Chapter 7
Evidence of sexual experience of complainants
in sexual cases

Sexual experience of the complainant with the defendant

7.13 In a recent publication covering issues arising from the investigation and prosecution of sexual offences, Elisabeth McDonald and Yvette Tinsley have said:523

One current challenge is subjecting evidence of the sexual experience of the complainant with the particular defendant to appropriate scrutiny – in a way that reduces the prejudice to the complainant but does not prevent fairness to an accused.

7.14A Ministry of Justice Discussion Document in 2008 noted that New Zealand is one of the few jurisdictions where evidence of sexual history between the complainant and the defendant is allowed, even if it can be objected to. In most jurisdictions, the approach is to generally prohibit such evidence but allow it to be admitted where the judge is satisfied of its relevance. The Discussion Document noted that there is debate as to the relevance of evidence of prior sexual history between the complainant and the defendant, with some arguing that such evidence should not lead to an implication that a person automatically agrees to the sexual activity on another occasion and others arguing that the existence of a prior sexual relationship between the complainant and the defendant will often be relevant.524
7.15The Ministry’s Discussion Document proposed amending the Evidence Act to make all evidence about the sexual experience of the complainant with any person, including the defendant, inadmissible except with the consent of the judge.525
7.16A “halfway house” option would be to adopt the provision recommended by the Law Commission in s 46(2) of the Evidence Code. As noted above, that provision would have required any question about the sexual experience of the complainant with the defendant to be of “direct relevance to facts in issue in the proceeding”. The fact that the evidence would not be subject to a leave requirement (unlike other sexual history evidence) would depend on defence counsel considering the evidence in light of the rule and the willingness of the prosecution to object.526

7.17With respect to the proposal put forward in the Ministry’s 2008 Discussion Document, we do not support the extension of the “rape shield” to relationships between the defendant and the complainant. Cases involving such a prior relationship will almost always turn on the question of consent or belief in consent. Almost inevitably, the existence of a prior sexual relationship will be relevant to this question.

7.18For this reason, an application for leave to cross-examine the complainant on the prior relationship could reasonably be expected to be made in the vast majority of cases involving a prior relationship between the complainant and the defendant, thereby inevitably increasing the number of pre-trial applications and appeals. This would add to delays, which in our view, compounds rather than alleviates problems for complainants.

7.19Further, we think that as a matter of principle, leave requirements should be confined to matters that are the exception rather than the norm. If we are right in thinking that evidence as to the fact of the prior relationship will be relevant and admissible in the vast majority of cases, it follows that a leave requirement is undesirable.

7.20We are not inclined to recommend amendment along the lines of the “half-way house” originally suggested by the Law Commission. Arguably, this would do little more than reinforce the existing ability of the prosecution to object to irrelevant evidence (in the unusual circumstance of the prior relationship of the complainant with the defendant not being relevant to the issues at trial).

7.21It has been argued that there is a difference between the relevance test in s 7 of the Act and the “heightened relevance” requirement in s 44(3) that will lead to evidence that is admissible under s 7 being held inadmissible under s 44(3).527  While s 44(3) is on its wording a stricter test, we do not consider that there will be a difference in outcome as regards admissibility in the vast majority of cases. As made clear above, we consider that in most cases involving a prior sexual relationship, evidence of that relationship will be directly relevant to issues before the court and therefore would be admissible under s 44(3).
7.22Finally, the Law Commission’s “half-way house” proposal was specifically rejected by the drafters of the Bill and the Select Committee. As we have said elsewhere in this report, this review is not the proper vehicle for a reassessment of policy on a first principles basis.528
523See Elisabeth McDonald and Yvette Tinsley “Evidence Issues” in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) 279 at 336.
524Ministry of Justice Improvements to Sexual Violence Legislation in New Zealand: Public Discussion Document (Wellington, 2008) at 24.
525At 25.
526McDonald and Tinsley, above n 523, at 336.
527At 338.
528See paragraph 1.30.