Reform to the law, guidance and practice relating to evidence in RASSO trials needs to prioritise scrutiny of the reasoning processes which judges and other legal actors apply to sexual behaviour.

We need robust techniques for challenging claims that a complainant’s sexual behaviour is relevant evidence so that ‘common sense’ assumptions do not continue to subvert justice. 

Key findings

• The inclusion of sexual behaviour evidence in RASSO trials raises serious and important issues of fairness. In 2016, footballer Ched Evans was acquitted of rape after the Court of Appeal allowed the introduction of evidence of the complainant’s sexual behaviour with two other men (R v Evans [2016] EWCA Crim 452). Since then, the adequacy of the legal framework that governs such evidence has been called into question. Law and practice in this area needs to change, but for such reform to be effective it must be accompanied by wider societal change.

• The current legal framework relies on a distinction between:
  • myths and misconceptions about sexual behaviour that are false and therefore irrelevant to the matter being decided in the trial, and;
  • information that is said to have an ‘evidential basis’ and is therefore relevant.

This distinction fails to recognise that the ‘evidential basis’ that claims of relevance rely on is also the main way that such problematic myths and misconceptions enter the reasoning process.

• Our general knowledge of the world is embedded in a gendered framework, which attributes roles and responsibilities to sexual behaviour. The factual bases that support relevance reasoning are drawn from this knowledge.  Problematic myths and misconceptions enter legal deliberations as culturally prevalent ideas about how to interpret and evaluate sexual behaviour. These ideas, which include assumptions about the relative roles and  responsibilities of men and women in sexual encounters, shape discussion about sexual behaviour whether or not discussants (in the case of law, judges, juries and lawyers) consciously agree with them.

• This problem cannot be solved by reform to law and policy alone. However, clearer articulation and stronger justification of the relevance of sexual history evidence in RASSO trials will undoubtedly help.

• Mainstreaming a framework of complainant rights in RASSO trials is important because it would make the state’s responsibilities to ensure justice for both the defendant and the complainant more tangible.

• Any changes to the law and policy around evidence in sexual offence prosecutions must form part of a holistic response to the problems in this area. Legal and policy changes must be part of a suite of responses to the problem of sexual violence.