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

Terms of reference

Background paper

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 will consider the need for reform in order to improve understanding of consent and sexual harm and the treatment of victims, while ensuring that defendants receive a fair trial.

Terms of reference

The project will consider the current approach to addressing misconceptions during the trial process including:

• the use of jury directions and juror education generally;
• the admission of expert evidence to counter misconceptions surrounding sexual offences;
• the admission of evidence of the complainant’s sexual history;
• the admission of the complainant’s medical and counselling records; and
• special measures for complainants during the trial.

The full terms of reference for the project are available here.

Next steps

We commenced work on the project on 17 December 2021. We will be conducting research and meeting stakeholders in order to develop provisional proposals for reform where it is needed. We will publish a Consultation Paper containing these provisional proposals in May 2023 with a view to publishing the final report in 2024.

Contact us

Please use this form to sign up to our mailing list and stay up to date with the project.

You can contact the team by email: evidence.rasso@lawcommission.gov.uk