NCJ Number
99358
Journal
Modern Law Review Volume: 47 Issue: 6 Dated: (November 1984) Pages: 625-649
Date Published
1984
Length
24 pages
Annotation
This paper critiques the report of the Scottish Law Commission regarding law reform pertaining to the use of sexual history evidence in rape trials; an alternative proposal by the author is derived from the 1981 New South Wales (Australia) Crimes (Sexual Assault) Amendment Act.
Abstract
After an historical comparasion of the Scottish and English rape laws, the paper focuses on the Scottish common law rules pertinent to sexual history evidence in rape cases. The Scottish Law Commission's 1983 report on evidence in cases of rape and other sexual offenses is then summarized and critiqued. Although the commission has disapproved the use of evidence on the complainant's sexual history, it instructs judges to admit sexual history evidence in a range of situations and provides judicial discretion to do so in other circumstances. The proposed statute would do little to restrict the discretion of judges who believe in admitting sexual history evidence. The commission is criticized for failing to propose a statute that would ensure anonymity for the complainant throughout the processing of a rape case. The New South Wales Crimes (Sexual Assault) Amendment Act is a possible alternative to the Scottish proposal and ways to strengthen the New South Wales act are suggested. This act is credited with providing strict limits on the judge's discretion to admit sexual history evidence in rape trials. Stronger limitations permitting the admission of sexual history evidence are proposed especially to limit confusion of the issues or unwarranted invasion of the complainant's privacy. The paper also proposes procedural reforms for rape trials. Fifty-two footnotes are listed.