Sexual orientation and cross-examination in sexual offence cases

The scope of cross-examination of the alleged victims of rape and sexual assault is an important and contentious issue.  The evidence for such allegations is often based only on the testimony of the complainant and hence their credibility is often the primary issue in the case. Defence advocates wishing to explore this issue have to contend with the provisions of section 41 of the Youth Justice and Criminal Evidence Act 1999 in addition to a host of ‘special measures’ designed to make it easier for complainants to give evidence.

Section 41 of the Act limits the scope of cross-examination such that its provisions were designed to prevent advocates from ‘throwing mud’ about past sexual history. Instead, the thinking behind the legislation is that questioning must be relevant to the allegation before the Court. In simple terms, a complainant’s past sexual history will not be considered relevant to the question of her state of mind at the time of the commission of the alleged offence unless a judge permits questioning of that nature on application in advance.

Specifically, section 41 applies to trials involving sexual offences and prevents questioning about ‘sexual behaviour’ without permission of the Court. It also sets boundaries for the circumstances in which such permission can be given.

In the recent case of R v T [2021] EWCA 318 the Appellant had been convicted of the rape of his (then) wife some years previously. The wife had alleged that he had raped her on three occasions during the course of their marriage in which they had also had consensual sex (before and after the alleged rapes). The Appellant had denied this at trial, stating that they had only had consensual sex and he had also said in his defence statement that "‘I can only speculate’ that the making of the allegations ‘may be a way of seeking validation for any change in sexual orientation’”.

During the trial, the defence had sought to cross-examine the complainant about this – in effect seeking to suggest that a change in sexual orientation had caused her to retrospectively misinterpret whether she had consented to the sex. An application to cross-examine on this basis had been made under section 41 of the Act (above) but it was refused. The Defendant appealed on the basis that this decision rendered his convictions ‘unsafe’. However, on appeal, the Appellant sought to argue that, in fact, no such application had been required because sexual orientation should not be classified as ‘sexual behaviour’ in this case (in effect advancing a new case).

The Court of Appeal rejected the appeal on a number of grounds.

• Firstly, that the proposed questioning was ‘generalised’; and thereby precluded by section 41(6), (i.e. it did not relate to evidence based specific instances of behaviour)
• Secondly, section 41 precludes cross-examination where the purpose is to impugn the credibility of the complainant (when this was the very basis that the Appellant sought to argue that section 41 did not apply)
• Thirdly, the proposed questioning was purely speculative to the extent that it had no evidential basis
• Finally, It was not relevant to the issue in the case. As the judge had pointed out, the complainant's own evidence at trial had been throughout the marriage she had engaged in consensual sex with the appellant; and indeed had wanted a baby.

Importantly, the Court did not rule out the prospect of sexual orientation being a relevant issue for questioning on the basis that each case is fact specific. However, the decision of the Court is an important reminder of the importance of ensuring that there is a proper basis for the cross-examination of complainants over any issue relating to sexual behaviour which is not linked to the subject incidents and that includes sexual orientation.

Brett Wilson LLP's specialist solicitors are experienced in dealing with matters regarding sexual offences.  Click here for more information.