Sexual Experience Evidence: The Continued Search for a Balanced Approach.

Abstract

The admissibility of a complainant's sexual experience evidence1 during a sexual offence trial has long generated controversy and debate.2 Its use in rape trials is thought to have a deterrent effect on victims who may be contemplating reporting an attack, and it has been implicated in the low conviction rate in such trials.3 Given the potentially negative and prejudicial impact of this evidential rule on rape complainants and the trial of such offences, the importance of regulating the use and admissibility of such evidence has long been recognised across the common law world, including Ireland. However, despite reforms taking place, the law on sexual experience evidence remains problematic and lacking in clarity. Recently, this issue has returned to prominence in the general media as a result of a number of high profile cases, both in this jurisdiction and elsewhere. In England and Wales a review of the admissibility of such evidence was undertaken after the trial of footballer Ched Evans.4 Evans was acquitted of rape at a retrial after a judge controversially permitted two men who previously had intercourse with the complainant to give evidence in defence of Evans. More recently, in this jurisdiction, the Irish Times released worrying figures demonstrating how a large number of rape complainants were still being questioned about their sexual history despite it remaining unrelated to the allegations in the case.5 This, along with a number of concerning examples of cases where it appears such evidence has been wrongly admitted, has led to renewed calls for further research and additional reform of the law. With these recent developments in mind, this article will consider the approach in this jurisdiction to the regulation of sexual experience evidence and assess the potential future development of the law in Ireland by reference to developments in England and Canada. It will begin by outlining the origins of sexual experience evidence and the consequences which can flow from the illegitimate introduction of such evidence. The law as it currently stands in this jurisdiction will then be considered, including a tracing of the various reforms introduced over three decades. Finally, the regulation of such evidence in England and Canada will be considered and an assessment will be made as to whether either approach could assist in paving the way for the future reform of the law in this jurisdiction.