Law Commission to review the trial process for sexual offences

The Law Commission will review the law, guidance and practice relating to the trial process in prosecutions of sexual offences – including rape – and consider the need for reform. The project, which arises from the Government’s 2021 rape review, aims to increase understanding of consent and sexual harm and improve the treatment of victims, while ensuring that defendants receive a fair trial. In the project, the Commission will:

• Review whether reform of the provisions which restrict the use of evidence of complainants’ prior sexual history is needed
• Review the rules relating to the use of the complainant’s medical and counselling records during a trial
• Consider how law and guidance can counter jurors’ misconceptions about sexual harm (“rape myths”) in relation to the credibility, behaviour and experience of complainants and defendants
• Review the availability of special measures – alternative arrangements for giving evidence – to protect complainants during the trial

Professor Penney Lewis, the Law Commissioner for Criminal Law, said:

“Victims of sexual offences can be deterred from reporting the offence or supporting a prosecution if they fear the experience of going to court. 

“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.”

Justice Minister Victoria Atkins said:

“It is vital victims of rape and sexual violence have confidence in the justice system and are treated with the utmost fairness in court.

“This important review will look closely at how to improve the trial process – ensuring only relevant evidence is used and that damaging misconceptions about these crimes are consigned to the past.

“We’re grateful to the Law Commission for carrying out this work, which builds on the Government's action plan to transform the response to rape and increase the volume of cases going through the system.” 

Need for the project

The Government has asked the Law Commission to conduct this project, following clear evidence in the Government’s “Rape Review”, published in June 2021, that the number of prosecutions for rape has declined since 2016/2017 despite the prevalence of sexual crimes remaining steady. This has led to public disquiet and campaigns for legal change to reverse the trend and better protect complainants.

This project aims to increase protections against violence and abuse of women and girls, working in combination with other Law Commission projects including:

• recent recommendations to extend the offences of stirring up hatred to cover stirring up hatred on the grounds of sex or gender (to tackle extremist misogynistic “incel” ideology).
• recommendations to protect against cyberflashing and rape threats.
• Our ongoing project on intimate image abuse: the taking, making and sharing of intimate images without consent.

Scope of the project

The Law Commission’s project will, among other areas, consider the following:

Misconceptions: This includes misconceptions about the reasons why complainants delay reporting sexual assault and other behaviours following assault and the relevance of a lack of resistance or injury. The Commission will examine ways of countering misconceptions including the judge’s directions to the jury, whether the prosecution should be permitted to rely on expert evidence to dispel “rape myths” and alternative means of improving juror education.

Use of evidence: For evidence of the complainant’s sexual history, the Law Commission will review the current provision which allows the admission of this evidence in limited circumstances to ensure only relevant evidence is admissible at trial.

For the use of the complainant’s medical and counselling records, the Commission will consider whether the test for releasing such information needs to be more stringent and the risks that a jury gives too much weight to this information, reaching a conclusion based on a misconception.

Special measures: Special measures are adaptations to ordinary trial proceedings in order to maximise the quality of the evidence given by a witness. In the context of sexual assault and rape cases, they protect complainants by making it easier to give evidence. This can include giving evidence behind a screen or via video-link or giving evidence in private without the public there.

In the project, the Commission will consider whether special measures provisions should be reformed to prevent the quality of the complainant’s evidence from being diminished by the experience of giving that evidence.

Next steps

The next step is for the Commission to publish a short background paper on the issues and need for reform. This will be followed by a consultation paper containing provisional proposals for reform in summer 2022.

Following the consultation period, a final report with recommendations for reform will be published in mid-2023.