6

This question is prompted by the BBC program "Is This Rape?" which is currently on iPlayer.

The program contains a story of a fictional sexual assault, which goes to court (starts in the program at 19:07). In the fictional court a number of things happen that seem as if they might be in breach of rape shield laws. Below is a list of things that where particularly surprising;

  1. The defendant and the claimant are in the court room at the same time and apparently can see each other.
  2. The defendant talks about the past sexual activities of the claimant with the defendant.
  3. The defendant talks about the past sexual activities of the claimant with other people the defendant knows.
  4. The defendant's lawyer (might have been a lawyer, I don't know enough to tell the difference between different legal representatives) questions the claimant about past relationships with the defendant.
  5. The defendant's lawyer questions the claimant about past sexual activities with the defendant.
  6. The defendant's lawyer questions the claimant about past sexual activities with others.
  7. The defendant's lawyer questions the claimant about sexual photos sent to the defendant.

Given that this fiction is set in the UK, which of these things, if any, would not be allowed to happen in a real court? What legal rule should prevent it from occurring?

  • I think all of these would be allowed. In some situations a shield is put up around the claimant when she/he gives evidence, but only if the court thinks that the defendant could influence his/her testimony by being there. – Calchas Nov 16 '15 at 12:51
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Generally, irrespective of charge, there is no 'shield laws' in the UK legal system. Any such provisions are a matter of discretion for the judge on the same grounds as the admissibility of evidence.

Though the following case relates to a murder case rather than rape, it does provide justification for the lack of 'shield laws'.

In R v Davis [2008] UKHL 36; [2008] 1 A.C. 1128 (henceforth Davies), as described in para 3, per Lord Bingham, the witnesses were subject to extensive protective measures, as 'they claimed to be in fear forth their lives if it became known that they had given evidence against the defendant'. [Tom Bingham, The Rule of Law (2011 Penguin) 99]. The case addresses issues at the time of the original hearing.

However, more recently, there have been statutory provisions for anonymity of witnesses, specifically section 86 of the Coroners and Justice Act 2009. This enables witness anonymity orders to be made, however there are specific requirements that can be found in subsequent provisions of the Act, but there is no common or absolute protection of victims or witnesses.

A closing note regarding the 'victim' in the rape case, it should be noted that in the UK legal system, as criminal cases are brought by the CPS on behalf of the Monarch, not the victim and as such the victim is, for all intents and purposes, a witness.

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