Is the jury out on sexual history evidence? The impact of sexual history evidence on mock jury deliberations in rape trials

Evidence about a rape complainant’s previous sexual history is restricted in English and Welsh trials, due to the risk it could be used incorrectly by barristers to assert that: i) women who have previously consented to sex are more likely to consent in future, and ii) women considered ‘promiscuous’ are not credible witnesses (R v Seaboyer, 1991). However, research such as Smith (2018a) demonstrates that restrictions are routinely ignored, meaning such evidence remains prevalent, causing complainant’s distress. Despite high profile calls for reform, there is limited evidence as to whether sexual history evidence adversely impacts on the jury. We currently rely on two significantly outdated studies internationally which were limited in scope. This PhD is the first in England and Wales to examine the impact of sexual history evidence on juries. As research with ‘real’ juries is prohibited, this thesis utilises mock jury simulations to explore the impact of previous sexual behaviour with the defendant on mock juror deliberations. 18 mock juries (comprising 119 participants overall), were conducted, using volunteer community participants who observed one of nine mini rape trial recreations, in which the nature of sexual history evidence was adapted, as was the level of consistency in the complainant’s account. Quantitative findings demonstrate lower perceptions of complainant believability and higher defendant believability when sexual history evidence was introduced; with this impact being most pronounced where the complainant was least consistent. Qualitative analysis of jury discussions showed that whilst some jurors acknowledged the potentially prejudicial nature of sexual history evidence, endorsement of rape myths about sexual history remained routine. These prejudicial narratives were typically subtle in nature but tied closely to heteronormative ideals and speculation of complainant credibility. The thesis concludes that sexual history evidence continues to prejudice jurors in England and Wales, thus highlighting the need for further research and adding to the growing body of evidence calling for policy reform.