Evidence in Sexual Offence Prosecutions

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

How should the rules of evidence respond to misconceptions surrounding sexual offences?

Documents

Download the consultation paper

Download the summary of the consultation paper

Download an overview of our key proposals

Responses to the summary of the consultation paper can be submitted here.

Responses to the full consultation can be submitted here. The consultation is open until 29 September 2023.

The problem

The Government’s End to End Rape Review found that the prevalence of rape and sexual violence has remained steady in the last five years but there has been a sharp decrease in the number of prosecutions since 2016/2017.

There are many complex reasons for the decline in cases reaching court. Our focus is on how evidence is used in trials involving sexual offences. Academic research shows that some individuals hold misconceptions about sexual harm (“rape myths”) in relation to the credibility, behaviour and experience of complainants in cases involving a sexual offence. It is unclear how extensive such misconceptions might be amongst the public and how much impact they can have on the juror’s task of evaluating the evidence.

Some argue that jurors need more assistance with assessing evidence in relation to sensitive and challenging issues that may fall outside their own experience and understanding. We will consider whether more needs to be done in our criminal courts to tackle misconceptions.

Our review

The Government has asked the Law Commission to examine the trial process and to consider the law, guidance and practice relating to the use of evidence in prosecutions of sexual offences.

We commenced work on the project on 17 December 2021 and published a background paper in February 2022. We then conducted research and met with stakeholders to develop provisional proposals for reform. On 23 May 2023 we published a consultation paper containing these provisional proposals.

The consultation paper

In our consultation paper, we set out our provisional proposals for reform of the way that evidence is used in sexual offences prosecutions in England and Wales. The proposed reforms have three goals: improving understanding of consent and sexual harm by countering the effects of rape myths, improving the treatment of complainants, and ensuring that defendants receive a fair trial.

Rape myths are genuine and sincere beliefs that are factually incorrect and derived from stereotypes. Despite a myriad of strategies to minimise their effects, evidence shows that myths and misconceptions about rape still contaminate some aspects of the trial process. In our consultation paper, we consider strategies to minimise the effects of these myths.

Our provisional proposals seek to address the way that evidence, such as a complainant’s counselling records or sexual history, can be used to undermine their credibility by relying on myths and misconceptions. We therefore propose methods to help jurors better understand such misconceptions, and call for greater judicial oversight of how evidence is obtained and used.

Evidence in sexual offence prosecutions is also at times utilised in unnecessarily intrusive and traumatising ways. However, currently, complainants have little control over the way their sensitive personal information is used. We therefore propose measures that would help complainants understand their rights and allow them to be more involved in decisions about their personal records and evidence of their sexual behaviour.

The proposals will protect the defendant’s right to a fair trial by ensuring that they can present evidence relevant to their defence without causing unnecessary trauma to the complainant.

On 23 May 2023 we published three documents for this consultation: the full consultation paper, a summary of the consultation paper, and a brief overview of our key proposals.

We welcome responses to our consultation from anyone affected by, or with knowledge of, the issues covered. This includes those who have experienced sexual violence or support people who do, and those who have experience of the criminal justice system.

How to respond to the consultation

We kindly request responses to the consultation by 23:59 hours on Friday 29 September 2023. Responses to the summary of the consultation paper can be submitted using this link. Responses to the full consultation paper can be submitted using this link.

Where possible, it would be helpful if the links were used. Alternatively, comments may be sent by email to evidence.rasso@lawcommission.gov.uk.

Upcoming consultation events 

• BACP Online Q&A – Thursday 7 September, 15:30-17:00
• Rape Myths and Sexual Behaviour Evidence (in collaboration with Doughty Street Chambers and Russell-Cooke LLP) – Thursday 21 September, 18:00-20:00

Details of further consultation events will be made available in due course.

Engagement with Committees

As part of this project, we consider how to improve sexual offence complainants’ experiences of trial process while ensuring that defendants receive a fair trial. When the Home Affairs Committee launched their inquiry into the investigation and prosecution of rape with a view to improving complainants’ experiences, we provided oral evidence explaining the remit of our project and giving some preliminary views. This evidence was cited in the Committee’s report, which can be accessed here.

On 26 June 2023, we provided oral evidence to the Justice Committee as part of their inquiry into evidence in sexual offence cases. Professor Penney Lewis spoke about our recently published Consultation Paper and its provisional proposals, particularly discussing personal records, independent legal advice for complainants and special measures. A transcript of the evidence can be found here.

Next steps

Our consultation is open until 29 September 2023 and we welcome responses. We will analyse the responses. We expect to publish the final report with recommendations in 2024.

Contact us

To be added to the mailing list and stay up to date with this project, please use this form.

For other matters you can contact the team by email: evidence.rasso@lawcommission.gov.uk