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Sexual History Evidence - Beware the Backlash
journal contributionposted on 2023-06-08, 08:10 authored by Jennifer Temkin
Defends the Youth Justice and Criminal Evidence Act 1999 ss.41-43 and asserts that replacing these provisions with something akin to the previous Sexual Offences (Amendment) Act 1976 s.2 would be a retrograde step and should be vigorously resisted. Examines: (1) the historical position in the light of the House of Lords' decision in DPP v Morgan (William Anthony) and details the failings of the discretionary regime governing the admission of sexual history evidence under s.2 of the 1976 Act; (2) s.41 of the 1999 Act and the creation of a rule of exclusion with exceptions set out by specific categories; (3) s.41 in comparison with other "categories" legislation, considering whether s.41 provides potentially greater protection to defendants than other similar statutes; (4) Professor Birch's proposals in respect of the Law Commission's scheme contained in the Criminal Justice Bill 2002, the relevance of evidence of a previous sexual relationship with the accused or of the complainant's sexual past; (5) whether the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 offers a credible alternative to s.41 of the 1999 Act; and (6) prospective developments in the wake of the House of Lords decision in R. v A (Complainant's Sexual History), taking into account proposals in the Sexual Offences Bill 2003. Includes consideration of the approaches taken in Scotland, Canada, the United States and New South Wales.
JournalCriminal Law Review
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- Law Publications
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