Authored By: Liv Hesson
University of York
Introduction
The regulation of sexual history evidence in rape trials has long been a contentious issue in both the United Kingdom and the United States, where lawmakers have sought to balance the fair trial rights of the accused with the protection of complainants from prejudicial and irrelevant scrutiny through various “rape shield laws,” which limit the admissibility of a complainant’s sexual history in sexual offence trials. In the UK, as early as 1887, the judiciary recognised that a complainant’s past sexual behaviour with third parties was immaterial to the issue of consent. As Lord Coleridge declared in R v Riley,1“evidence that she has previously had connection with B and C is obviously not in point.”2 Despite this early judicial clarity, English courts came to admit such evidence with increasing frequency,3 and reform under the Sexual Offences (Amendment) Act 19764“did little to stem the flow of sexual history evidence being admitted.”5
Later, through the Youth Justice and Criminal Evidence Act 1999 (YJCEA) and the introduction of section 41, Parliament established a general rule of exclusion, along with narrow exceptions and “no overriding judicial discretion.”6 These reforms aimed to tackle the so-called “twin myths”7that sexually active women are more likely to consent and less credible as witnesses.8 As McGlynn observes, however, these statutory reforms “continue to be evaded, circumvented and resisted,” raising questions about the balance between the rights of the defendant and the dignity and autonomy of the complainant.9
A similar concern underpinned the development of rape shield laws in the United States, which likewise sought to exclude prejudicial sexual history evidence. However, the US approach differs in its constitutional framing, with courts often interpreting the Sixth Amendment’s Confrontation Clause to permit such evidence where exclusion would impede a fair trial. Consequently, while many US jurisdictions also limit third-party sexual history evidence, judicial discretion remains more expansive, and courts have sometimes allowed it to challenge credibility or show alleged patterns of conduct. This article argues that while both the UK and US have implemented rape shield laws to exclude prejudicial sexual history evidence, the persistence of judicial discretion and override mechanisms in both systems systematically undermines these protections, and that meaningful reform requires procedural and cultural change within both judicial systems.
The UK Approach
The UK’s primary statutory mechanism for restricting sexual history evidence is Section 41 YJCEA,10 which generally prohibits evidence or questions about a complainant’s previous sexual behaviour unless the court grants leave under four narrowly defined exceptions.11 The restrictions do not extend to conduct that is said to have occurred during the incident forming the basis of the charge against the defendant.12 This provision, like those in other common law jurisdictions, aims to prevent the “mini-trial” of the complainant’s sexual past to remove “impediments to reporting sexual crime.”13 The statutory exceptions to these restrictions are: (1) where the evidence relates to a relevant issue and the behaviour took place at or about the same time as the event which is the subject of the charge;14 (2) where the evidence relates to a relevant issue and the behaviour is so similar to the complainant’s behaviour during the alleged offence that it cannot reasonably be explained as a coincidence;15 (3) where the evidence is necessary to rebut or explain evidence introduced by the prosecution.16
The final exception demonstrates how the promise of Section 41’s protection was systematically undermined within two years of its enactment. Despite the statute’s purposeful narrowing of judicial discretion, the Court of Appeal in R v A17 reinterpreted the provision, stating that compliance with s. 3 of the Human Rights Act18 (obligation to interpret primary legislation in a way which is compatible with Convention rights) made s. 41 unworkable.19 The decision introduced a judicial override exception: if excluding the evidence would compromise the accused’s right to a fair trial, it must be admitted, even if it would otherwise be barred under s.41 YJCEA. In R v A, the evidence in question concerned prior relations between the complainant and defendant, recognising its potential relevance to consent. However, this legal allowance can risk reinforcing the harmful myth that “once a woman is thought to have said yes to something, she can say no to nothing.”20
For instance, a defence barrister might argue that the complainant’s clothing is relevant because it supports a theory that they were seeking sexual attention, that it contradicts their reported fear of the accused,21 or that it is strikingly similar to attire worn during a prior consensual encounter with the accused.22 While this is widely criticised by feminist scholars, others have defended R v A as restoring necessary flexibility in sexual offence trials, ensuring that crucial defence evidence is not automatically excluded. Dennis, for example, argues that a rigid exclusion of sexual history evidence “may create the risk of convicting the innocent.”23 Such latitude in adducing evidence reflects courts’ attempts to balance the complainant’s protection with the accused’s Article 6 right to a fair trial under the European Convention on Human Rights (ECHR).24
From an evidentiary perspective, however, these allowances raise significant concerns. The Criminal Evidence Act and YJCEA stress that evidence must be sufficiently relevant and not unduly prejudicial,25 yet judicial practice often permits questioning that is only tenuously connected to key issues while causing serious prejudice to complainants. This evidentiary imbalance undermines the statute’s protective intent. When relevance determinations depend on a presumed general tendency to consent to sexual activity with a specific individual, they undermine the sexual autonomy of the complainant.26 This perspective fails to recognise a person’s ability to make different decisions freely at various times and that any kind of sexual activity requires context-driven, ongoing consent. Furthermore, it often reinforces harmful stereotypes that portray women as inherently sexually available.27
Although questions about clothing or behaviour are often rooted in problematic assumptions, courts may legitimately allow such questions in rare cases where they are directly relevant to disputed facts, such as fabrication or mistaken identity.28 However, cases like R v Evans29 demonstrate how courts sometimes admit evidence on grounds of similarity that arguably fail to meet the statutory test that the similarity “cannot reasonably be explained as a coincidence.” In R v Evans, the Court of Appeal permitted evidence of the complainant’s sexual behaviour with two other men, reasoning that the similarity to the alleged offence could not reasonably be explained as a coincidence, even though these similarities included the fact that she “had been drinking.”30
Allowing these forms of evidence perpetuates entrenched “rape myths,” or widely held false beliefs about sexual assault, victims, and perpetrators that function to deny or justify sexual violence and shape public and legal responses in harmful ways.31 Empirical research by Hey demonstrates that, despite Section 41’s restrictions, leave to admit sexual history evidence was granted in over two-thirds of cases, and such evidence was raised in more than 75% of trials, revealing how judicial practice has substantially diluted the statute’s protective intent.32 The R v A override, therefore, has essentially restored the pre-1999 status quo while maintaining the facade of legislative protection.
The US Approach
In the United States, the regulation of sexual history evidence occurs against a constitutional backdrop that heavily influences evidentiary rules. Federal Rule of Evidence 412 (FRE 412) serves as the overarching rape shield statute, generally excluding evidence of a complainant’s prior sexual conduct to protect against prejudice and harassment.33 The US model also emphasises that adversarial scrutiny is a vital safeguard against wrongful conviction. Under this view, excluding sexual history evidence may impair the fact-finding process, especially in “he said/she said”34 cases where context is contested. FRE 412 contains three narrow exceptions: when the evidence is (a) to prove that someone other than the accused was the source of semen or injury, (b) to show consent through prior sexual behaviour with the accused, or (c) its exclusion would violate the constitutional rights of the defendant.35
However, many critics argue that the second and third exceptions severely weaken the rule’s effectiveness.36 Since over 60% of adult sexual assaults involve known or intimate partners, the “prior sexual relationship” exception is frequently invoked.37 Combined with the constitutional override, this creates a pattern where most sexual assault cases receive little meaningful rape shield protection. Moreover, the “constitutional rights” exception under FRE 412(b)(1)(C) gives rise to broad judicial discretion, often permitting evidence that would otherwise be inadmissible, acting as a constitutional safety valve.38 But like its UK counterpart, it opens the door to abuse because anything labelled as “credibility-related” or “contextual” could potentially fit into concerns regarding a fair trial, including improper questions about dress, flirtation, or demeanour.
This discretion stems from the Sixth Amendment’s Confrontation Clause, which guarantees the accused the right “to be confronted with the witnesses against him.”39 US courts have interpreted this provision to encompass broad cross-examination rights, particularly when credibility is at issue.40 The Supreme Court’s jurisprudence demonstrates how constitutional rights systematically override rape shield protections. In Michigan v Lucas, the Supreme Court upheld the exclusion of sexual history evidence unless the defence complied with procedural notice requirements, determining that victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy.41 However, in Olden v. Kentucky, the Court held that excluding sexual behaviour evidence relating to a complainant’s affair with another man violated the accused’s confrontation rights.42 These cases establish a framework where constitutional claims routinely trump rape shield protections.
Although FRE 412 governs all federal criminal trials, each state enacts its own rape shield statute, leading to significant variability in complainant protections.⁷ States like California require in-camera hearings, or a hearing outside the presence of the jury, before sexual history evidence can be admitted, and apply strict relevance and prejudice tests.43 In contrast, states like Texas permit broader judicial discretion without necessarily requiring such hearings.44 This divergence is a phenomenon some scholars have dubbed “justice by postcode.”¹⁰ The result is a fragmented system where constitutional rights systematically override legislative protections, creating the conditions which may produce the very “mini trial” of sexual history that rape shield laws were designed to prevent.
Comparative Analysis and Reform
Both the UK and US systems demonstrate a common pattern: formal legislative protection systematically undermined by judicial override mechanisms. The success of s.41 applications has increased, and research shows judges sometimes misapply the exceptions.45 Thus, the appearance of statutory clarity does not always translate into effective protection for complainants. In the same vein, the US model prioritises individual procedural liberty, even where it permits potentially prejudicial and myth-laden cross-examination.46 That tension is especially visible in “credibility-based” questioning around appearance, demeanour, or flirtation.47
Unlike the UK, which mandates a written application and pre-trial judicial leave before any sexual history evidence is admitted,48 the U.S. federal system contains no such universal requirement. Although FRE 412 requires advance notice, it does not compel judges to conduct an in-camera hearing or formally rule on admissibility in every case.49 This absence of a consistent gatekeeping mechanism weakens the protective effect of rape shield laws, especially when combined with broad constitutional exceptions under the Sixth Amendment. As a result, complainants in the U.S. arguably face greater risks of intrusive and prejudicial cross-examination.
The systemic failure of both systems reflects, in part, judicial unfamiliarity with rape myths and trauma responses. While the empirical literature evaluating trauma-informed judicial training remains limited, existing research suggests that educating jurors and justice professionals on these issues may reduce reliance on rape myths and lead to more informed decision-making in sexual offence cases.50 Such training should include empirically grounded content on rape myths,51 the neuropsychological effects of trauma that may result in counterintuitive responses, the potential prejudicial impact of sexual history evidence on juror reasoning,52 and the legal relevance standards that govern its admissibility.53 While further empirical research is needed to measure the direct effects of such training on judicial outcomes, there is growing interdisciplinary consensus that these elements are essential for ensuring fair, trauma-informed adjudication.54
Conclusion
The regulation of sexual history evidence in sexual offence trials remains a complex, contested terrain on both sides of the Atlantic, where the rights of the accused and the protection of complainants are in constant tension. The UK provides formal restrictions on the admission of sexual history evidence that are often undermined in practice. At the same time, the US offers broader protections to the accused, which also sometimes expose complainants to inappropriately invasive or humiliating scrutiny. Crucially, neither system explored here has succeeded in neutralising rape myths through legal rules alone. Empirical studies show that juror attitudes, judicial decision-making, and defence strategies remain deeply influenced by cultural narratives around sex, consent, and credibility.55 Legal reform must therefore be supplemented with procedural safeguards, creating a comprehensive approach that addresses both the systemic legal failures and the underlying cultural attitudes that perpetuate them.56 The goal is not to eliminate all sexual history evidence but to ensure that only genuinely probative evidence is admitted through a process that respects both the rights of the defendant and the dignity of the complainant. Procedural reforms provide a practical path forward for both jurisdictions to achieve the protective purposes that their current rape shield laws have failed to deliver.
Reference(S):
Works Cited
Statute
California Evidence Code §§ 782, 793
Criminal Evidence Act 1898
Federal Rules of Evidence, Rule 412
Human Rights Act 1998
Sexual Offences (Amendment) Act 1976
Texas Code of Criminal Procedure art 38.07
United States Constitution amend VI
Youth Justice and Criminal Evidence Act 1999
Case Law
Gutierrez v State, 221 SW3d 680 (Tex Crim App 2007)
Michigan v Lucas, 500 US 145 (1991)
Olden v Kentucky, 488 US 227 (1988)
People v Munch, 45 Cal 3d 1 (1988)
R v A (No 2) [2001] UKHL 25
R v Evans [2022] EWCA Crim 158
R v Riley (1887) 18 QBD 481
R v Seaboyer [1991] 2 SCR 577
Secondary Sources
Michelle J Anderson, ‘From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law’ (2002) 70 George Washington Law Review 51
Victoria Brown, Gregory Haffner, Dana Holmstrand, Caroline Oakum and others, ‘Rape and Sexual Assault’ (2020) 21 Georgetown Journal of Gender and the Law 367
C Boyle and M MacCrimmon, ‘The Constitutionality of Bill C-49: Analyzing Sexual Assault As If Equality Really Mattered’ (1998) 41 Criminal Law Quarterly 198
Bennett Capers, ‘Deviance, Due Process, and the False Promise of Federal Rule of Evidence 412’ (2009) 38 Harvard Journal of Law & Gender 117
R Michael Cassidy, ‘Character, Credibility, and Rape Shield Rules’ (2021) 19 Georgetown Journal of Law & Public Policy 145
Ian Dennis, ‘The Human Rights Act and the Law of Criminal Evidence: Ten Years On’ (2011) 33(3) ECLR 255
Polly Green, ‘Dispelling the Rape Myths: An Evaluation of S.41 of the Youth Justice and Criminal Evidence Act 1999 in Light of Recent Reform Proposals’ (2018) 6 Legal Issues Journal 1
Hey J, Beyond R v A: Sexual History Evidence and the Reform of S. 41 (Durham University 2012) https://etheses.dur.ac.uk/5893/ accessed 23 July 2025.
Charlotte Herriott, ‘Sexual History Evidence in Rape Trials: Is the Jury Out?’ (2019) 83 Journal of Criminal Law 138
Lorna Hudspith and others, ‘The Impact of Rape Myth Education on Jury Decision Making: A Systematic Review’ (2024) 25(6) Trauma, Violence, & Abuse 4064
Neil Kibble, ‘Judicial Discretion and the Admissibility of Prior Sexual History Evidence under Section 41 of the Youth Justice and Criminal Evidence Act 1999: Sometimes Sticking to Your Guns Means Shooting Yourself in the Foot: Part 2’ [2005] Criminal Law Review 263
Clare McGlynn, ‘Rape Trials and Sexual History Evidence: Reforming the Law on Third-Party Evidence’ (2017) 81(5) Journal of Criminal Law 367
Eva McKinsey and others, ‘Trauma-Informed Judicial Practice from the Judges’ Perspective’ (2022) 106(2) Judicature 30
Peter Rook and Robert Ward, Sexual Offences: Law and Practice (5th edn, Sweet & Maxwell 2016)
H Schwartz, ‘Sex with the Accused on Other Occasions: The Evisceration of Rape Shield Protection’ (1994) 31 Criminal Reports (4th) 232
Olivia Smith and Tina Skinner, ‘How Rape Myths Are Used and Challenged in Rape and Sexual Assault Trials’ (2017) University of Leicester Centre for Hate Studies
Ann-Marie Sous, ‘R v Evans: An uneasy precedent?’ (2020) 5 LSE Law Review 90, 92.
Deborah Tuerkheimer, ‘Incredible Women: Sexual Violence and the Credibility Discount’ (2017) 166 University of Pennsylvania Law Review 1
Deborah Tuerkheimer, ‘Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm’ (2024) University of Illinois Law Review 55
Jennifer Temkin, ‘Sexual History Evidence – Beware the Backlash’ [2003] Criminal Law Review 217
Law Commission, Evidence in Sexual Offences Prosecutions (Consultation Paper No 257, 2023)
Kelly, Temkin and Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials
http://217.35.77.12/research/england/justice/rdsolr2006.pdf accessed 18 July 2025
Martha R Burt, ‘Cultural Myths and Supports for Rape’ (1980) 38(2) Journal of Personality and Social Psychology 217
1 R v Riley (1887) 18 QBD 481, 483.
2 R v Riley (1887) 18 QBD 481, 483 (Coleridge LJ), cited in Clare McGlynn, ‘Rape Trials and Sexual History Evidence: Reforming the Law on Third-Party Evidence’ (2017) 81(5) J Crim L 367, 368.
3Jennifer Temkin, ‘Sexual history evidence – beware the backlash’,Criminal Law Review, 2003, April, 217-242, 220.
4Sexual Offences (Amendment) Act 1976, s. 2.
5 McGlynn (n 1) 368.
6 McGlynn (n 1) 368.
7 Law Commission, Evidence in Sexual Offences Prosecutions (Consultation Paper No 257, 2023) para 5.5.
8 R v Seaboyer [1991] 2 SCR 577, 634 (McLachlin J), cited in McGlynn (n 1) 369.
9 McGlynn (n 1) 368.
10 Youth Justice and Criminal Evidence Act 1999, s. 41.
11 YJCEA 1999, ss 41(3) and 41(5).
12 Ibid, s.42.
13 Kelly, Temkin and Griffiths, Section 41: an evaluation of new legislationlimiting sexual history evidence in rape trials, < http://217.35.77.12/research/england/justice/rdsolr2006.pdf>, [accessed 18 July 2025], p.61.
14 YJCEA, s.41(3)(a).
15 Ibid, s.41(3)(b).
16 YJCEA, s.41(5).
17 R vA (no 2) [2001] UKHL 25.
18 Human Rights Act 1998 s. 3(1).
19 Neil Kibble, ‘Judicial discretion and the admissibility of prior sexual
history evidence under section 41 of the Youth Justice and Criminal
Evidence Act 1999: sometimes sticking to your guns means shooting
yourself in the foot: Part 2′, Criminal Law Review, 2005, April, 263-274, p.264.
20 Michelle J Anderson, ‘From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law’ (2002) 70 George Washington Law Review 51, 1.
21 YJCEA 1999, s.41(5).
22 Ibid, s.41(3)(b).
23 Ian Dennis, ‘The Human Rights Act and the Law of Criminal Evidence: Ten Years On’ (2011) 33(3) ECLR 255, 263.
24 Polly Green, ‘Dispelling the Rape Myths: An Evaluation of S.41 of the Youth Justice and Criminal Evidence Act 1999 in Light of Recent Reform Proposals’ (2018) 6 Legal Issues J 1, 9.
25 Criminal Evidence Act 1898, s 3.
26 C Boyle and M MacCrimmon, ‘The Constitutionality of Bill C-49: Analyzing Sexual Assault As If Equality Really Mattered’ (1998) 41 Criminal Law Quarterly 198, 223.
27 H Schwartz, ‘Sex with the Accused on Other Occasions: The Evisceration of Rape Shield Protection’ (1994) 31 Criminal Reports (4th) 232.
28 Peter Rook and Robert Ward, Sexual Offences: Law and Practice (5th edn, Sweet & Maxwell 2016) paras 7- 059–7-062.
29 R v Evans [2016] EWCA Crim 452.
30 Ann-Marie Sous, ‘R v Evans: An uneasy precedent?’ (2020) 5 LSE Law Review 90, 92.
31 Martha R Burt, ‘Cultural Myths and Supports for Rape’ (1980) 38(2) Journal of Personality and Social Psychology 217, 217.
32 Jennifer Hey, Beyond R v A: Sexual History Evidence and the Reform of S. 41 (Durham University 2012) https://etheses.dur.ac.uk/5893/ accessed 23 July 2025, 108.
33 FRE 412, Federal Rules of Evidence, 28 USCA (West 2022).
34 Deborah Tuerkheimer, ‘Incredible Women: Sexual Violence and the Credibility Discount’ (2017) 166 University of Pennsylvania Law Review 1, 3.
35 FRE 412(b)(1).
36 Bennett Capers, ‘Deviance, Due Process, and the False Promise of Federal Rule of Evidence 412’ (2009) 38 Harvard Journal of Law & Gender 117, 1178–87.
37 US Department of Justice, Criminal Victimization 2021 (Bureau of Justice Statistics, 2022) 4.
38 R. Michael Cassidy, Character, Credibility, and Rape Shield Rules, 19 GEO . J.L. & P UB. P OL’ Y 145, 146 (2021), 158.
39 US Const amend VI.
40 R. Michael Cassidy, Character, Credibility, and Rape Shield Rules, 19 GEO . J.L. & P UB. P OL’ Y 145, 146 (2021), 158.
41 Michigan v Lucas 500 US 145 (1991), 149-150.
42 Olden v Kentucky 488 US 227 (1988).
43 California Evidence Code §§ 782, 793; People v Munch 45 Cal 3d 1 (1988) 9–10.
44 Texas Code of Criminal Procedure art 38.07; Gutierrez v State 221 SW3d 680 (Tex Crim App 2007) [45]– [47].
45 Olivia Smith and Tina Skinner, ‘How Rape Myths Are Used and Challenged in Rape and Sexual Assault Trials’ (2017) University of Leicester Centre for Hate Studies.
46 Victoria Brown, Gregory Haffner, Dana Holmstrand, Caroline Oakum et al., Rape and Sexual Assault, 21 GEO . J. GENDER & L. 367, (2020), 414-415.
47 Deborah Tuerkheimer, ‘Incredible Women: Sexual Violence and the Credibility Discount’ (2017) 166 UPa L Rev 1, 10.
48 YJCEA 1999, ss. 41–43.
49 FRE 412(c)(2).
50 Lorna Hudspith and others, ‘The Impact of Rape Myth Education on Jury Decision-Making: A Systematic Review’ (2024) Trauma, Violence, & Abuse 25(6), 4064, 4074 https://doi.org/10.1177/15248380241270082.
51 Ibid.
52 Michelle J Anderson, ‘From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law’ (2002) 70 Geo Wash L Rev 51, 106.
53 Deborah Tuerkheimer, ‘Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm’ (2024) University of Illinois Law Review 55, 105.
54 Eva McKinsey and others, ‘Trauma-Informed Judicial Practice from the Judges’ Perspective’ (2022) 106(2) Judicature 30, 35.
55 Charlotte Herriott, ‘Sexual History Evidence in Rape Trials: Is the Jury Out?’ (2019) 83 Journal of Criminal Law 138, 146.
56 Deborah Tuerkheimer, ‘Incredible Women: Sexual Violence and the Credibility Discount’ (2017) 166 UPa L Rev 1, 35.
