The Admissibility of Sexual Experience Evidence in Ireland Gerard Murphy B.L.

1 Introduction The Court of Criminal Appeal has recently considered the controversial issue of the admissibility of evidence of sexual experience in trials of sexual offences. This article reviews the legal position in Ireland in light of the Court of Criminal Appeals judgment. The law in this area has undergone considerable change in England and Wales since the passing of the Youth and Criminal Evidence Act 1999 and the decision of the House of Lords in the case of R. v. A. (No. 2)2, which interpreted the new provisions in light of the Human Rights Act 1998. The effect of the new provisions in the Youth and Criminal Evidence Act 1999 has undergone thorough research and analysis in a recent report commissioned by the Home Office3. In many common law jurisdictions the restriction on the admissibility of sexual experience evidence has undergone significant refinement in recent years. For the purposes of this article I propose to review the law in Ireland only, but will refer to the position in England and Wales and Canada for the purpose of reform of the restriction in this jurisdiction. The term sexual behaviour is now used in England and Wales. In Canada the term used is sexual activity. However, when discussing the Irish position the term sexual experience will be used as this is the term used in s. 3 of the Criminal Law (Rape) Act 1981. The problem with evidence of sexual experience Cross-examination of a complainant as to her sexual experience was previously considered an important aspect of a defence to a charge of sexual assault4. However, admitting evidence of a complainants sexual experience has long been criticised as perpetuating the twin myths that by reason of her past sexual behaviour a complainant is (a) more likely to
1 2

Faculty of Law, University College Cork. [2002] 1 A.C. 45 3 Kelly, Temkin and Griffith, Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials, Home Office 20 June 2006. Available online at http://www.homeoffice.gov.uk. 4 See the judgment of Kenny J. in the case of D.P.P. v. McGuinness [1978] I.R. 189, 190: The complainant will never admit that she consented, and counsel must seek to show that at the time of the offence her character and behaviour were such that she would be likely to have consented or that she has invented the evidence which she is giving. Both of these are extremely difficult to establish but counsel must try. He often seeks to do so by cross-examining the complainant about events in the past so that he can introduce doubts into the minds of the jurors about her character or her credibility and he may have to cover many aspects of her past life. Although the Supreme Court in the case of The People (D.P.P.) v. Tiernan [1988] I.R. 250 said that a complainants previous sexual experience could not be considered a mitigating circumstance in any rape for the purposes of sentencing the convicted defendant.

have consented to the sexual activity in question and (b) less credible as a witness5. Lord Steyn observed in the case of R. v. A.6 that generalised, stereotyped and unfounded prejudices ought to have no place in our legal system.7 In the same case Lord Slynn said: in recent years it has become plain that women who allege that they have been raped should not in court be harassed unfairly by questions about their previous sex experiences. To allow such harassment is very unjust to the woman; it is also bad for society in that women will be afraid to complain and as a result men who ought to be prosecuted will escape. That such questioning about sex with another or other men than the accused should be disallowed without the leave of the court is well established Such a course was necessary in order 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. Evidence of previous sex with the accused also has its dangers. It may lead the jury to accept that consensual sex once means that any future sex was with the woman's consent. That is far from being necessarily true and the question must always be whether there was consent to sex with this accused on this occasion and in these circumstances.8

An accused person is, however, entitled to a fair trial and to adduce evidence and cross examine a witness in relation to a matter that may be relevant to an issue in the case. When exactly evidence of a complainants sexual experience may be relevant is highly controversial. Consensus is difficult to achieve. As Temkin et al note in their recent study of the law in England and Wales: relevant is in the mind of the beholder9. The questions to be asked are: when is it appropriate to admit evidence of the complainants sexual experience and if such evidence is to be excluded can such exclusion be justified having regard to the personal rights of both the complainant and the defendant? Section 3 of the Criminal Law (Rape) Act 1981 Section 3 of the Criminal Law (Rape) Act 1981 10 provides that if a person is charged with a sexual assault offence to which he pleads not guilty then, except with the leave of the trial judge,:no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience (other than that to which the charge relates) of a complainant with any person.
5

See R. v. A. [2002] 1 A.C. 45, 48. See also the judgment of McLachlin J. (as she then was) in the case of R v Seaboyer (1991) 83 DLR (4th) 193, 258. 6 [2002] 1 A.C. 45 7 [2002] 1 A.C. 45, 59 8 [2002] 1 A.C. 45, 54 9 See Kelly, Temkin and Griffith, Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials, (Home Office 20 June 2006) at page 12. Evidence may be relevant in a range of circumstances. On this point see the Law Reform Commissions Consultation Paper on Rape (1987) at para. 85. See also the judgment of Lord Hope in R. v. A. [2002] 1 A.C. 45, 78 (para. 79). 10 As amended by s. 13 of the Criminal Law (Rape) (Amendment) Act 1990.

Section 13 of the Criminal Law (Rape) (Amendment) Act 1990 extended the scope of the restriction to offences other than rape. Section 12 of the Act of 1990 provides that a sexual assault offence includes a number of offences including rape, rape under s. 4, aggravated sexual assault, sexual assault and any attempts to commit these offences, as well as other offences. Notably the restriction appears not to apply where a person is charged with an offence of unlawful carnal knowledge. However, the restriction has been applied to the new offences of defilement created by ss. 2 and 3 of the Criminal Law (Sexual Offences) Act 200611. The Act of 1990 also extended the restriction to exclude evidence of sexual experience with the particular defendant12. Prior to 1990 a complainant (or other witness13) could be asked about the complainants sexual experience with the defendant but not with any third party. Since 1990 the restriction applies to the complainants sexual experience with the defendant, as well as any third party, other than that to which the charge in question relates. The restriction only applies to the accused; the prosecution can adduce evidence of sexual experience if they wish without any restriction14. Although the term previous sexual experience is widely used the word previous is not used in the legislation and so the restriction can apply to any sexual experience previous or subsequent to the alleged offence being tried15.

11 12

Section 6 of the Criminal Law (Sexual Offences) Act 2006. This followed a recommendation of the Law Reform Commission in its Report on Rape: Law Reform Commission, LRC 24 1988, Report on Rape and Allied Offences, at para. 28. Archbold notes that at common law the complainant could be contradicted if she denied having previously had intercourse with the defendant on the basis that such a fact would be relevant to consent: R. v. Riley (1887) 18 Q.B.D. 481. See Archbold: Criminal Pleading, Evidence and Practice (2005) at para. 8 123l. 13 The provisions in s. 3 restrict not only examination or cross-examination of the complainant but also any other witness as to the complainants sexual experience. It would not permissible to ask a witness to give evidence that the complainant was a prostitute, for example, without the leave of the trial judge under s. 3. 14 In New South Wales the restriction applies to both the prosecution and the defendant, see Crimes Act 1900, s. 409B (3). There is no statutory rule preventing examination or cross-examination of the defendant as to his sexual experiences. Such evidence has been used, on occasion, to unfairly discredit a defendant. See the recent judgment of the Supreme Court in the case of O. (D.) v. D.P.P. (8th March 2006) where the defendant was asked a long series of questions on cross-examination by the prosecution as to his sexual makeup. Hardiman J. found that the cross examination was was apt to belittle and oppress the defendant and that the questions asked were not at all probative and manifestly prejudicial towards the defendant. 15 While the term sexual history evidence is also widely used, it is best avoided. The phrase sexual experience evidence should be preferred. The term rape shield rules was also used quite frequently in this context in the past but the term is misleading. As McLachlin J. (as she then was) noted in her judgment in the case of R. v. Seaboyer (1991) 83 DLR (4th) 193, 258: the term rape shield is less than fortunate; the legislation offers protection not against rape, but against the questioning of complainants in trials for sexual offences.

Since the passing of s. 34 of the Sex Offenders Act 2001 a complainant is entitled to separate legal representation when an application is made to admit evidence of his or her sexual experience. Section 3 (2) (b) of the Criminal Law (Rape) Act 1981 provides that the trial judge shall give leave to adduce evidence of, or cross examine a witness on, the complainants sexual experience:if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked

Further statutory guidance as to when exactly if would be unfair to refuse leave is provided as follows: that is to say, if [the trial judge] is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they (sic) would not be so satisfied.

The People (D.P.P.) v. G.K. In the case of The People (D.P.P.) v. G.K.16 the defendant had been convicted of a number of sexual offences against one complainant. At the initial trial for these offences the jury could not reach a verdict. The applicant was convicted of the offences at a second trial but those convictions were set aside by the Court of Criminal Appeal which ordered a retrial. At the sentencing hearing on the occasion of the second trial it emerged, in the course of a victim impact report prepared by a clinical psychologist, that the complainant had become sexually active with boys when she was twelve years old. At the third trial for these offences counsel for the defendant made an application to the trial judge for leave to cross-examine the complainant arising out of this disclosure in the report of the clinical psychologist. The argument was that the complaint against the applicant may have been false and this was a matter the jury was entitled to consider. The second argument was that the complainant may have misled the police medical examiner in not disclosing any history of sexual activity other than that involving the applicant. The application to cross-examine was refused by the trial judge, principally on the basis that consent was not an issue in the case. On appeal the Court of Criminal Appeal held that the evidence of the complainants sexual experience with boys when she was around twelve years old should have been admitted on the basis that the effect of allowing the evidence or question might reasonably have been that the jury would not have been satisfied beyond reasonable doubt of the guilt of the applicant.
16

The judgment of the Court of Criminal Appeal was given on 5th July 2006.

The Court of Criminal Appeal in G.K. made it clear that when asked to grant or refuse an application under s. 3 of the Act of 1981 the trial judge must make a judgment as to whether or not he is satisfied in the terms of section 3 (2). The Court said if the trial judge concludes that it would be unfair to exclude the evidence or question, it has to be admitted and allowed. It would be wrong therefore to speak of a trial judges discretion in this matter. The point is significant since the Court of Criminal Appeal does not lightly interfere with discretionary orders made by the court of trial since the court of trial is usually in the best position to determine the matter. As the Court of Criminal Appeal made clear in this case the decision to grant or refuse an application under s. 3 must be made on reasoned grounds. If the trial judge does not give reasons for his decision on this point this could be a ground of appeal if a conviction is later returned, especially if the refusal is difficult to justify on objective grounds. Since the test as to whether an application under s. 3 should be acceded to or not is set out in s. 3(2) an appeal could be taken to the Court of Criminal Appeal if the trial judge refuses an application for reasons which have no relevance to the statutory test. For example, it would be wrong if the trial judge did not adequately consider the fairness to the accused if the application is refused and instead determined the matter solely in light of the trauma or upset that would be caused to the complainant as a result of the line of questioning. The Court of Criminal Appeal would appear to have given the green light to this issue being reviewed more frequently on appeal. On the other hand the Court noted that a decision to refuse to allow cross-examination as to past sexual history may more readily be justified in most cases than the converse. This is because of the severely restrictive terminology of the statutory provisions. The Court offered some limited guidance as to when crossexamination would be undesirable: when the complainant is of a young age. The Court also noted that if cross-examination is allowed it should be confined only to what is strictly necessary and should never be utilised as a form of character assassination. Procedural matters relating to a s. 3 application Section 3 (2) (a) provides that an application under s. 3 must be made to the trial judge by or on behalf of an accused person in the absence of the jury. Section 6 of the Criminal Law (Rape) Act 1981 (as amended by s. 11 of the Criminal Law (Rape) (Amendment) Act 1990) provides that during an application under s. 3 the trial judge shall exclude from the
5

court all persons except officers of the court and persons directly concerned in the proceedings. However, a parent, relative or friend of the complainant may remain in court with the complainant. If the accused is under 21 then a parent, relative or friend of the accused may remain in court with the accused17. It would appear that representatives of the press are not entitled to be present in court for a s. 3 application, although they are entitled to be present during the trial.
Section 34 of the Sex Offenders Act 2001 provides for a new s. 4A in the Criminal Law (Rape) Act 1981. The section provides that in an application under s. 3 the complainant shall be entitled to be heard in relation to the application and, for this purpose, to be legally represented during the hearing of the application. A complainant is automatically entitled to legal aid for the purposes of being represented during this application18. The complainant does not have to satisfy the means test but must still apply for a legal aid certificate19.

The following procedure must be complied with when an application under s. 3 is to be made20:1. Notice of intention to make an application under s. 3 shall be given to the prosecution by or on behalf of the accused person before, or as soon as practicable after, the commencement of the trial for the offence concerned21. 2. The prosecution shall, as soon as practicable after the receipt by it of such a notice, notify the complainant of his or her entitlement to be heard in relation to the said application and to be legally represented, for that purpose, during the course of the application. 3. The judge shall not hear the s. 3 application without first being satisfied that steps 1 and 2 have been complied with. 4. If the period between the complainant's being notified of his or her entitlements under this section and the making of the said application is not, in the judge's opinion, such as to
17

These provisions appear unnecessarily restrictive. For example, if a person wishes to research the operation of s. 3 it would appear that such research could not be conducted even with the permission of the trial judge. At other stages of the trial such other persons may be permitted to remain in court at the discretion of the trial judge: see s. 6 of the Criminal Law (Rape) Act 1981, as amended by s. 11 of the Criminal Law (Rape) (Amendment) Act 1990. The Law Reform Commission, in its consultation paper on rape (1987) at para. 118 recommended that in particular cases, the judge should be empowered to permit the attendance of persons carrying out research of a criminological or other scientific nature at trials of sexual offences. Indeed the Commission in its report (Law Reform Commission, LRC 24 1988, Report on Rape and Allied Offences, at para. 24) noted that it could not tell how widespread the practice of not making formal applications under s. 3 was, as alleged by the Dublin Rape Crisis Centre, and so could not say with certainty that there were no problems with the operation of s. 3. 18 See s. 35 of the Sex Offenders Act 2001. See also Leaflet No. 14 published by the Legal Aid Board. Unfortunately this leaflet does not appear to be available on the Legal Aid Boards website. 19 The position of complainants in this jurisdiction is much more favourable than that of complainants in England and Wales. Not only are complainants in England and Wales not entitled to separate legal representation, under s. 43 (1) of the Youth and Criminal Evidence Act 1999 an application under s. 41 must be made in the absence of the complainant. This is an odd provision in legislation which is designed to protect the interests of complainants. 20 The procedure is set out in s. 34 of the Sex Offenders Act 2001. There do not appear to be any rules of courts concerning an application under s. 3. 21 Notification is writing is not specifically required.

have afforded the complainant a reasonable opportunity to arrange legal representation the judge shall postpone the hearing of the application (and, for this purpose, may adjourn the trial or proceeding concerned) for a period that the judge considers will afford the complainant such an opportunity22.

Criticism of the current law and proposals for reform In his judgment in the case of R. v. A. Lord Hope outlined the 6 models of restriction that currently operate in this area23. These models vary between leaving the matter of admissibility almost entirely to the discretion of the trial judge (which is the position in Ireland24) and setting out specific exceptions where such evidence may be admitted. Section 41 of the Youth and Criminal Evidence Act 1999 follows, by and large, the specific exception model. The compatibility of the provisions of s. 41 with the provisions of the Human Rights Act 1998 and the European Convention on Human Rights was challenged in the case of R. v. A. As Lord Hope noted in his speech:There is no doubt that Parliament, by placing restrictions on the questions that may be asked and the evidence that may be adduced by or on behalf of the accused was entering upon a very sensitive area25.

In that case the House of Lords found that, in particular, the restrictive nature of s. 41 (3) (c) was capable of infringing an accused persons right to a fair trial under article 6 of the ECHR. At para. 46 of his judgment Lord Steyn held that while due regard should always be paid to the importance of seeking to protect the complainant from indignity and from humiliating questions the test of admissibility should be whether the evidence (and questioning in relation to it) is nevertheless so relevant to [an issue in the case26] that to exclude it would endanger the fairness of the trial27. If this test is satisfied then the evidence should not be
22

A quick check list for a trial judge would read as follows: 1. Has the prosecution been notified of the intention to make the application? 2. Has the prosecution notified the complainant of his or her rights? 3. Has the complainant been afforded a reasonable opportunity to arrange legal representation? 4. Has the jury been sent out? 5. Has the public (except those persons entitled to remain) including the press been excluded from the court? If the answer to any question is no then the application should not be heard, at least for the moment. 23 [2002] 1 A.C. 45, 84. The 4 US models were first identified by Professor Galvin: Sheilding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade (1986) 70 Minn. L. Rev. 763. 24 The Law Reform Commission in its report on rape (Law Reform Commission, LRC 24 1988, Report on Rape and Allied Offences, at para. 25), having analysed the position in other common law countries, made no recommendation as to whether a specific exception model should be adopted in this jurisdiction or not. 25 [2002] 1 A.C. 45, 81 26 In the context of s. 41 (3) (c) His Lordship used the phrase the issue of consent; however the judgment has a wider application to any relevant issue in the case, not just the issue of consent. 27 [2002] 1 A.C. 45, 69

excluded. The provisions had to be interpreted in accordance with s. 3 of the Human Rights Act 1998 to give effect to the right to a fair trial protected by article 6. Similarly, in Canada the provisions in s. 276 of the Criminal Code (which originally followed a specific exception model) were challenged in the case of R. v. Seaboyer28. In that case the Supreme Court of Canada found the provisions to be inconsistent with the provisions of the Canadian Charter of Rights and Freedoms. The basis of the courts ruling was that the section had the potential to exclude otherwise admissible evidence which may be highly relevant to the defence. In an erudite judgment McLachlin J. (as she then was), for the majority, reformulated the common law rules as to admissibility of sexual experience evidence. The judgment of the majority was adopted by the legislature which amended s. 276 of the Criminal Code29. The test provided for in s. 3 (2) (b) of the Criminal Law (Rape) Act 1981 to admit evidence of sexual experience is currently compatible with article 6 of the ECHR since it leaves the admissibility of this particular type of evidence to the discretion of the trial judge having regard to the fairness due to the accused. However, the test can be criticised for being neither clear nor precise. The purpose of the provision is to exclude evidence of sexual experience except where to do so would be unfair to the accused person. However, the language of s. 3 (2) (b) is far from clear, certainly from a complainants perspective. The test to be applied in this context should be as simple as possible to afford as much certainty to the accused, the prosecution and the complainant. The test is also imprecise. If the purpose of the restriction is to exclude irrelevant evidence then the legislative provision should make this clear. At the moment s. 3 (2) (b) could be interpreted to allow irrelevant evidence. For example, if evidence is adduced that the complainant had, for a time in her past, worked as a prostitute the defence could argue that this evidence should be admitted under section 3. The evidence may be irrelevant to the offence being tried since the complainant would not have been working as a prostitute at the time the offence was committed, and so this could not have affected the defendants belief in her consent. Nevertheless, the defendant could make an argument that if the evidence of the complainants history as a prostitute was admitted the evidence would have an effect (albeit a prejudicial one) on the jurys deliberations in the case. Section 3 (2) (b) provides that the evidence of previous sexual experience should be admitted if the effect of allowing the evidence or question might
28 29

(1991) 83 DLR (4th) 193 The Supreme Court of Canada upheld the reformulated s. 276 in the case of R. v. Darrach [2000] S.C.C. 46. In the words of Gonthier J.: the current version of s. 276 is carefully crafted to comport with the principles of fundamental justice [2000] S.C.C. 46 at para. 3.

reasonably be that [the jury] would not be satisfied as to the guilt of the accused. The section does not use the phrase a jury properly charged. It is reasonable to assume that many jurors, being ordinary human beings with their own personal prejudices, could take a poor view of a womans evidence if they knew she was a prostitute in a former life and that such evidence could have the effect that the jury would not be satisfied as to the defendants guilt. It is difficult to contradict this line of argument since the case is often made that sexual experience evidence should be excluded since it has a negative effect on jurors even though the evidence may not be relevant to the case30. Indeed, evidence that a woman was a common prostitute has been found to be relevant to the issue of consent31 and therefore admissible. If an issue arose as to the admissibility of irrelevant evidence the courts should take a purposive approach to interpreting s. 3 on the basis that the test is ambiguous as to the admissibility of irrelevant evidence of sexual experience32. The Irish test should, however, be amended to more clearly reflect the purpose of the test and to ensure that irrelevant evidence is excluded while relevant evidence is admissible in order to ensure a fair trial and avoid an unsafe conviction. Furthermore, where an application under s. 3 is granted to the defence it would be much easier to explain to a complainant that the trial judge made the decision to allow the evidence relating to sexual experience because otherwise there would have been a risk of an unsafe conviction in the case. At present one would have to explain that the application was granted because the trial judge made an assumption that if the evidence was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty etc. Such an explanation would no doubt provoke confusion in
30

On this point see McLachlin J. in R. v. Seaboyer (1991) 83 DLR (4th) 193, 258 259. See also Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade (1986) 70 Minn. L.R. 763, 796. Although s. 3 (4) of the 1981 Act provides: Nothing in this section authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart from this section, it should be remembered that although the common law preferred to exclude irrelevant evidence, for a long time, evidence that a woman was a common prostitute was admissible at a trial of a sexual offence. See R. v. Clay (1851) 5 Cox 146. See also McColgan, Common Law and the Relevance of Sexual History Evidence (1996) 16 (2) Oxford Journal of Legal Studies 275. 31 R. v. Greatbanks [1959] Crim. L.R. 450; R. v. Holmes (1871) L.R. 1 C.C.R. 334; R. v. Clay (1851) 5 Cox 146. See also the comments of Stephen J. in the case of R. v. Riley (1887) 18 Q.B.D. 481 at 485. The common law position has been entirely discredited in the judgment of the Supreme Court of Canada in R. v. Seaboyer (1991) 83 DLR (4th) 193. As McLachlin J. said at p. 258: The fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with the accused. As Lord Slynn explained in R. v. A. [2002] 1 A.C. 45, 54: the question must always be whether there was consent to sex with this accused on this occasion and in these circumstances. Although such evidence is not relevant to the issue of the complainants consent, it may have a bearing on the accuseds belief in that consent. 32 At one point in the judgment in G.K. the court said: it can not be denied that the admission of a history of sexual activity with other boys of her own age commencing at the age of twelve and concurrent with the time of alleged sexual abuse by the applicant passes the test of relevance. (emphasis added). But the court did not address the issue whether evidence must be relevant to be admitted under s.3.

the mind of the complainant: are you telling me the judge allowed the evidence because otherwise the jury would find him guilty? The test used in England and Wales under s. 41 of the Youth and Criminal Evidence Act 1999 is not to admit the evidence unless the refusal to admit the evidence would render a conclusion (by the court or jury) on any relevant issue unsafe. This is a much clearer test. There is a world of difference between saying evidence should be admitted to avoid an unsafe conviction and saying evidence should be admitted on the assumption that otherwise the jury might find the defendant guilty. Unfortunately, the rest of the provisions in s. 41 of the Act are far from clear or simple. It would not be wise to follow the example of s. 41 in this jurisdiction for several reasons, most notably the incompatibility a specific exception model of restriction may have with the European Convention on Human Rights. In Canada the equivalent restriction on sexual experience evidence is set out in s. 276 of the Criminal Code which provides:
(1) In proceedings in respect of [a sexual] offence , evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief.

This part of the provision makes it clear that the purpose of the statutory restriction is to discredit the twin myths. Even if sexual experience evidence is admitted it cannot be used to reinforce the twin myths. The provision continues by setting out the circumstances where sexual experience evidence may be admissible.
(2) In proceedings in respect of [a sexual] offence no evidence shall be adduced by or on behalf of the accused 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, unless the judge determines that the evidence (a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

The essential feature of the Canadian provision is that relevance as to an issue in the trial is a pre-requisite to the admissibility of sexual experience evidence. This is something that is glaringly lacking in the provisions of s. 3 of the Criminal Law (Rape) Act 1981. Objection might be taken to

10

the phrase significant probative value. This issue was considered by the Supreme Court of Canada in the case of R. v. Darrach33. In that case Gonthier J. found that the word significant on a textual level, is reasonably capable of being read in accordance with the fair trial rights of the defendant protected by the Charter. He approved the judgment of the Ontario Court of Appeal which found the expression significant probative value meant that the evidence is not to be so trifling as to be incapable, in the context of all the evidence, of raising a reasonable doubt34. This interpretation is entirely satisfactory from the point of view of the defendants right to a fair trial. The provisions then set out eight factors that the trial judge must bear in mind when deciding to either admit or exclude the evidence in question.
(3) In determining whether evidence is admissible under subsection (2), the judge shall take into account (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) societys interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f) the potential prejudice to the complainants personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge considers relevant.

Conclusion The Canadian provision has much to recommend it: (a) it declares the purpose of the restriction which is to exclude irrelevant evidence and (b) it offers detailed guidance as to when relevant evidence should be admitted and the factors that should be considered by the trial judge in admitting the evidence. If a similar test were to be adopted in this jurisdiction 35 complainants might be able to appreciate that the trial judge made his decision having regard to the fairness due to the accused in a criminal trial. The complainant may not be happy with the outcome of the trial judges ruling, but at least s/he would be in a better position to understand
33 34

[2000] S.C.C. 46 R. v. Darrach [2000] S.C.C. 46 at para. 39 35 Which might, for clarity, include a statutory definition of significant probative value to mean that the evidence is not to be so trifling as to be incapable, in the context of all the evidence, of raising a reasonable doubt in the minds of the jurors.

11

the reasoning behind it. Moreover, if a more detailed test were to be adopted it would afford both prosecution and defence counsel a clearer understanding of the legal position with regard to the admissibility of sexual experience evidence. It would also provide a clear indication as when sexual experience evidence should be admitted i.e. only when it is relevant to an issue in the case and it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The refinement of the restriction in Canada offers an excellent example to other common law countries. Firstly, the clarity of the provisions makes the law easier for complainants to understand and secondly its precision upholds the fair trial rights of defendants with due regard to the complainants right to privacy and respect. There is a strong argument for saying the Canadian model should be followed in this jurisdiction in preference to the provisions of s. 41 of the Youth Justice and Criminal Evidence Act 1999. Moreover, the right to separate legal representation enjoyed by complainants in this jurisdiction further enhances the desirability of adopting the Canadian model in Ireland since the complainants lawyer will be in a position to offer structured arguments in favour of restricting evidence of sexual experience where appropriate. Indeed, the right to separate legal representation would be inconsistent with, and unnecessary under, a specific exception model.

12