The Law Commission is reviewing how evidence in used in rape prosecution. Its aim is to improve the treatment of victims while ensuring defendants receive a fair trial.

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The role of the Law Commission

The Law Commission is an independent body which reviews the law to make sure it is fair, modern, simple and cost-effective. It recommends reform where appropriate. The Law Commission recently announced it will be reviewing how evidence is used in rape prosecutions. This is part of the government’s rape review.

What is the Law Commission reviewing?

In particular, the Law Commission will consider the following four areas.

1. Sexual history

The provisions governing the restriction of questioning on a complainant’s sexual history will be reviewed. Currently, a complainant’s sexual history can only be admitted to court in limited circumstances. The Commission will review the rules to check that only relevant evidence is included at trial.

2. Medical and counselling records

At the moment, there is a test to see whether or not a complainant’s medical/counselling records should be admitted at trial. The Commission will check whether this test is stringent enough.

3. Misconceptions

The Commission will review how the law and guidance could counter a juror’s misconceptions about sexual harm. In this context, misconceptions are often called rape myths. These might influence a juror’s opinion as to why the victim delayed reporting the incident, an apparent lack of resistance or injury, and differing behaviours after an assault.

4. Special measures

Finally, the Commission will consider how special measures protect complainants during a trial. Special measures are alternative arrangements for giving evidence. They are widely used in rape prosecutions. The Commission will examine whether more could be done to prevent the quality of the evidence being diminished.

Ensure defendants receive a fair trial

The Law Commission is examining these four areas and will make recommendations where it feels appropriate. The Commission’s ultimate aim is to:

  • Increase understanding of consent and sexual harm
  • Improve the treatment of victims
  • Ensure defendants receive a fair trial

The Law Commissioner for Criminal Law said: “our project will consider how to improve the trial process to address ‘rape myths’, admit only relevant evidence and better protect complainants whilst ensuring a fair trial for defendants.”

Rape review

The government asked the Law Commission to carry out this review due to the fall in the number of rape prosecutions. There is concern that victims are deterred from reporting offences, or supporting a prosecution, for fear of going to court. The review will be conducted alongside other projects that also aim to increase protections against violence and abuse of females.

The Law Commission’s provisional proposals will be published in the summer of 2022, with a final set of recommendations to be published in 2023.

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