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Mr. Deputy Speaker: With this, it will be convenient to discuss also the following: New clause 12--Irrelevant questioning about the victim's past sexual history--
'.--In section 2 of the Sexual Offences (Amendment) Act 1976 the following subsections shall be substituted for subsections (1) and (2)--
"(1) If at a trial any person is for the time being charged with a sexual offence to which he pleads not guilty, then except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant.
(2) The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application to him made in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that--
(a) it is evidence--
(i) of sexual experience or sexual activity taken part in by the complainant at or about the time of the time of the commission of the alleged sexual offence; and
(ii) of events which are alleged to form part of a connected series of circumstances in which the alleged sexual offence was committed; or
(b)(i) the accused person is alleged to have had sexual intercourse with the complainant and the accused person does not concede the sexual intercourse alleged; and
(ii) it is evidence relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged; or
(c) it is evidence relevant to whether at the time of the alleged sexual offence there was present in the complainant a disease which at any relevant time was absent in the accused person; or
(d) it is evidence relevant to whether the allegation that the sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery which took place after the commission of the alleged sexual offence); or
(e) it is evidence tending to show that the complainant has, at a different time, made another allegation of a sexual offence which the complainant has subsequently withdrawn, admitted was false or which was unsubstantiated; or
(f) where it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have--
(i) had sexual experience, or lack of sexual experience of a general or specified nature; or
(ii) taken part or not taken part in sexual activity of a general or specified nature; and
(iii) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication.
(2A) The judge shall not give leave under paragraphs (a) to (f) of subsection (2) above unless he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question or questions to be asked.
(2B) Where a judge has given leave in accordance with this section for evidence to be adduced or for a question or questions to be asked he shall record or cause to be recorded in writing the nature and scope of the evidence which may be adduced and the question or questions which may be asked and he shall further record or cause to be recorded in writing his reasons for giving leave.
(2C) In considering the nature and scope of the evidence which may be adduced and the question or questions which may be asked the judge shall take into account any distress, humiliation or embarrassment which the complainant might suffer as a result.".'.
New clause 13--Trial judge warnings on delays in reporting sexual offences--
Ms Jowell:
The new clauses are entirely consistent with the purposes of the Bill as set out by the Home Secretary when the legislation was published last November. The Government said that their aim was to ensure that
The purpose of any justice system must be to ensure that the innocent go free and that the guilty are convicted. With the conviction rate for rape at less than 9 per cent.--unchanged since 1985--no one can believe that 90 per cent. of women who make a complaint to the police alleging rape are making it up. The new clauses seek to address those issues. They represent small but important steps in a long process of rebuilding the confidence of victims of rape and sexual assault in the criminal justice system.
In recent weeks I have received many letters from women which give vivid glimpses of their damaged self-confidence. Women's self-confidence is damaged initially by the assault and then damaged further by the legal processes that follow, or by their encounter with them. I received a letter from a woman in Liverpool who was raped when she was 10. She summed up the feelings expressed by many. She wrote:
Our proposals also address the alarming decline in the conviction rate for rape offences in recent years. In 1980, 37 per cent. of rape offences reported to the police resulted in a conviction. By 1994, the figure had fallen to 8.6 per cent. Since the Crown Prosecution Service was established, the percentage of cases that have not proceeded to a Crown court committal has trebled. We share the Home Secretary's aspiration that:
I shall summarise briefly the essence of the three new clauses. The first concerns evidence of multiple sex offences. The new clause tackles judges' evident reluctance to hear together the separate sexual offences of which a defendant may stand accused. There is alarming evidence to show that such reluctance is resulting in men who are accused of multiple rapes against different women going free or receiving lighter sentences that do not match the severity of their crimes. Trial judges' readiness to hear cases separately denies juries crucial information about the extent of the allegations made against some serial rapists. The new clause tightens the current rules on multiple sex offence charges and makes it clear that the presumption for the trial judge should be that such cases are tried together.
New clause 12 deals with irrelevant questioning about a victim's past sexual history. The new clause is necessary because of the evident failure of the Sexual Offences (Amendment) Act 1976, which gives judges the discretion to limit questions about the complainant's sexual history. Research conducted by Zhusanna Adler at the Old Bailey in the early 1980s found that not only was leave given to the defence to ask about sexual history in more than 70 per cent. of cases when it was requested, but the defence counsel frequently did not bother to ask for leave and launched into cross-examination on sexual history without any objection from the judge or from the prosecution. In a further study on Court of Appeal rulings about sexual history evidence in England and Wales, Professor Jennifer Temkin argued:
Barristers claim that such questions are vital in order to protect the defendant from false allegations. It is true that such questioning is needed on some occasions, and our new clause allows for it in those circumstances. However, a Scottish Office survey of defence barristers got closer to the truth. Many admitted that they used such questions to:
The new clause would require the judge, in considering any request from the prosecution, to take clearly into account any distress, humiliation or embarrassment that the questioning might cause the victim. The proposals should also be linked to improved training for judges when handling rape cases, and to a more determined effort than we have seen to increase the number of women sitting as judges.
New clause 13 refers to delays in reporting offences. The aim of the new clause is to ensure that the victims of sexual crime receive fair treatment at the hands of the courts. Victims of sexual offences frequently delay reporting the offence to the police, and they often have a number of good reasons for doing so. Those reasons might include their immediate distress and the fact that they were only urged to report the offence when they talked to a friend.
Some victims are prevented from reporting an offence by a sense of shame; others are simply too embarrassed or too fearful of the effects of a complaint on their families or friends. While people in the criminal justice service may be aware of those good reasons, there is evidence that juries are often misled about the significance of any such delay. We therefore propose to require trial judges to inform juries in all sexual offences trials that there may be good reasons why a victim may delay reporting an offence, so that juries do not draw unwarranted conclusions from any delay.
The three measures that we have placed before the House today are small steps to end some of the injustices experienced by victims of rape and sexual assault. They are a start, and are entirely in keeping with the spirit and intended purpose of the legislation. They are consistent with the Bill's aims of ensuring that the guilty are convicted while continuing to protect the innocent, and of offering detailed measures to improve the administration of justice.
I shall finish with the words of a woman who, having experienced rape, wrote to me recently. She said:
' .--Where on the trial of a person for a sexual offence evidence is given either by the prosecution or the defence or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the person upon whom the offence is alleged to have been committed or to suggest delay by that person in making any such complaint, the trial judge shall--
(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed was false; and
(b) inform the jury that there may be good reasons why a victim of a sexual offence may delay in making, or may refrain from making, a complaint about the offence.'.
"the guilty are convicted while continuing to protect the innocent through detailed measures to improve the administration of justice".
The Home Secretary added:
"The criminal justice system should not be a legal maze which allows too many guilty people to walk free. The Bill will also help to reduce trauma and stress on victims".
The three new clauses introduced by the Labour party today are designed to ensure that the victims of rape and sexual assault receive fair, sensitive and humane treatment at the hands of the legal service and to help to reduce the intolerable trauma and stress that often accompanies the experience of becoming a complainant in a case. They also seek to ensure that serial rapists receive the punishment that they deserve and do not walk free only to assault again.
"People should remember that we have already been through a degrading act when we are raped and have to relive it when we are in court. We are the victims not the perpetrators. A woman does not ask for this invasion by what she wears or how she talks. I only hope that my daughter sees the day when she can be proud of the justice system and of the help it gives to rape victims".
Recent improvements in the way that the police deal with women who are the victims of rape and sexual assault are welcome. However, according to Commander Tom Williamson, who chairs the Metropolitan police's sexual offences steering committee, the benefits of those improvements have been undermined by the treatment of victims in court. At a conference last year, he said:
"Just because a victim is giving evidence about a rape it should not entitle a barrister to rape them metaphorically a second time".
Commander Williamson said that the prospect of that ordeal still prevents many victims from coming forward. He added:
"A consequence of this lack of confidence in the criminal justice system is the loss of criminal intelligence, with the modus operandi in a series of crimes not being identified and rapists not being brought to justice".
Twenty years ago, the Heilbron report found that the intrusive and irrelevant questioning of rape victims by defence lawyers was in effect putting the woman on trial. That is still true today. A 17-year-old rape victim remarked after the trial and conviction of her rapist:
"no woman in her right mind would bring a case".
Our new clauses reassert the Heilbron report's unarguable and obvious principle which should not need to be restated: a woman's sexual experiences with partners of her choice in no way indicate a general willingness to
consent to sex with anyone. Women do not give consent to sex with general categories of men; nor do they give general consent to intercourse in particular places. Consent is granted or declined only on an individual and private basis.
"The criminal justice system should not be a legal maze which allows too many guilty people to walk free".
Today we will give the right hon. and learned Gentleman and his colleagues the opportunity to put that principle and that aspiration into practice.
"The willingness of the Court of Appeal to see a wide range of evidence as relevant to consent means that trial judges who refuse to allow in sexual history evidence do so at some considerable risk of a quashed conviction on appeal. It will be an inept defence counsel who is unable by some means or other successfully to apply under Section 2".
Professor Sue Lees, who has conducted landmark studies in this area, monitored all contested rape trials at the Old Bailey over a four-month period in summer 1993. She found that judges allowed questions about victims' past sexual histories in seven out of 10 rape trials. She has shown how judges continue to give defending barristers free rein to ask the most intrusive and needlessly distressing questions of women who have been the victims of rape.
"create a smokescreen of immorality around the girl."
In her book "Carnal Knowledge: Rape on Trial", Professor Lees gives examples of questions that, according to the spirit of the Sexual Offences Act 1976, should not have been allowed. In one case, the complainant was asked:
"Before this incident on 5 February, when was the last time that you had sexual intercourse with anyone?"
On another occasion, a complainant was asked:
"Have you had sex with a man other than the defendant?"
Often, the questions are more oblique. Questions such as "What kind of material is your underwear made of?" or "Would you agree that it's a dressy dress?" are designed to construct the "smokescreen of immorality" through insinuation and innuendo. Sue Lees has said:
"In the trial transcripts I examined I found that the perfectly normal behaviour of young women is presented as evidence that they provoked the man's attack or asked for it."
The new clause revises sections 1 and 2 of the Sexual Offences (Amendment) Act 1976 to provide important new protections from unjust, irrelevant and intrusive questioning of rape and sexual assault victims. The proposals are based on the tried and tested formula of the 1981 New South Wales Act. The proposals set out in the new clause would establish for the first time clear and specific circumstances in which a judge may allow any questioning about the victim's sexual history. It requires the prosecution to seek permission to ask any such questions away from the jury, and requires the judge to state clearly in writing the questions that may be asked, and his reasons for giving such leave.
"I hope I can see the day when we can cheer the support of the courts instead of weep."
The Government have betrayed the victims of rape and sexual assault. Today the Labour party is giving the Government the opportunity to repair some of that damage.
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