Test for ban on questioning of rape accusers tested
Clare Dyer, legal correspondent
Tuesday December 12, 2000
Guardian Observer (UK)
A new law which bars defence lawyers from questioning women who accuse men of rape about their sexual history is to be challenged as a breach of human rights, in a move which could put rape trials throughout England and Wales on hold.
Lawyers for a 26-year-old student asylum seeker charged with raping a 25-year-old arts teacher are to challenge a ruling by an Old Bailey judge banning cross-examination of his accuser about their alleged sexual relationship.
The case is the first to raise the argument that the ban on questioning a woman about her past sexual behaviour, in an attempt to show she consented to sex, breaches the man's right to a fair trial under article 6 of the European con vention on human rights. The convention became part of UK law in October when the Human Rights Act came into force.
The student denies raping the teacher, who claims he attacked her on a Thames towpath on June 14. He insists they had been having a sexual relationship and that she consented to sex in the bushes.
Judge Simon Goldstein gave leave to appeal "with enthusiasm" last Wednesday after ruling that he was constrained by "rape shield" provisions in the Youth Justice and Criminal Evidence Act, which had come into force two days earlier.
He added: "The sooner this is looked at the better. This problem is likely to arise in many, many cases before crown courts." Judges, lawyers, accused men and alleged victims "have to know where they stand".
The crown prosecution ser vice said it was asking for the case to be fast-tracked at the court of appeal. "This is an important point of law," said a spokeswoman. "We propose to fast-track it so it will be heard early."
"We hope we will have an early judgment because obviously it has implications for other cases as well." The trial was due to begin last Tuesday, the day after the rape shield law came into force after a long campaign by women's groups, which argued that questions about women's sexual past were irrelevant.
But the student's counsel, Emma Lowry, argued that it was impossible for him to have a fair trial because she could not quiz the woman about earlier sexual encounters with her client and he would be gagged from mentioning them in his own evidence.
Judge Goldstein said any accused had the right "for every possible issue to be put fairly and squarely before a jury" and crown courts everywhere would be left wrestling with the same dilemma. He said: "The sexual activity of a prostitute or someone as chaste as a nun will never be known because it cannot be explored."
The law deliberately removed the judge's discretion because judges so frequently allowed questioning about past sexual behaviour, despite laws designed to discourage it.
The new law is modelled on a similar law in Canada, which was challenged this year as breaching a right to a fair trial. The supreme court of Canada upheld the ban on questioning about sexual history.
The court of appeal would have to take that judgment into account in deciding whether the British act violates the right to a fair trial.