In a sexual offence case, particularly one involving a child aged 13-16, a common question is whether other sexual experiences of the complainant can be used as part of the defence case. For example, it might be suggested that a complainant was sexually promiscuous, or had slept with another person other than the accused, and this may be relevant to the defence in a number of ways:

• The complainant may have a history of making false allegations of sexual offences against other people;
• The complainant’s promiscuity may be relevant to a defence suggestion that the complainant came onto the accused but was rebuffed, leading to the making of a false complaint;
• In an identity case, the complainant may have mistaken another sexual encounter with another person person, with the accused; &
• Previous comments a complainant has made concerning sexual experiences with another person may reveal a different offender is the culprit, rather than the accused.

The law in Western Australia is that evidence relating to the sexual experiences of a complainant cannot be adduced, or elicited in in cross-examination, by an accused unless the leave of the court has first been obtained. This law when introduced was described as a “rape shield law”. The purpose of the legislation was to prevent the use of sexual history evidence to establish the complainant was a type of person likely to consent to sexual activity; and also to prevent use of a complainant’s sexual history as an indicator of their truthfulness.

There is one exception to this which is sexual experiences of a complainant which are part of the res gestae of the proceedings. This means the circumstances which relate to a particular case. An example would be in a case involving a single alleged sexual penetration without consent, the fact the complainant slept with multiple people on the same night would be part of the res gestae.

How do I get the leave of the court to adduce evidence of a complainant’s sexual experiences?

In order to obtain the leave of the court to adduce evidence of the sexual experiences of a complainant, the following must be established:

• the evidence sought to be adduced has substantial relevance to the facts in issue; &
• the probative value of the evidence sought to be adduced outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

So, for example, evidence of general promiscuity of a complainant might not meet the criteria because such evidence goes both ways. That is, it can support the State case but also the defence case. On the other hand, evidence that a complainant had previously made a proven false sexual assault allegation might meet the test  because it is substantially relevant to the complainant’s credibility, and questions could be asked in a manner that avoided any distress or humiliation the complainant might suffer from the line of questioning.

Recently, James Jackson successfully obtained to leave to question a complainant about another sexual experience where the issue was identity, and proof of the prior sexual experience tended to suggest the complainant had mistakenly identified the client, particularly because the other sexual experience was remarkably similar to the one that was currently being alleged.

It has been held by the Court of Appeal that questions can be asked of a complainant concerning the extent of their sexual knowledge, which is not evidence of sexual experiences. This might be relevant in cases where sexual offending is alleged but the defence can establish a complainant has no relevant sexual knowledge, despite allegedly having been a victim of a sexual offence.

Conclusion

In an appropriate case, evidence of a complainant’s sexual experiences can be adduced by the defence. However, the leave of the court is required, and the evidence must be substantially relevant to the facts in issue. The law is complex, and it is also a tactical decision as to whether to adduce such evidence.

If you require expert advice on whether to adduce evidence of other sexual experiences in your case, please contact James Jackson Criminal Defence.