent of the problem, given that the majority of rape victims do not report the crime.
Significant cultural and legal obstacles stand in the way of real progress. They range from
cultural misogynistic attitudes to weak legislative frameworks in regards to prosecution of
the perpetrators of sexual violence.
Moreover, social stigma surrounding rape victims prevents many survivors from
reporting violations and seeking redress. Victims are condemned to live in shame, with
consequences ranging from the loss of family connections and employment, to the
development of mental health issues that often remain untreated.
It is clear that the justice system must be dramatically strengthened to ensure that victims
have the best chance of accessing justice. That’s why the Thomson Reuters Foundation
has facilitated legal support for the Bangladesh Legal Aid Services Trust (BLAST) to
advocate for rape law reform in Bangladesh.
The Thomson Reuters Foundation is dedicated to strengthening women’s rights through
the rule of law. Our annual Trust Women Conference brings together leading experts
and pioneers in the field of women’s rights to forge tangible commitments to empower
women and to fight human trafficking and modern-day slavery. TrustLaw, our global pro
bono programme connecting the best law firms around the world with NGOs and social
enterprises in need of free legal assistance, is also very active in putting the rule of law
behind women’s rights.
Through TrustLaw, we connected BLAST with Norton Rose Fulbright (South Africa), Blake,
Cassels & Graydon LLP, JSA Advocates & Solicitors, Mughal Barristers and White & Case.
Coordinated by Norton Rose Fulbright, the law firms conducted cross border research
in seven countries to support BLAST in advocating for the removal of a Bangladeshi
legislative provision which permits the use of character evidence in rape trials. This
discriminatory provision transforms many rape trials into determinations of a victim’s
sexual morality rather than the defendant’s guilt.
We are confident this research will support BLAST in their efforts to create a cohesive and
united movement for reform in Bangladesh.

MONIQUE VILLA
CEO, Thompson Reuters Foundation
1
INTRODUCTION

The conviction rate for rape cases in Bangladesh is extremely

low. Despite the existence of stringent laws criminalising
rape, perpetrators routinely go unpunished. Social stigma
surrounding rape prevents many survivors from reporting
violations and seeking redress. A UN study on male violence in
Asia , which surveyed perpetrators of rape, found that 95% of
1

urban respondents and 88% of rural respondents in Bangladesh

reported facing no legal consequences for raping a woman or
girl. Where survivors do seek redress, protracted and adversarial
court proceedings and challenges faced throughout the criminal
justice system often results in the denial of justice.
One significant barrier to prosecuting rape cases is the defence’s opportunity to
impeach the victim’s character at trial. SECTION 155(4) OF THE EVIDENCE ACT OF 1872
sanctions the admission of character evidence in rape prosecutions. It states that “when
a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix
was of generally immoral character.”
The introduction of character evidence is humiliating and degrading for the victim.
While a victim’s character has no bearing on determining consent, statements about
the victim’s character made by the defence are taken into serious consideration by the
courts. Any suggestion that the victim is “of easy virtue” may result in an acquittal for
the defendant even if the court has found that non-consensual intercourse occurred.
The Bangladesh Legal Aid and Services Trust (BLAST)    is a specialised non-
governmental legal services organisation which supports the poor and marginalised
to access formal and informal justice systems in Bangladesh. As a part of this work
BLAST also lead advocacy efforts for law and policy reform, with rape legislation being
a key focus area. BLAST has previously led successful reform efforts relating to archaic

1 UN, ‘Why Do Some Men Use Violence Against Women and How Can We Prevent It? Quantitative Findings from the UN
Multi-country Study on Men and Violence in Asia and the Pacific’, p.45

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 CHARACTER EVIDENCE IN RAPE TRIALS
A COMPARATIVE STUDY OF RAPE SHIELD LAWS AND THE ADMISSIBILITY OF CHARACTER EVIDENCE IN RAPE CASES

procedures for the collection of medical evidence in rape cases. BLAST is now seeking
to amend laws that permit the consideration of character evidence in rape trials. This
will create a stronger legal framework to protect rape victims from harassment or
character assassination at trial.
BLAST partnered with TrustLaw, the Thomson Reuters Foundation’s global pro bono
service, to provide a legal analysis of rape shield laws and the admissibility of character
evidence in rape trials. Through TrustLaw, BLAST was connected to lawyers in England
and Wales, Canada, India, Pakistan, Singapore, South Africa and the United States. The
research questions addressed were –
—— Are there any character evidence provisions specific to rape trials in the relevant
legislation?
—— Where such provisions exist, has there been a reform movement? If so, what have
been the key achievements of the reform?
—— Where the law has been reformed to prohibit the use of character evidence at trial
or if such provisions never existed, are there rape shield laws in place? If so, what is
the extent of the protection afforded to rape victims?
BLAST is using this research as a part of their advocacy efforts to reform the
aforementioned discriminatory provision of the Evidence Act in Bangladesh.

3
EXECUTIVE SUMMARY
Norton Rose Fulbright

We investigated seven jurisdictions and the general trend is for there to be a restriction
on the admissibility of character evidence in rape and sexual assault trials. Where such
evidence is allowed, there is usually a restriction on how the evidence may be provided.
For example, the evidence may have to be provided in camera or in judge’s chambers,
and not in public.
Most jurisdictions went through or are going through a reform process to protect
victims of sexual assault from attacks on their credibility and character at trial. These
jurisdictions highlight the importance of protecting the victims of sexual crimes and
recognise that it may be traumatic for the victim to be cross-examined, especially if
character evidence is allowed.
These are highlights from the jurisdictions where the research was completed:

CANADA
1. Canada’s current “rape shield laws” were enacted in 1992 with legislation
that amended the Canadian Criminal Code providing strict guidelines for
when and how previous sexual conduct could be used by a defendant at trial.
2. The law places the onus on the defence to demonstrate that the proposed
evidence pertains to specific instances of the complainant’s sexual activity.
The judge must determine whether the evidence has significant probative
value not outweighed by its prejudicial effects, taking into account the
need to remove discriminatory biases from the trial process and the
need to protect the complainant’s dignity and privacy, among other
factors. This legislation seeks to balance the accused’s rights with those
of the complainant. It also endeavours to protect society’s interests in
encouraging the reporting of sexual assaults.

INDIA
1. Character evidence has been made irrelevant in cases of sexual assault
in India and questions regarding the moral character of the victim or her
previous sexual experience are impermissible even during the course of
cross-examination.

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 CHARACTER EVIDENCE IN RAPE TRIALS
A COMPARATIVE STUDY OF RAPE SHIELD LAWS AND THE ADMISSIBILITY OF CHARACTER EVIDENCE IN RAPE CASES

2. Judges presiding over rape trials will have to ensure that questions
relating to the character of the victim are not allowed to be posed during
the course of the trial.

PAKISTAN
1. In criminal proceedings the fact that the person accused is of good
character is relevant.
2. In criminal proceedings the fact that the accused person has a bad character
is irrelevant, unless evidence has been given that he has a good character, in
which case it becomes relevant (the evidence is relevant in reply).

SINGAPORE
1. Although SECTION 157(D) OF THE EVIDENCE ACT (which allowed the
credibility of a witness to be impeached by showing immoral character)
was repealed, a victim’s sexual history is still admissible in certain
circumstances.
2. For example, evidence of prior consensual sexual activities between
the two parties could be used to demonstrate the victim’s state of mind
toward the accused.
3. Importantly, the admissibility of a sexual assault victim’s past sexual
history depends on the relevance of such evidence to the issues in the
proceedings and need not rest on an express provision to this effect.
4. This gives the court significant latitude to determine “relevance”.

SOUTH AFRICA
1. The sections on evidence relating to sexual assault trials provides that
evidence of prior sexual history, other than evidence relating to sexual
experience or conduct in respect of the offence which is being tried, may
not be led or raised in cross-examination except with leave of the court,
or unless evidence of prior sexual history has been introduced by the
prosecution.
2. SECTION 227 OF THE CRIMINAL PROCEDURE ACT also provides factors
which a court must consider in such an application. Despite this, a strong
measure of judicial discretion is maintained. This discretion allows the
court to balance the rights of the complainant with the accused’s right to
a fair trial, and to admit the evidence in the event that it is relevant to the
accused’s defence.

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 CHARACTER EVIDENCE IN RAPE TRIALS
A COMPARATIVE STUDY OF RAPE SHIELD LAWS AND THE ADMISSIBILITY OF CHARACTER EVIDENCE IN RAPE CASES

UNITED KINGDOM
1. In 1999 THE YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT was introduced.
It established the prima facie position that, except with the leave of the
court, no evidence may be adduced and no evidence asked in cross-
examination by or on behalf of the accused at trial about any sexual
behaviour of the complainant.
2. In order for the court to grant such leave, it must be satisfied that refusing
leave “might have the result of rendering unsafe a conclusion of the jury
or… the court on any relevant issue in the case”.
3. The Home Office commissioned a report evaluating the limitation on the
use of sexual behaviour evidence relating to the complainant in rape trials
and recommended further changes to the law.

UNITED STATES OF AMERICA

1. Various different states have differing rape shield laws. The differing laws
can be categorised into four broad categories:
a. LEGISLATED EXCEPTION (evidence is admissible if they fit within certain
legislated exceptions).
b. CONSTITUTIONAL CATCH-ALL (similar to legislated exceptions, but
admissible if the U.S. Constitution requires. This is the federal law).
c. JUDICIAL DISCRETION (little to no guidance in the statute; court applies
a standard relevance test and weighs probative value against the risk
of prejudice).
d. EVIDENTIARY PURPOSE (the guidance varies based on the purpose for
which the evidence is being offered)
2. Precluding evidence of a victim’s sexual history involving people other
than the defendant is consistent with the concept that a “victim’s consent
to intercourse with one man does not imply her consent in the case of
another.”
3. With respect to determination of whether evidence is admissible under
any rape shield statute including judicial consideration, under any of the
four categories, it is critical that the consideration be done so outside the
hearing of the jury and also away from the public.

6
CANADA

BACKGROUND AND HISTORY

Canada’s current “rape shield laws” were enacted in 1992 with legislation that amended
the CANADIAN CRIMINAL CODE2 providing strict guidelines for when and how previous
sexual conduct could be used by a defendant at trial. Amendments were made to the
provision that governs the admissibility of evidence of sexual activity, as well as refining
the definition of consent to a sexual act and restricting the defence that an accused
had an honest but mistaken belief that the accuser had consented. These amendments
were the result of the previous rape shield laws (enacted in 1982) being struck down by
the Supreme Court of Canada in 1991.
Under Canadian law, only evidence that is logically probative may be admitted and
evidence may be excluded on the basis of a variety of evidentiary rules and policy
grounds. In general, this balancing test involves a determination of whether the
probative value of the evidence outweighs its prejudicial effect. The law and reform
related to the admissibility of character evidence of the complainant in rape cases has
focused on this balancing test.

REFORM PROCESS

Rape under the Common Law

—— Rape was codified in the Criminal Code in 1982, up until which point it was a
common law offence. Under the common law, marital rape was not recognized.
Studies conducted had showed widespread gender bias within the criminal law
system3. For example, a woman’s testimony under oath was often considered
to be untrustworthy and such evidence alone would not lead to conviction.
Similarly, complaints were regularly disregarding if the victim did not
immediately report a rape after its occurrence.
—— The prior sexual history of the complainant was also admissible on two grounds at
common law: consent and credibility.
A woman’s credibility as a rape victim often depended on her sexual reputation
because her previous sexual conduct (both with the defendant and otherwise)
were considered linked with the likelihood that she had consented or was
lying4. Evidence of specific incidents of prostitution, opinion evidence that

2 Criminal Code, RSC 1985, c C-46.

3 K. Tang, ”Rape Law Reform in Canada: The Success and Limits of Legislation” (1998) 42:3 International Journal of
Offender Therapy and Comparative Criminology, 259.
4 P. Kobly, “Rape Shield Legislation: Relevance, Prejudice and Judicial Discretion” (1992) 30 Alta. L. Rev. 988.

7
 the complainant was a prostitute and evidence that the woman habitually
submitted her body to different men (for pay or not) were also considered to be
relevant to the issue of consent at common law5.
Studies consistently showed that the admission of character evidence relating to the
complainant was clearly prejudicial. For example, an increase in information received
about the complainant’s sexual history resulted in a correlated decrease in the
perceived guilt of the accused6. As a result of the mounting body of evidence, beginning
in 1975 major changes to the offence of rape were introduced.
The Criminal Code abolished “rape” and spousal immunity for rape, and a new crime of
sexual assault was enacted, using three tiers in order to capture degrees of additional
violence perpetrated against the victim. However the failure by the courts to implement
the new legislation in a manner consistent with the purpose of the legislation called for
further reform.
In response to criticism, new reforms were introduced in 1982 with the objectives of
protecting the integrity of the complainant and eliminating sexual discrimination. The
new legislation prohibited the introduction of any evidence on behalf of the accused that
concerned the sexual activity of the complainant with anyone other than the accused,
subject to three exceptions:
a. evidence that rebutted evidence of the complainant’s sexual activity
or absence thereof that was previously adduced by the prosecution;
b. evidence of specific instances of the complainant’s sexual activity
tending to establish the identity of the person who had sexual
contact with the complainant on the occasion set out in the charge; or
c. evidence of sexual activity that took place on the same occasion as
the sexual activity that formed the subject-matter of the charge,
where that evidence related to the consent that the accused alleged
he believed was given by the complainant.
The legislation was subject to several constitutional challenges, primarily on the basis of
the accused’s rights under SECTIONS 7 (THE RIGHT TO LIFE, LIBERTY AND SECURITY OF THE
PERSON) and 11(D) (THE RIGHT TO A FAIR TRIAL) of the Canadian Charter of Rights and
Freedoms (the “Charter”)7.
All of these challenges led to confusion regarding the legal status of the legislation.
Further reform came as a result of a 1991 Supreme Court ruling that struck down the
legislation as unconstitutional. Parliament enacted new legislation that refined the
definition of consent to a sexual act, restricted the defence for an accused who had an
honest but mistaken belief that the complainant had consented, provided guidance
to the courts on the question of relevance and attempted to provide a better balance

5 Quoted by L’Heureux-Dube, J Re: Seaboyer v. The Queen; Re Gayme and the Queen, [1991] 2 S.C.R. 577.
6 Supra, note 3.
7 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.

8
between the accused’s Charter rights and the complainant’s right to privacy. The new
legislation was upheld as being constitutional in a 2000 Supreme Court decision and
currently remains in force.

CURRENTLY

LEGISLATION
The rape shield provisions in Canadian law are governed under S. 276, 276.1, and 276.2 OF
THE CRIMINAL CODE. In 1992, BILL C-49 was passed into law to amend s. 276. The section
governs the admissibility of evidence of all sexual activity, including that between the
complainant and accused.
The law places the onus on the defence to demonstrate that the proposed evidence
pertains to specific instances of the complainant’s sexual activity. The judge must
determine whether the evidence has significant probative value not outweighed by
its prejudicial effects, taking into account the need to remove discriminatory biases
from the trial process and the need to protect the complainant’s dignity and privacy,
among other factors. This legislation seeks to balance the accused’s rights with those
of the complainant. It also endeavours to protect society’s interests in encouraging the
reporting of sexual assaults.

Section 276(1): Exclusion of Evidence

SECTION 276 OF THE CRIMINAL CODE creates a statutory rule of admissibility. The three
cumulative requirements to engage the exclusionary rule are offence, subject matter
and purpose.
The “offence” requirement is satisfied where the proceedings in which evidence is
tendered relates to a listed offence, including sexual assault, sexual interference and
invitation to sexual touching. The “subject-matter” requirement, as explained under
S 276(2), is satisfied when the presented evidence is that “the complainant has engaged
in sexual activity other than the sexual activity that forms the subject-matter of the
charge, whether with the accused or with any other person”. Finally, the purpose
of introducing the proposed evidence must be to support either of two prohibited
inferences grounded on the sexual nature of the activity:
(i) that the complainant is more likely to have consented to the conduct
charged; or
(ii) that the complainant is less worthy of belief.
Where the purpose underlying the introduction of the evidence of extrinsic sexual
activity is neither of the two above prohibited inferences, often referred to as the “twin
myths”, the exclusionary rule cannot be relied upon.

9
Section 276(2): Exception to the Exclusionary Rule
In order to qualify for the exception outlined under s 276(2), evidence of the
complainant’s extrinsic sexual activity must:
(i) be of specific instances of sexual activity8;
(ii) be relevant to an issue at trial; and
(iii) have significant probative value that is not substantially outweighed by
the danger of prejudice to the proper administration of justice.
In order to determine whether the evidence is admitted under this exception, the court
follows the procedure described in S 276.1 and S 276.2.

Sections 276.1 and 276.2: Procedural Requirements

According to the procedural requirements outlined in s 276.1, an accused may make an
application to the presiding judge for a hearing to determine the admissibility of otherwise
prohibited character evidence. The judge considers this application without the presence
of the jury or the public, and if satisfied, the judge may order such a hearing.
At the hearing the jury and the public are excluded, and the complainant is not a
compellable witness. The judge must provide reasons for the ruling.

Section 276(3): Factors in Determining Evidence Admissibility

In determining whether evidence is admissible, the legislation has outlined several
factors that the court should take into account, including:
(i) the interests of justice, including the right of the accused to make a full
answer and defence;
(ii) society’s interest in encouraging the reporting of sexual assault offences;
(iii) whether there is a reasonable prospect that the evidence will assist in
arriving at a just determination;
(iv) the need to remove from the fact-finding process any discriminatory belief or bias;
(v) the risk that the evidence may unduly arouse sentiments of prejudice,
sympathy or hostility in the jury;
(vi) the potential prejudice to the complainant’s personal dignity and right of privacy;
(vii) the right of the complainant and of every individual to personal security;
and
(viii) any other factor that the judge considers relevant.

8 In C. (A.R.), 2002 Carswell Ont 4921, the Ontario Superior Court of Justice held that where the accused does not seek
to adduce evidence of specific instances of sexual activity but merely that there was sexual activity generally during the
time period in question, the prohibition in s. 276(2) may not apply, and no application under s. 276.1 would need to be
brought. However, the accused would still have to satisfy the Court that the evidence is relevant to an issue at trial and
that its probative value exceeds any prejudicial effect.

10
CHARACTER EVIDENCE
The amended s 276 was upheld unanimously by the Supreme Court in R v. Darrach9 as
constitutional.
1. The Supreme Court found that the section does not violate an accused’s right to
defend the charges because it only prevents the use of evidence of past sexual
activity when it is offered to support one of the twin myths (as discussed in the
paragraph on Section 276 of the Criminal Code above.
2. The rape shield provisions do not compel an accused to testify against himself,
even though there is a procedural requirement under s 276.1 to present an
application to introduce evidence. The requirement that the accused present
an affidavit to the court does not equate to compelling him to be a witness or
reveal his defence because it is a basic rule of evidence that the party seeking to
introduce evidence must be prepared to satisfy the court that it is relevant and
admissible. Lastly, the rape shield provisions do not hinder the right to a fair trial
for the accused because the state still has the onus of proving all the elements of
a sexual offence beyond a reasonable doubt.
3. Regarding the introduction of character evidence, the Supreme Court recognized
that there are inherent “damages and disadvantages presented by the admission
of such evidence”10. Therefore, under S 276(2), evidence of sexual activity must be
significantly probative, substantially outweighing the danger of prejudice to the
administration of justice. This requirement involves a balancing of probative value
and prejudicial effect.
In more recent case law, the Ontario Court of Appeal wrote that the addition of
the terms “significant” as descriptive of the probative value (e.g. the capacity of the
evidence to establish fact) and “substantially” as the extent that significant probative
value must prevail over prejudice to a fair trial, appears to require a more nuanced or
qualitative assessment of the competing interests11.

FUTURE DEVELOPMENT
Canada’s current rape shield laws offer strong protection to the complainant, while
at the same time balancing the accused’s constitutional rights to a fair trial. Activists
groups such as the Women’s Legal Education and Action Fund, the Canadian
Association of Sexual Assault Centres, the Disabled Women’s Network Canada and the
National Action Committee on the Status of Women applauded the Supreme Court for
the 2000 decision upholding the rape shield legislation12. Since the 2000 decision there
have been no formal reports recommending further reform to the rape shield laws in
Canada.

9 R v Darrach, 2000 SCC 46 [Darrach]; followed in R. v. Solomon, 114 W.C.B. (2d) 463; R. v. Leslie, 2012 BCSC 683;
R. v. Bird, [2008] 8 W.W.R. 718.
10 Seaboyer, supra, at p. 634.
11 R v T (M), 2012 ONCA 511, at para 43.
12 Leaf News Release, Online: Women’s Legal Education and Action Fund

11
INDIA

BACKGROUND AND HISTORY

Under the INDIAN EVIDENCE ACT 1872, evidence could be given in any proceeding with
respect to the existence or non-existence of every fact in issue and any other fact which
was declared to be relevant under the law13.
The evidence regarding the character of the prosecutrix was often used in rape trials
especially when the question of consent was a relevant fact in the trial proceedings.
In order to establish the presence of consent or to overall discredit her testimony, the
accused often adduced evidence about the immoral character of the prosecutrix or
evidence regarding her past sexual history to show the presence of consent.
SECTION 146 (3) and S 155 (4) were the two provisions under the Indian Evidence Act 1872
which were used to lead evidence regarding the character of a rape victim and impeach
her credibility.
1. Under S 146, which deals with questions which may be put to a witness in
the course of cross examination, it is permissible to ask any question which
tends to “shake his credit, by injuring his character, although the answer
to such questions might tend directly or indirectly to criminate him, or
might expose or tend directly or indirectly to expose him to a penalty or
forfeiture”14.
2. SECTION 155 (4), prior to amendment in 2003, read as follows: “when a
man is prosecuted for rape or an attempt to ravish, it may be shown that
the prosecutrix was of generally immoral character”.
These provisions were used extensively by the accused to suggest that the act was
consensual and to demonstrate that the prosecutrix was a woman of loose morals and
unchaste and hence her version is to be discredited.
In 1980 the Law Commission of India in its 84th Report recommended amendments
to make evidence regarding the character and past sexual history of the prosecutrix
irrelevant in rape trials. The Criminal Law Amendment Act 2003 brought in some
changes acting on these recommendations.
1. The commission noted that there was absolutely no justification to
retain the provision at least with respect to past sexual relations with
other persons and stated that even a “harlot or a prostitute is raped,
her consent at the time of commission of the crime must be proved by
evidence aliunde”.

13 Section 5 of the Indian Evidence Act, 1872

14 Section 146(3) of the Indian Evidence Act, 1872

12
 2. The commission further noted that evidence regarding past sexual history
and character cannot be adduced in cases where consent is not in issue. It
stated that when consent is not in issue, evidence regarding the immoral
character of the victim cannot be adduced to discredit her testimony. It
noted that “it is wrong to assume that a female witness is less likely to tell
the truth when she has a generally immoral character”.
In 2012, after the brutal gang rape in New Delhi, known as the ‘Nirbhaya Rape’,
world-wide attention was drawn to the issue of safety of women in India and the
need for law reform by various women’s groups and citizen’s movements across the
country. The national and regional media also played a vital role in raising important
questions regarding crimes against women. It was in this context that the government
of India set up a commission to review the criminal laws and suggest amendments.
The committee sought inputs from various experts, and stakeholder groups across the
country undertook a detailed review of the laws in place and recommended further
amendments which were given effect by the CRIMINAL LAW AMENDMENT ACT 2013.

CASE LAW
1. In the case of State of U.P. v Pappu Yunus and Anr15, the court said that
“even assuming that the victim was previously accustomed sexual
intercourse, that is not a determinative question. On the contrary, the
question which was required to be adjudicated was did the accused
commit rape on the victim on the occasion complained of. Even if it is
hypothetically accepted that the victim had lost her virginity earlier, it
did not and cannot in law give license to any person to rape her. It is the
accused who was on trial and not the victim. Even if the victim in a given
case has been promiscuous in her sexual behaviour earlier, she has a right
to refuse to submit herself to sexual intercourse to anyone and everyone
because she is not a vulnerable object or prey for being sexually assaulted
by anyone and everyone. It is well settled that a prosecutrix complaining
of having been a victim of the offence of rape is not an accomplice after
the crime. There is no rule of law that her testimony cannot be acted
without corroboration in material particulars. She stands at a higher
pedestal than an injured witness. In the latter case, there is injury on the
physical form, while in the former it is physical as well as psychological
and emotional.”
2. In the case of Narender Kumar v State16 the court dealt with a case where
the allegation was that the victim of rape herself was an unchaste woman,
and a woman of easy virtue. The court held that so far as the prosecutrix
is concerned, mere statement of prosecutrix herself is enough to record a
conviction, when her evidence is read in its totality and found to be worth
reliance. The Court held that “In view of the provisions of sections 53

15 AIR 2005 SC 1248

16 NCT of Delhi, MANU/SC/0481/2012

13
 and 54 of the Evidence Act 1872, unless the character of the prosecutrix
itself is in issue, her character is not a relevant factor to be taken into
consideration at all.”

CURRENTLY
SECTION 53A OF THE INDIAN EVIDENCE ACT 1872 was inserted by the CRIMINAL LAW
AMENDMENT ACT 2013. It reads as follows:

In a prosecution for an offence under SECTION 354, SECTION 354A , SECTION

354B , SECTION 354C , SECTION 354D, SECTION 376 , SECTION 376A , SECTION 376B ,
SECTION 376C , SECTION 376D or SECTION 376E of the INDIAN PENAL CODE or
for attempt to commit any such offence, where the question of consent is in
issue, evidence of the character of the victim or of such person’s previous sexual
experience with any person shall not be relevant on the issue of such consent or
the quality of consent.
The Criminal Law Amendment Act 2013 also substituted the following as the proviso to
section 146 which reads:
Provided that in a prosecution for an offence under SECTION 376, SECTION 376A ,
SECTION 376B , SECTION 376C , SECTION 376D or SECTION 376E or an attempt to
commit any such offence, where the question of consent is in issue, it shall not be
permissible to adduce any evidence or to put questions in the cross examination
of the victim as to the general immoral character or previous sexual experience, of
such victim with any person for proving such consent or quality of consent.

CHARACTER EVIDENCE
In view of all of the above, character evidence has been made irrelevant in cases of
sexual assault in India and questions regarding the moral character of the victim or
her previous sexual experience are impermissible even during the course of cross-
examination.
Going forward, it is left to the judges presiding over rape trials to ensure that questions
relating to the character of the victim, however remote, are not allowed to be posed
during the course of the trial and evaluate the facts and circumstances and ensure that
sentencing is also not influenced by the past sexual history and character of the victim.

14
PAKISTAN

BACKGROUND AND HISTORY

Honour killings, burnings, and rapes in Pakistan indicate inadequate legal protection for
women.
In 1979 Pakistan passed into law the HUDOOD ORDINANCE, which made all forms of
extra-marital sex, including rape, a crime against the state. During the time the Hudood
Ordinance remained on the statute books, Human Rights Watch documented extensive
sexual abuse against female bonded labourers.
The OFFENCE OF ZINA (ENFORCEMENT OF HUDOOD) ORDINANCE 1979 described the
offences of Zina (fornication and adultery) and Zina bil jabbar (rape). They were
defined separately in the ordinance prior to the WOMEN PROTECTION (CRIMINAL LAWS
AMENDMENT) ACT 2006.

No case could be proven under the ordinance due to its stringent evidentiary stipulation
of four independent male witnesses who were present at the time of the offence.
Punishments were awarded under the TAZIR PROVISION of the Hudood Ordinance.
Prior to QANUN-E-SHAHADAT ORDER 1984 the law regarding evidence enforced was the
EVIDENCE ACT 1872. However in 1984 the 1872 act was repealed.

CURRENTLY
The 2006 ACT has now totally deleted Zina bil jabbar from the Hudood Ordinance and
inserted SECTIONS 375 and 376 for rape and punishment respectively in the PAKISTAN
PENAL CODE (PPC) to replace it.

Primary punishment is defined in Section 376 of PPC, punishable with death or

imprisonment for a term which shall not be less than ten years or more than twenty-five
years, and shall also be liable to a fine.
When rape is committed by two or more persons each person will be punished with
death or imprisonment for life.

CHARACTER EVIDENCE
Questions relating to character or credit are dealt with in terms of the following sections
of the QANUN-E-SHAHADAT ORDER 1984:

15
 67. In criminal proceedings the fact that the person accused is of good
character is relevant.
68. In criminal proceedings the fact that the accused person has a bad
character is irrelevant, unless evidence has been given that he has a good
character, in which case it becomes relevant (the evidence is relevant in
reply).

Procedural law related to evidence – Qanoon e Shahadat Ordinance, 1984

SEC 151 (4) allows for impeaching the victim’s character in the context of rape

REFORM PROCESS
—— Reform recommended by Shariat Court and Law Commission
—— No reform undertaken so far

16
SINGAPORE

BACKGROUND AND HISTORY

Singapore does not yet have a rape shield law.
However, in a step forward the Singapore Ministry of Laws repealed the section of
the Evidence Act that allowed the credibility of a victim to be impeached by showing
“immoral character.”

CURRENTLY
SECTION 157(D) OF THE EVIDENCE ACT was repealed on 1 August 2012.

The law stated that:

“The credit of a witness may be impeached in the following ways by the
adverse party or, with the consent of the court, by the party who calls him… (d)
when a man is prosecuted for rape or an attempt to ravish, it may be shown
that the prosecutrix was of generally immoral character.”
The Ministry of Law agreed to repeal this section because it was “out of date”.

CHARACTER EVIDENCE
Although Section 157(d) of the Evidence Act was repealed, a victim’s sexual history is
still admissible in certain circumstances.
1. For example, evidence of prior consensual sexual activities between
the two parties could be used to demonstrate the victim’s state of mind
toward the accused.
2. Importantly, the admissibility of a sexual assault victim’s past sexual
history depends on the relevance of such evidence to the issues in the
proceedings and need not rest on an express provision to this effect.
3. This gives the court significant latitude to determine “relevance”.

17
SOUTH AFRICA

BACKGROUND AND HISTORY

CHARACTER EVIDENCE RULES SPECIFIC TO RAPE

TRIALS IN SOUTH AFRICA PRIOR TO 1989
Prior to 1989, sECTION 227 OF THE CRIMINAL PROCEDURE ACT provided that in sexual
offences cases, the admissibility of character evidence of any woman was to be
determined by the application of the common law. The common law position was that
an accused person in a rape trial could adduce evidence of the complainant’s reputation
for lack of chastity.
The defence could question a complainant about her previous sexual history with
the accused. Although the defence was prohibited from leading evidence on the
complainant’s sexual relations with other men, such evidence could be elicited in cross-
examination of the complainant.

REFORM IN SOUTH AFRICA

The South African Law Commission Report on Women and Sexual Offences (1985)
raised several problems with the common law position. Evidence of this nature was
inadmissible in other cases, and there were no grounds for admitting it in rape or
indecent assault cases. The possibility of cross-examination may deter victims from
reporting sexual offences and be traumatic for victims.
As a result, section 227 of the Criminal Procedure Act was amended to require the
accused to apply to the court for leave to adduce evidence of prior sexual history, or
to question the complainant on her prior sexual history. Leave could only be granted
if the accused could satisfy the court of the relevance of the evidence. Despite the
amendment, judges still had unfettered discretion to determine the admissibility of
evidence.

CURRENTLY
In 2007, SECTION 227 was amended. The section now reads as follows:
“227 Evidence of character and previous sexual experience

1. Evidence as to the character of an accused or as to the character of

any person against or in connection with whom a sexual offence

18
 as contemplated in the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007, is alleged to have been committed,
shall, subject to the provisions of subsection (2), be admissible
or inadmissible if such evidence would have been admissible or
inadmissible on the 30th day of May, 1961.
2. No evidence as to any previous sexual experience or conduct of any
person against or in connection with whom a sexual offence is alleged
to have been committed, other than evidence relating to sexual
experience or conduct in respect of the offence which is being tried,
shall be adduced, and no evidence or question in cross examination
regarding such sexual experience or conduct, shall be put to such
person, the accused or any other witness at the proceedings pending
before the court unless-
a. the court has, on application by any party to the proceedings,
granted leave to adduce such evidence or to put such question; or
b. such evidence has been introduced by the prosecution.
3. Before an application for leave contemplated in subsection (2) (a) is
heard, the court may direct that any person, including the complainant,
whose presence is not necessary may not be present at the proceedings.
4. The court shall, subject to subsection (6), grant the application referred
to in subsection (2) (a) only if satisfied that such evidence or questioning
is relevant to the proceedings pending before the court.
5. In determining whether evidence or questioning as contemplated in
this section is relevant to the proceedings pending before the court, the
court shall take into account whether such evidence or questioning-
a. is in the interests of justice, with due regard to the accused’s right to
a fair trial;
b. is in the interests of society in encouraging the reporting of sexual
offences;
c. relates to a specific instance of sexual activity relevant to a fact in
issue;
d. is likely to rebut evidence previously adduced by the prosecution;
e. is fundamental to the accused’s defence;
f. is not substantially outweighed by its potential prejudice to the
complainant’s personal dignity and right to privacy; or
g. is likely to explain the presence of semen or the source of pregnancy
or disease or any injury to the complainant, where it is relevant to a
fact in issue.
6. The court shall not grant an application referred to in subsection (2) (a)
if, in its opinion, such evidence or questioning is sought to be adduced
to support an inference that by reason of the sexual nature of the
complainant’s experience or conduct, the complainant-

19
 a. is more likely to have consented to the offence being tried; or
b. is less worthy of belief.
7. The court shall provide reasons for granting or refusing an application
in terms of subsection (2) (a), which reasons shall be entered in the
record of the proceedings.”

CHARACTER EVIDENCE
The section now provides that evidence of prior sexual history, other than evidence
relating to sexual conduct in respect of the offence which is being tried, may not be
led or raised in cross-examination except with leave of the court, or unless prior sexual
history evidence has been introduced by the prosecution.
Section 227 also provides factors which a court must consider in such an application.
Despite this, a strong measure of judicial discretion is maintained. This discretion allows
the court to balance the rights of the complainant with the accused’s right to a fair trial,
and to admit the evidence in the event that it is relevant to the accused’s defence.
The importance of this discretion was illustrated in the case of S v Zuma17, where the
court allowed an application in terms of section 227. The court stated that:
“In my judgment the purpose of the cross-examination and the evidence the
defence wanted to lead concerning the complainant’s behaviour in the past
was not to show that she misbehaved with other men. In fact it was aimed
at showing misconduct in the sense of falsely accusing men in the past. The
cross-examination and evidence are relevant to the issue of consent in the
present matter, the question of motive and indeed credibility as well. It was not
aimed at showing that the complainant was a woman of questionable morals.
It was aimed at the investigation of the real issues in this matter and was
fundamental to the accused’s defence.18”

17 2006 (2) SACR 191 (W)

18 204G-H, 2006 (2) SACR 191 (W)

20
UNITED KINGDOM

BACKGROUND AND HISTORY

In general, evidence is admissible in English criminal cases where it is relevant to the
question of whether a defendant is guilty or innocent. However, problems arose in rape
cases with irrelevant evidence as to the complainant’s past sexual history being used to
discredit the complainant, influence findings on consent and subject the complainant
to humiliation and distress. Legislation limiting the use of such evidence was therefore
introduced.

REFORM PROCESS
In 1975, the HEILBRON REPORT 19 expressed concern “about the extent to which, in a rape
trial, the personal history and character of a rape victim can be introduced”. Following
recommendations made in that report, legislation20 was introduced which forbade the
defence from adducing evidence or asking any question in cross-examination about any
of the complainant’s sexual experiences other than with the defendant unless the judge
gave it leave to do so. Any application for such leave had to be made in the absence of
the jury and the judge could only give leave if satisfied that to refuse it would be unfair
to that defendant21. However, this discretion was broadly interpreted by the courts and
as a result the statute did not achieve its object of preventing the illegitimate use of
prior sexual experience in rape trials22.
The House of Lords more recently have expressed the view that “the structure of this
legislation was flawed. In respect of sexual experience between a complainant and
other men, which can only in the rarest cases have any relevance, it created too broad
an inclusionary discretion. Moreover it left wholly unregulated questioning or evidence
about previous sexual experience between the complainant and the defendant even if
remote in time and context. There was a serious mischief to be corrected”.

19 Report of the Advisory Group on the Law of Rape to the Secretary of State for the Home Department, Cmnd. 6352, 1975.
20 The Sexual Offences (Amendment) Act 1976, section 2.
21 This legislation was introduced “to avoid the assumption too often made in the past that a woman who has had sex with
one man is more likely to consent to sex with other men and that the evidence of a promiscuous woman is less credible”,
per Lord Slynn in R v. A [2001] UKHL 25, paragraph 3. Lord Steyn in the same case said at paragraph 27 “[s]uch
generalised, stereotyped and unfounded prejudices ought to have no place in our legal system. But even in the very
recent past such defensive strategies were habitually employed. It resulted in an absurdly low conviction rate in rape
cases. It also inflicted unacceptable humiliation on complainants…”.
22 Lord Hope in R v. A, at paragraph 57 explained “statistics showed that the object of that measure, which was to protect
complainants against unnecessary evidence and questions about their previous sexual experience, was not being
achieved. They raised doubts as to whether it was satisfactory, in this very difficult and sensitive area, to leave the
decision whether leave should be given entirely to the trial judge.”

21
In 1998 a Working Group set up by the Home Office published a Report which concluded
that there was “overwhelming evidence that the present practice in the courts is
unsatisfactory and that the existing law is not achieving its purpose” and proposed that
the law be changed. This Report led to the legislation which is currently in force.

CURRENTLY

LEGISLATION
In 1999 the YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT (“YJCEA”) was introduced23. It
established the prima facie position that, except with the leave of the court, no evidence
may be adduced and no evidence asked in cross-examination by or on behalf of the
accused at trial about any sexual behaviour24 of the complainant.
In order for the court to grant such leave, it must be satisfied that either SECTION 41(3)
or 41(5) applies (see paragraphs on Section 41(3) and Section 41(5) below) and that
refusing leave “might have the result of rendering unsafe a conclusion of the jury or…
the court on any relevant issue in the case”.
SECTION 41(3) applies if the evidence or question relates to a relevant issue in the case
and either:
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to
which it relates is alleged to have taken place at or about the same time
as the event which is the subject matter of the charge against the accused;
or
(c) it is an issue of consent and the sexual behaviour of the complainant to
which the evidence or question relates is alleged to have been so similar:
i. to any sexual behaviour of the complainant which (according to the
relevant evidence) took place as part of the event which is the subject
matter of the charge against the accused, or
ii. to any other sexual behaviour of the complainant which (according to
such evidence) took place at or about the same time as that event,
iii. that the similarity cannot reasonably be explained as a coincidence.
SECTION 41(5) applies if the evidence or question:

(a) relates to any evidence adduced by the prosecution about any sexual
behaviour of the complainant; and

23 See in particular sections 41–43 of the YJCEA 1999.

24 For the purposes of this provision, the term “sexual behaviour” is defined in section 42(1)(c) of the YJCEA.

22
 (b) in the opinion of the court, would go no further than is necessary to enable
the evidence adduced by the prosecution to be rebutted or explained by
or on behalf of the accused.
For all of these exceptions to the prima facie rule, the evidence must relate to specific
instances of sexual behaviour. This means that evidence as to sexual reputation is
unlikely to be admissible.
Applications for leave are heard in private and in the absence of the complainant. The
judge must state in open court, but in the absence of the jury, the reasons for giving or
refusing leave and the extent to which evidence may be adduced or questions asked.

PROCEDURAL RULES APPLICABLE TO APPLICATIONS FOR LEAVE

An application for leave to adduce evidence of or ask evidence in cross-examination
relating to a complainant’s sexual behaviour must be made in writing within 28 days of
the prosecutor complying or purporting to comply with its duty of disclosure.
The application must give particulars of the evidence the defence wants to adduce and
the questions it wants to ask, and identify:
(a) the issue to which the complainant’s sexual behaviour is relevant;
(b) the applicable exception in the YJCEA (i.e. under SECTION 41(3) OR 41(5));
and
(c) the name and date of birth of any witness whose evidence of the
complainant’s sexual behaviour the defendant wants to adduce.

CASE LAW
The House of Lords case R v. A25 provided guidance on the application of SECTION 41
OF THE YJCEA . The issue was whether a sexual relationship between a defendant and
complainant could be relevant to the issue of consent so as to render its exclusion under
section 41 of the YJCEA a contravention of the defendant’s right to a fair trial.
The House of Lords held that on ordinary principles of statutory interpretation section
41 of the YJCEA was incompatible with the right to a fair trial26, in that it made evidence
which may be relevant to consent inadmissible (in this case, evidence of a prior
consensual relationship between the complainant and the accused) as such evidence
did not fall within the limited exceptions in sections 41(3) or (5). As such, the HUMAN
RIGHTS ACT 1998 required section 41 of the YJCEA to be read as subject to an implied
provision that evidence or questioning which relates to a relevant issue in the case
and which is required to ensure a fair trial by virtue of ARTICLE 6 OF THE EUROPEAN
CONVENTION ON HUMAN RIGHTS should not be inadmissible.

25 [2001] UKHL 25.

26 Article 6 of the European Convention on Human Rights, as set out at Schedule 1 to the Human Rights Act 1998.

23
This will be a matter for the trial judge’s determination and Lord Steyn explained the
test as follows: “due regard always being paid to the importance of seeking to protect
the complainant from indignity and from humiliating questions, the test of admissibility
is whether the evidence (and questioning in relation to it) is nevertheless so relevant
to the issue of consent that to exclude it would endanger the fairness of the trial under
article 6 of the Convention. If this test is satisfied the evidence should not be excluded.”27
In R v White28, a case in which the defence sought to adduce evidence that the
complainant was a prostitute, the court distinguished R v A on the basis that it
concerned evidence relating to the complainant’s sexual history with the accused
(rather than with third parties). It held that “R v A is not authority for any wider reading
of SECTION 41 by force of SECTION 3 OF THE HUMAN RIGHTS ACT in a case where sexual
acts of the complainant with men other than the appellant are sought to be adduced
than is justified by application of conventional canons of construction”, and refused to
grant leave to admit this evidence.

CHARACTER EVIDENCE AND FUTURE DEVELOPMENT

R v A prompted considerable debate and, as a result, the Home Office commissioned a
report evaluating the limitation on the use of sexual behaviour evidence relating to the
complainant in rape trials. Its findings included recommendations that:
1. There should be a clear statement in the legislation that sexual
behaviour evidence should not be admitted other than in the exceptional
circumstances set out in the legislation.
2. It should be emphasised that it is not generally reasonable to form a belief
on consent based on past sexual history.
3. There should be a new exception to the prima facie rule allowing for
evidence of previous or subsequent sexual behaviour with the defendant
to be adduced, which could have a time limit.
4. It should be made clear that “sexual behaviour” and “sexual experience”
include implied as well as express behaviour.
5. Court rules should be followed, in particular the requirement that all
applications for permission to adduce sexual history evidence be made in
writing pre-trial. Applications made at trial should be accepted only if the
defence could show that they were unaware of the information on which
the application is based until trial. Applications made at trial should also
have to be made in writing, and the prosecution should be given time to
consider the application and an adjournment allowed for this purpose if

27 Para 46, [2001] UKHL 25.

28 [2004] EWCA Crim 946.

24
 necessary. Judges should be required to give their decisions and reasons
for them in writing to both sides.
6. Consideration should be given to permitting complainants to be present
at hearings of applications, if they wish. This would ensure that allegations
about sexual behaviour can be tested and that judges can make informed
rulings. It would also mean that complainants would know what was in
store in any ensuing trial.
7. There should be a prosecution right of appeal against decisions to permit
the introduction of sexual behaviour evidence.

25
 UNITED STATES OF AMERICA

BACKGROUND
Various different states have differing rape shield laws.

CURRENTLY
The differing laws can be categorised into four broad categories:

(a) Legislated Exception (evidence is admissible if they fit within certain legislated exceptions)
States with legislated exceptions generally prohibit the admission of reputation or
opinion evidence concerning the past sexual behaviour of an alleged victim of the
sexual offense, unless it falls within an exception.
Common exceptions include past sexual behaviour with persons other than the
accused, offered by the accused upon the issue of whether the accused was or was not,
with respect to the alleged victim, the source of semen, pregnancy or injury, as well as
evidence of past sexual behaviour with the accused on the issue of consent.
Many states provide that a court shall not admit such evidence unless it determines at a
hearing that the evidence is relevant and the probative value of the evidence outweighs
the danger of unfair prejudice. While this is the same standard a court would use in the
judicial discretion category of rape shield statutes, the benefit of legislated exceptions
is that they limit the discretion of the trial court and provide clear guidelines as to what
evidence is admissible and not admissible during trial.
DATE ENACTED: the first jurisdiction to enact a Legislated Exception style of rape shield
law was Michigan in 1974. Since then, 38 other jurisdictions have also enacted laws
including similar provisions.
Legislative exceptions may bar evidence in a variety of circumstances, for example:
1. In State v. Herrera29, even when a prosecutor opened the door to evidence
of victim’s prior sexual history, evidence that victim had allegedly engaged
in a prior sexual relationship was not admissible under rape-shield law to
impeach victim; the evidence was not relevant and material to a fact in
issue in the case.

29 307 P.3d 103 (Ariz. Ct. App. 2013)

26
2. In State v Peite30 evidence that the victim consented to sexual acts with
men that she met at bars was not relevant to whether she consented to
sexual acts with defendant, whom she met at a bar;
3. In Smelcher v. State31, evidence that concerned the past sexual behaviour of
the victim could only be introduced into evidence when the court finds the
past sexual behaviour directly involved the participation of the accused.
4. In People v LaPorte32 the provision of statute which bars evidence of a rape
complainant’s reputation for un-chastity and past sexual conduct does
not unconstitutionally deny the defendant the right to effectively confront
witnesses.

EXCEPTION JURISDICTIONS IMPLEMENTING THE EXCEPTION

Sexual behavior involving the accused, when consent Alabama, Arizona, Colorado, Connecticut, Georgia,
is at issue Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky,
Louisiana, Maryland, Massachusetts, Michigan,
Minnesota, Missouri, Montana, Nebraska, New
Jersey, New York, North Carolina, North Dakota,
Ohio, Pennsylvania, South Carolina, South Dakota,
Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin,
Wyoming

Evidence of specific instances of sexual activity Arizona, Colorado, Connecticut, Florida, Hawaii,
showing the source or origin of semen Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine,
Maryland, Michigan, Minnesota, Missouri, Montana,
Nebraska, New Jersey, New Mexico, North Dakota,
Ohio, Oklahoma, South Carolina, South Dakota,
Tennessee, Utah, Vermont, Virginia, Wisconsin

Evidence of specific instances of sexual activity Arizona, Colorado, Connecticut, Florida, Michigan,
showing the source or origin of pregnancy Minnesota, Missouri, Montana, New Jersey, New
Mexico, Ohio, Oklahoma, South Carolina, Vermont,
Virginia, Wisconsin

Evidence of specific instances of sexual activity Arizona, Colorado, Connecticut, Florida, Hawaii,
showing the source or origin of disease, injury or Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine,
trauma Maryland, Massachusetts, Michigan, Minnesota,
Missouri, Nebraska, New Jersey, New Mexico,
North Dakota, Ohio, Oklahoma, South Carolina,
South Dakota, Tennessee, Utah, Vermont, Virginia,
Wisconsin

Evidence that supports a claim that the victim has a Arizona, Maryland, Oregon, Texas, Virginia,
motive in accusing the defendant of the crime

Evidence offered for the purpose of impeachment Arizona, Connecticut, Maryland, New Mexico,
when the prosecutor puts the victim’s prior sexual Tennessee, Virginia
conduct in issue

Evidence of false allegations of sexual misconduct Arizona, Idaho, Minnesota, Oklahoma, Vermont,
made by the victim against others Wisconsin

Evidence that tends to establish a pattern of conduct Florida

or behavior on the part of the victim which is so similar
to the conduct or behavior in the case that it is relevant
to the issue of consent

30 839 P.2d 1223 (Idaho 1992)

31 520 So. 2d 229 (Ala. Crim. App.1987)
32 303 N.W.2d 222 (Mich. App. 1981)

27
 Evidence of sexual behavior with parties other than the Idaho
accused which occurred at the time of the event giving
rise to the sex crime charged

Any evidence directly pertaining to the offense charged Kentucky

Evidence of immediate surrounding circumstances of Missouri

the alleged crime

Evidence relating to the previous chastity of the Missouri

complaining witness in cases, where, by statute,
previously chaste character is required to be proved by
the prosecution

Evidence that proves or tends to prove that the victim New Mexico
has been convicted of an prostitution within three
years prior to the sex offense which is the subject of
the prosecution

Evidence of specific instances of sexual behavior North Carolina

offered for the purpose of showing that the act or acts
charged were not committed by the defendant

Similar sexual acts in the presence of the accused Oklahoma

with persons other than the accused which occurs at
the time of the event giving rise to the sexual offense
alleged

Evidence necessary to rebut or explain scientific or Oregon, Tennessee, Texas

medical evidence offered by the state

Evidence of specific instances of sexual activity which South Carolina

would constitute adultery and would be admissible
under rules of evidence to impeach the credibility of
the witness may not be excluded

Evidence of a pattern of sexual behavior so distinctive North Carolina, Tennessee

and so closely resembling the defendant’s version
of the alleged encounter with the complainant as to
tend to prove that such complainant consented to the
act or acts charged or behaved in such a manner as
to lead the defendant reasonably to believe that the
complainant consented

Evidence that the witness has been convicted of a Texas

felony or a crime involving moral turpitude

Evidence of sexual behavior offered as the basis of North Carolina

expert psychological or psychiatric opinion that the
complainant fantasized or invented the act or acts
charged

(b) Constitutional Catch-All (similar to legislated exceptions, but admissible if the U.S.
Constitution requires. This is the federal law).
States with constitutional catch-all provisions provide, as an additional legislative
exception, the admissibility of evidence required by the federal and applicable state
constitutions.

28
 Other states have recognized constitutional limitations on rape shield statutes,
notwithstanding the absence of such a provision.
The exception does not equip courts with concrete standards for implementation.
Because the constitutional exception is both ill-defined and arguably superfluous, it is
not recommended.
DATE ENACTED: the first jurisdiction to enact a Constitutional Catch-All style of rape
shield law was Connecticut in 1982. Since then, thirteen other jurisdictions have
also enacted laws including similar provisions: Hawaii, Idaho, Illinois, Indiana, Iowa,
Nebraska, New Hampshire, North Dakota, Oregon, South Dakota, Tennessee, Texas,
and Utah.
Courts have recognized that the rape shield law must yield to the defendant’s
constitutional rights in certain factual circumstances. For example in State v Crespo33,
the court said that when the trial court excludes, under the rape shield statute, defence
evidence that provides the defendant with a basis for cross-examination of the state’s
witnesses, despite a sufficient offer of proof, such exclusion may give rise to a claim of
denial of the constitutional rights to confrontation and to present a defence; in State
v Calbero34 the court said that where the sexual assault complainant allegedly made
statements concerning her past sexual experience to the defendant in the course of
the encounter between them which gave rise to charges against the defendant, the
defendant had a constitutional right to testify as to what the complainant told him
notwithstanding the rape shield rule, insofar as the complainant’s alleged statements
were relevant to issue of consent.
Note that a state may find that the rape shield statute must yield to constitutional law,
notwithstanding the absence of such a provision. See Lewis v State35 in this regard.

(c) Judicial Discretion (little to no guidance in the statute; court applies a standard
relevance test and weighs probative value against the risk of prejudice).
States with rape shield laws with a pure judicial discretion approach have no legislated
exceptions. They simply grant to judges the broad discretion to admit or bar evidence of
a woman’s sexual history. Some jurisdictions provide further guidance to courts in the
form of a few enumerated exceptions.
The states with rape shield laws falling under the pure “judicial discretion” approach
lack legislated exceptions for admissibility of evidence in rape cases. Without any explicit
exceptions, in these states it is up to the court to use its discretion in deciding whether to
admit or block evidence of a rape victim’s sexual history. These determinations are made
in hearings either in-camera or in-chambers, and not before the jury or any spectators.

33 35 A.3d 243 (Conn. 2012)

34 785 P.2d 157 (Haw. 1989)
35 591 So. 2d 922 (Fla. 1991)

29
Though these statutes provide some protection of the victim in that the hearing is
before the court only, these are not ideal formulations of “rape shield” laws because
they generally equate to applying ordinary evidentiary standards of probative value
and risk of prejudice. That is, the court makes a determination of relevance and decides
whether the probative value of the proposed evidence outweighs the risk of prejudice.
DATE ENACTED: the first jurisdiction to enact a Judicial Discretion style of rape shield law
was South Dakota in 1979. Since then, eleven other jurisdictions have also enacted laws
including similar provisions.

PROTECTIONS AND KEY EXCEPTIONS JURISDICTIONS

GENERAL JUDICIAL DISCRETION TO ADMIT OR PRECLUDE EVIDENCE RELATED Alaska, Arkansas, Kansas, New
TO SEXUAL HISTORY OF THE VICTIM Mexico, Rhode Island, South
Dakota, Wyoming
——Court conducts an in-camera hearing to determine admissibility
——Applies the general evidentiary standard of weighing the probative value of
the evidence against whether it would cause prejudice
——If evidence is admitted, Court may limit the type of questions permitted to be
asked of the victim (true in most of these jurisdictions)

SPECIAL NOTE ON ALASKA

——Calls for the evidence not to be an “unwarranted invasion of the privacy of
the complaining witness”
——Presumes that sexual history evidence more than one year prior to the
offense is inadmissible without a persuasive showing otherwise

SPECIAL NOTE ON KANSAS

Merely calls for a determination that the evidence is “relevant and is not otherwise
inadmissible as evidence”

SPECIAL NOTE ON RHODE ISLAND

Only requires the Court to determine admissibility of evidence that the victim has
engaged in sexual activities with other persons

SPECIAL NOTE ON WYOMING

The statute “does not limit the introduction of evidence as to prior sexual conduct of
the victim with the actor”

Judicial discretion to admit or preclude evidence related to sexual history of the Colorado, Connecticut,
victim, provided the evidence fits within certain broad exceptions, such as the Massachusetts, South Carolina
following:

——Sexual conduct with the defendant (e.g. Colorado, Massachusetts, South

Carolina)
——Whether defendant was the source of semen, pregnancy, or disease (e.g.
Colorado, Connecticut, Massachusetts, South Carolina)
The court generally holds an in-camera hearing to determine admissibility of evidence
fitting in those exceptions based on the probative value / prejudice standard.
SPECIAL NOTE ON SOUTH CAROLINA
Evidence of adultery to impeach a victim’s credibility cannot be excluded if it is
admissible under the standard rules of evidence

JUDICIAL DISCRETION TO ADMIT OR PRECLUDE EVIDENCE OF HOW THE VICTIM New Jersey
WAS DRESSED, IN THE INTERESTS OF JUSTICE (no mention in the statute of what
purpose the evidence would be for)

30
 In Massachusetts, the Massachusetts Supreme Court has elaborated on the reason for
the Massachusetts rape shield law to consider the admissibility of evidence related to a
victim’s sexual conduct with the defendant, but not evidence related to a victim’s sexual
conduct with other people. See Commonwealth v. Harris36, (noting that “such evidence
has little probative value on the issue of consent”). Precluding evidence of a victim’s
sexual history involving people other than the defendant is consistent with the concept
that a “victim’s consent to intercourse with one man does not imply her consent in the
case of another.”37
The Massachusetts Supreme Court further explained the importance of the judicial
discretion model, highlighting the “important policies underlying the rape-shield
statute.” Id. at 727. One key risk for the judge to consider is “the potential that the jury
may misuse the [evidence of a prior] conviction of a sexual offense as indicative of
the complaining witness’s consent, and the risk that the complaining witness may be
subjected to needless humiliation.”38

(d) Evidentiary Purpose (the guidance varies based on the purpose for which the evidence
is being offered).
States determine the admissibility of a woman’s sexual history based on the purpose for
which the evidence is offered at trial. The primary focus is on whether evidence can be
admitted (1) to show consent of the victim or (2) to question the victim’s credibility. A few
jurisdictions include provisions that govern other purposes.
A number of jurisdictions include other purposes in their statutes, including three
that refer to potential admissibility for the purpose of proving the source of semen,
pregnancy, or disease.
Some of these purpose-oriented exceptions are very similar to the exceptions explicitly
enumerated in many of the Legislated Exception jurisdictions listed above.
Generally, the court makes a determination of the admissibility in a hearing outside of
the presence of the jury, in accordance with the usual relevance, probative value, and
prejudice standards for evidence.
DATE ENACTED: the first jurisdiction to enact an Evidentiary Purpose style of rape shield
law was Delaware in 1979. Since then, ten other jurisdictions have also enacted laws
including similar provisions.

36 443 Mass. 714, 722-23 (2005)

37 Id. (citation omitted).
38 Id. at 727-28.

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PROTECTIONS AND KEY EXCEPTIONS JURISDICTIONS

SEXUAL HISTORY EVIDENCE IS NOT ADMISSIBLE to prove that the victim California, Delaware, Georgia,
consented, unless it relates to the victim’s sexual conduct with the defendant New Jersey, Oklahoma,
Washington, West Virginia
SPECIAL NOTE ON CALIFORNIA
Evidence of the victim’s manner of dress is not admissible to prove consent unless the
court, outside the hearing of the jury, determines it to be relevant and in the interests
of justice
SPECIAL NOTE ON GEORGIA
Evidence of sexual history between the victim and defendant that supports an
inference the defendant could have reasonably believed the victim consented may be
admissible
SPECIAL NOTE ON WASHINGTON
Sexual history evidence may be admissible when the defendant and victim have had a
sexual history and the past behavior is material to the issue

SEXUAL HISTORY EVIDENCE MAY BE ADMISSIBLE for the purpose of determining Nevada, Puerto Rico
that the victim consented, without an explicit limitation to sexual history between the
victim and the defendant

SUBCATEGORY OF CONSENT: evidence of the victim’s mental incapacity is Florida

admissible to prove that the consent was not intelligent, knowing, or voluntary

SEXUAL HISTORY EVIDENCE MAY BE ADMISSIBLE for the purpose of proving the New Jersey, Florida, Oklahoma
source of semen, pregnancy, or disease

SEXUAL HISTORY EVIDENCE MAY BE ADMISSIBLE to attack credibility of the California, Delaware,
witness Mississippi, (Nevada), Puerto
Rico, West Virginia
SPECIAL NOTE ON NEVADA
Only if the prosecutor has presented evidence or the victim has testified regarding
prior sexual conduct, the defendant can use such evidence to challenge the victim’s
credibility, limited to rebuttal of the evidence so provided
SPECIAL NOTE ON WEST VIRGINIA
evidence of instances of the victim’s sexual conduct with people other than the
defendant, reputation evidence, and opinion evidence is admissible only if the victim
makes the previous sexual conduct an issue by introducing the evidence

SEXUAL HISTORY EVIDENCE IS NOT ADMISSIBLE to attack credibility Washington

ASSORTED PROHIBITIONS: Florida

——Evidence of the victim’s manner of dress is not admissible to prove that it

incited the charged offense
——Evidence of the use or requested use of a prophylactic is irrelevant to consent
or occurrence of the charged offense

REGARDLESS OF PURPOSE, REPUTATION OR OPINION EVIDENCE IS Oklahoma

INADMISSIBLE

SEXUAL HISTORY EVIDENCE MAY BE ADMISSIBLE to: Oklahoma

——prove false allegations of sexual offenses

——prove similar acts that occurred with other people in the presence of the
defendant at the time of the charged offense

IF SEXUAL HISTORY HAS ALREADY BEEN PRESENTED BY THE PROSECUTION, the Washington
defendant may cross-examine the victim on that evidence

For cases in which LACK OF CONSENT IS BASED ON THE VICTIM BEING BELOW A West Virginia
CRITICAL AGE and therefore lacking capacity to consent, sexual history evidence of
the victim is inadmissible

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CHARACTER EVIDENCE
Precluding evidence of a victim’s sexual history involving people other than the
defendant is consistent with the concept that a “victim’s consent to intercourse with one
man does not imply her consent in the case of another.”
With respect to determination of whether evidence is admissible under any rape shield
statute including judicial consideration, under any of the four categories, it is critical
that the consideration be done so outside the hearing of the jury and also away from
the public. For example, California passed legislation in 2004 requiring sexual history
evidence to be discussed under seal in pre-trial motions. This was after the famous
People v Bryant case, an open and public rape trial against Kobe Bryant, included the
defence publicly asking permission to allow the introduction of various sexual history
evidence, which the defence listed in detail. The public request made its way into the
news and the Internet, effectively bypassing the rape shield law.
Deborah Tuerkheimer, Professor at Northwestern Law, has commented on the use of
sexual history evidence to prove consent, noting that “there may indeed be times when
a court should allow this evidence” so that the defendant may exercise the “right to
present a meaningful defense.39” She states that a victim’s sexual history should be
admissible for consent only “if the prosecutor’s case-in-chief has somehow enhanced
its probative value, infusing it with significance beyond the prohibited inference that
consent begets consent.”40 In other words, she advocates the position that the door to
sexual history evidence for the defendant should be opened only if the prosecutor has
done so first—that the defendant may only use such evidence as rebuttal.41

CONCLUSION AND RECOMMENDATION

1. Based on this brief overview of the rape shield legislation passed in each
jurisdiction of the United States, it appears that a combination of the
strong points from three of the four categories may be ideal. The only
category we suggest avoiding is a Constitutional Catch-All, which tends to
be poorly defined and fails to provide clarity.
2. The policies underlying the Judicial Discretion category provide the
flexibility required for courts to reach fair decisions in what are always
highly fact-intensive cases. This flexibility can gain structural strength
if combined with the reasoning leading to the carefully constructed
Legislated Exceptions and Evidentiary Purpose rape shield laws, which
provide examples of key considerations in rape cases.

39 Tuerkheimer, Judging Sex, 97 Cornell L. Rev. 101, 137 (2012)

40 Id. at 137-8.
41 Id. at 138-9.

33
 FRONT COVER PHOTO A woman
sits between carriages as the train
travels to Mymensing from Dhaka
September 20, 2009. REUTERS/
Andrew Biraj

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