Restrictive legislation prohibiting the cross examination of sexual offence complainants about their previous sexual behaviour is a common feature of most Common Law jurisdictions. The current mechanism by which this line of questioning is restricted in England and Wales is section 41 of the Youth Justice and Criminal Evidence Act 1999, which prima facie prohibits such questioning save for four limited exceptions. Yet the sustainability of s.41 has been called into question, Harriet Harman MP has proposed an amendment to the Domestic Violence and Abuse Bill currently before Parliament that would see the prohibition of questions about sexual behaviour with third parties. A number of academic commentators go further and suggest the similarity clause within s.41(3)c(i), which allows evidence of the complainant’s sexual behaviour to be included should it be “so similar” to their behaviour at the time of the alleged offence, should also be removed. It will be argued, however, that legislative reform relating to both third party evidence and the similarity gateway is unnecessary, instead there is much more to be gained by focusing on the broader application of s.41, addressing both procedural inconsistencies and “rape myths” that have potential to operate notwithstanding legislative protections.
Corresponding author. Polly Green: firstname.lastname@example.org
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