Contents

Chapter 7
Evidence of sexual experience of complainants
in sexual cases

Introduction and background

7.1 This chapter considers the following matters relating to the evidence of the sexual experience of complainants in sexual cases:

  • the sexual experience of a complainant with the defendant in a sexual case;
  • the desirability of introducing an “interests of justice” test into s 44;
  • a pre-trial notification procedure; and
  • the need for written decisions under s 44.

7.2Section 44 deals with the admissibility of statements relating to the sexual experience of a complainant. It provides:

44 Evidence of sexual experience of complainants in sexual cases

(1) In a sexual case no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the judge.
(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
(3) In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
(4) The permission of the Judge is not required to rebut or contradict evidence given under subsection (1).
(5) In a sexual case in which the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence against the complainant, subsection (1) does not apply to any evidence given, or any question put, that relates directly or indirectly to the sexual experience of the complainant with that other person.
(6) This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.
7.3 Traditionally, the law of evidence treated the past sexual activity of a complainant in a sexual case as relevant to his or her credibility as a witness, even where it had no relevance to the alleged offending.510  It was particularly common in cases where consent was an issue, for the defence to offer evidence about the complainant’s sexual behaviour on other occasions, to argue that she was more likely to have consented to sexual activity with the defendant. In effect, this was a form of propensity evidence – about the complainant, rather than the defendant.511
7.4While complainants received some limited protection during cross-examination from ss 13 and 14 of the Evidence Act 1908 and the operation of the collateral issues rule, the common law permitted the defence considerable latitude in the questioning of the complainant.512

7.5Concern at the practice of subjecting the complainant to a “second rape” during the trial led New Zealand, along with a number of comparable jurisdictions, to enact legislation intended to control the extent to which the complainant could be questioned about her prior sexual experience. So-called “rape shield” legislation was first enacted in New Zealand in 1977 in s 23A of the Evidence Act 1908. As enacted, this provision provided protection for complainants only in cases involving charges of rape. In 1985 the provision was re-enacted with a broader application to “cases of a sexual nature”.

7.6When it was considering the law in 1997 the Law Commission described s 23A in the following terms:513

The provision does not exclude the evidence absolutely. Rather there is a limited ability for the judge to admit the evidence, if it is directly relevant and if “to exclude it would be contrary to the interests of justice”. But its proviso makes clear that “inferences [raised] as to the general disposition or propensity of the complainant in sexual matters” will not make such evidence directly relevant. The section would therefore exclude evidence of promiscuity and prostitution, although it does not control evidence of the sexual experience of the complainant with the defendant.

7.7The Law Commission noted that the courts had interpreted the section as aimed at protecting a complainant from “unnecessarily intrusive questioning” about their previous sexual history, but had also sought to strike a balance between this objective and unduly hampering the defence.514  It concluded that, while the New Zealand provision had avoided some of the problems that had been experienced with the so-called “rape shield” laws in other jurisdictions, it certainly was not “without its flaws”.515
7.8In its 1997 Preliminary Paper, the Law Commission suggested that there be a prohibition on evidence or questions about a complainant’s reputation in sexual matters for the purpose of challenging or bolstering her credibility, as such evidence has limited relevance to the issue of consent. It also questioned whether evidence of the complainant’s sexual experience with the defendant should be restricted.516
7.9 This latter issue gave rise to a “clear split of opinion among the commentators”.517  In the end the Law Commission recommended that the recast s 23A require that evidence of the complainant’s sexual history with the particular defendant must be of direct relevance in order to be admitted, but did not require permission from the judge to be sought. It considered that this acknowledged the relevance of a prior relationship with the defendant in some cases, but also reinforced the desirability of making a conscious inquiry into that relevance.518
7.10The other amendment the Law Commission suggested in relation to s 23A was to prohibit questions or evidence about the complainant’s reputation in sexual matters for the purpose of challenging her truthfulness or to establish her consent. The permission of the judge was to be required in relation to such evidence being led for any other purpose.519
7.11The Evidence Bill as introduced did not include this suggested change.520  The Select Committee that considered the Evidence Bill, however, recommended that cl 40 of the Bill (which became s 44 of the Act) be amended to:521

… provide that no evidence can be given and no question be put relating to the sexual reputation of the complainant in sexual matters. We consider that any reference to a person’s sexual reputation is irrelevant and should not be admitted.

7.12Section 44 as it was enacted (set out above at paragraph 7.1) has been described as a re-enactment of s 23A of the Evidence Act 1908 “with a few changes”.522
510Elisabeth McDonald “Her Sexuality as Indicative of His Innocence: The Operation of New Zealand’s “Rape Shield” Provision” (1994) 18 Crim LJ 321 at 321.
511Law Commission Evidence Law: Character and Credibility – A Discussion Paper (NZLC PP27, 1997) at 101.
512Sections 13 and 14 provided general protection for all witnesses against improper, offensive and unnecessary types of questions. For further discussion of the collateral issues rule, see paragraph 6.12.
513Law Commission Character and Credibility, above n 511, at 104–105.
514At 105.
515At 109–110.
516At 110–112.
517Law Commission Evidence: Volume 1 – Reform of the Law (NZLC R55, 1999) at 51.
518At 51.
519Law Commission Evidence: Volume 2 – Evidence Code and Commentary (NZLC R55, 1999) at 125.
520Evidence Bill 2005 (256-1), cl 40.
521Evidence Bill 2005 (256-2) (select committee report) at 7.
522See Bruce Robertson (ed) Adams on Criminal Law – Evidence (online looseleaf ed, Brookers) at [EA44.01].