Alleged sexual assault or rape victims are questioned about their sexual pasts in nearly three out of four cases in UK courts, according to a new survey – even though that information is legally not allowed to be disclosed unless it is absolutely essential to the trial.

That’s according to a new study by sexual violence training organisation LimeCulture. Researchers surveyed 36 independent sexual violence advisers (ISVAs) about their experiences of working on 550 sexual offence trials between April 2015 and April 2017. ISVAs support sexual assault and rape victims through court proceedings, and often accompany victims to court during trials.

A shocking 75% of the surveyed ISVAs said that they had witnessed alleged survivors be interrogated about their sexual histories by lawyers representing the alleged abuser. Only a quarter said that none of the cases they attended included questioning the complainant about previous sexual history.

A further 11% said that sexual abuse victims had to endure this type of questioning in more than half of the cases they worked on.

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Most worryingly, more than half (56%) of the ISVAs surveyed said that in every case they had worked on where the complainant was questioned about their sexual history, the complainant was not warned in advance that defence barristers would try to use their sexual histories against them.

Under Section 41 of the Youth Justice Crime and Evidence Act 1999, it is illegal in almost all circumstances to cite a complainant’s sexual past as evidence against them in court.

In addition, legal guidelines state that if a defence team plans to question a complainant about their sexual past, the complainant should always be told before the start of the trial.

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However, S41 also states that defence teams can bring up the victim’s past sexual behaviour if it is “in any respect, so similar [to the circumstances of the alleged crime] that the similarity cannot be reasonably explained as a coincidence”. 

Baroness Newlove, the Victims’ Commissioner for England and Wales, said that the survey offers clear evidence that Section 41 is not being used to adequately protect victims.

“I am concerned about the experiences of victims in the court room. Victims of sexual offences are particularly vulnerable by the very nature of the crime they have suffered,” she said.

“It is important that this piece of legislation is applied appropriately, but this report shows, from the experiences of the Independent Sexual Violence Advisers (ISVAs) attending sexual offence hearings, this isn’t always happening.”

Baroness Newlove added that “reliving the crime” of sexual abuse in court “can be traumatic enough” for victims.

“Distress for victims can be exacerbated” if they then have to endure their sexual history being dragged through the courts, she said.

Section 41 came to national prominence during Ched Evans’ 2016 re-trial, in which he was found not guilty of raping a teenager. In that case, Evans’ accuser was grilled at length about what she liked to do during sex, who she had had sex with before and after meeting Evans, and the language she used in bed.

At the time, women’s groups and campaigners condemned the court’s decision to allow the woman to be interrogated in this manner. Many people expressed fears that other victims of sexual crimes would be deterred from reporting sexual crimes as a result.

In March this year, Labour MP Harriet Harman proposed a bill that would prevent alleged victims from being cross-examined about their sexual histories in court.

Discussing a complainant’s sexual past in a rape trial was “based on the old notion that there were two sorts of women – those who were ‘easy’ and those who were virtuous – and if you were easy, you would have sex with anybody, because you were that sort of woman,” Harman said.

“What you have to look at is the evidence and the information around that encounter, not any previous sexual encounters.”

The LimeCulture report recommends that sexual abuse victims all be given access to independent legal advice and representation to protect them from having their previous sexual history being disclosed when it is not relevant to the case at hand.

“I wholeheartedly support this recommendation, and believe that it would afford victims the assurance that where their previous sexual history is required to be disclosed in court, there are proper reasons for this,” said Baroness Newlove.

Images: Jiri Wagner / Rex Features / iStock

This article has been updated. An earlier version referred to a clause in S41 as a “loophole”, and stated that three-quarters of alleged sexual assault or rape victims had been questioned about their sexual pasts in UK courts. It also stated that more than half of ISVAs surveyed said that in every case they had worked on the complainant was not warned in advance that defence barristers would discuss their sexual histories.  

The survey actually says that three-quarters of ISVAs have observed court cases where victims are questioned on the subject, and that more than half of ISVAs surveyed said that in every case they had worked on where the complainant was questioned about their sexual history, the complainant was not warned in advance that defence barristers would discuss their sexual history. The article has been amended to reflect this.