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Appendix Five: Application to Introduce Sexual Character
Comparison of application dialogue in cases involving sexual character
Two baseline study cases are described, one in which the Advocate Depute did not oppose the application and it was granted and one in which the Advocate Depute did oppose the application and it was refused in part. These are compared with an application case post 2002 in which the Advocate Depute opposed the sexual character evidence and it was partially refused.
Baseline study case 1110 (1999) Attempted Rape; case abandoned by the Prosecution after the complainer's evidence.
The Defence application sought to question the complainer in respect of 3 matters; 2 of these pertained to sexual character: that the complainer danced naked in the pub a few weeks earlier than the alleged incident; that the complainer offered oral sex to barman in return for free drinks a few weeks before the alleged incident; the third concerned a previous allegation of rape.
As the Defence described the proposed evidence, the Judge intervened and said that s/he did not see the relevance of naked dancing in a pub. The Defence argued that it was a matter of the credibility and reliability of the complainer and shows her to be of bad character in relation to sexual matters. The Defence also argued that the issue did not really require an application but if it did then he asked the Judge to exercise the discretion allowed by the exception clause 'in the interests of justice'. With regard to the other item, the Defence said that this indicated the free and easy way the complainer offered sexual favours to others and her general behaviour when drunk. The Advocate Depute accepted these issues were relevant to character of the complainer and agreed with the Defence that naked dancing was not within the ambit of the prohibitions of the legislation: 'it may be distasteful but [it's] not strictly speaking relevant under the statute'. The Judge allowed the application simply stating satisfaction that all 3 matters were relevant in this case. The whole dialogue took 12 minutes.
Baseline study case 1202 (1999) Rape, amended to Attempted Rape at the end of the complainer's testimony; Not Guilty Verdict.
In this rape case the Defence made 2 applications: the first was to question a witness about the complainer dancing in underwear in front of him and others at his house, and her tendency for exhibitionism and sexually provocative behaviour such as going up to men in bars fondling and propositioning them, and sleeping with strangers despite having a boyfriend. The Defence also noted that that the complainer had admitted to the Crown to having worked as a prostitute but did not seek to raise this. The Judge allowed questions to be asked of the witness about what happened at his house but refused the motion regarding other matters of exhibitionist or sexually provocative behaviour.
In a second application immediately following the complainer's evidence in chief, the Defence sought to put questions to the complainer about 3 issues claiming that the Advocate Depute did not object to the first two and should not object to the third. Two of these issues concerned sexual behaviour with others than the accused, which the Defence said demonstrated a pattern relevant to the current charge. Clearly they also introduced evidence that were also likely to suggest that the complainer was of bad character in relation to sexual matters, although this not an aspect that the Defence explicitly acknowledged. The first involved questioning the complainer about the forensic report which had found DNA of 2 men in addition to the accused in samples taken from her. The second issue involved questioning her about the medical record taken by the doctor, and as opening up questions about what the doctor had recorded concerning her sexual history, this allowed questioning about the fact that she was an alcoholic. Finally, the third issue involved questioning her about sex with a named man. The Defence again emphasised that despite the complainer admitting to police she worked as an escort and prostitute, they did not wish to raise any of that. The intention was to show that the complainer was willing on her own admission, to have sex with strangers. The Advocate Depute objected about putting evidence before the jury about occasions other than the alleged offence which were prejudicial to complainer and don't have a bearing on the night in question. The Defence argued that it was important to show that the complainer lost inhibition as a consequence of drink. The judge allowed questions to be put to the complainer about: 1. content of forensic report showing that DNA from several people found on samples taken from the complainer; 2. the medical history she had given to the police doctor; and 3. an incident with another named male. The judge ruled that the other issues raised by the Defence were not material to the trial but invited the Defence to revisit the application if it becomes necessary.
Post 2002 case 121 (2004) This case included the submission of 3 written applications with application 2 and 3 additional clauses, to those contained in the first application. The written substance is replicated below:
Evidence sought:
1. Any sexual activity was instigated by complainer and encouraged by her and that she made promiscuous sexual advances to the accused after she had consumed alcohol;
2. That prior to the alleged incident complainer had made similar advances to her niece on a previous occasion after consuming alcohol and had kissed her niece but had thereafter denied that she had made any such advances and had not consented to the conduct;
3. That complainer confessed to her sister that the allegation was false and was only intended to allow her to make a claim for criminal injuries compensation. The complainer disclosed that she had encouraged the accused because she found he was sexually inexperienced. Complainer's sister advised her to immediately withdraw the allegation and inform the police;
4. That complainer's nephew (currently in prison), lived with the complainer on landlord/tenant basis during which time complainer made frequent inappropriate advances to towards him after consuming alcohol. It will also be shown that complainer's statement to police that she is lesbian and hates men, is false.
Nature of proposed questioning:
To challenge complainer's truthfulness, to show a pattern of behaviour of complainer's willingness to engage in sexual behaviour with persons related to her when consuming alcohol, which will support the truthful evidence to be given or led by the accused, and to provide the court with a balanced picture of the evidence as a whole to allow it to properly weigh and evaluate the evidence.
Issues at Trial to which questioning relevant:
Complainer's consent to sexual conduct with the accused; Complainer's credibility.
Reasons why evidence considered relevant
To show that: the incident libelled was not an assault by the accused; the complainer is not credible in essentials of her evidence and that it is improbable her allegations are true;evidence has a positive probative value which will show applicant is not guilty
Inference
That conduct was instigated by complainer and was consensual.
Evidence of complainer's alleged distress cannot be relied on as supporting proof beyond reasonable doubt.
In the consequent discussion of the applications, the Advocate Depute argued that much of what the Defence sought to introduce under 1 and 3, was against the purpose of the legislation and a general attempt to undermine the complainer's credibility without showing relevance to the charge. The Judge was similarly not satisfied that the proposed evidence was relevant to establishing guilt or satisfied that probative value of that evidence was likely to outweigh any risk of prejudice to the proper administration of justice. 'Having regard to the need to protect the complainers privacy and dignity and to ensure that the facts and circumstances put before the jury are commensurate to the importance of the issue of the jury's verdict. I will therefore refuse the applications one and 3'.
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