Sexual history evidence in cases of sexual assault: A Critical Re-evaluation

Modern legal regimes have narrowed the scope of the sexual history evidence that is admissible for purposes of proving or refuting claims of consent in cases of sexual assault. Yet, under most modern regimes, similar-sexual-history evidence is still admissible. The article critically analyses the epistemic foundations of these regimes by laying down two arguments. The main argument is that, in the vast majority of cases, similar sexual history is simply irrelevant to questions of consent. First, a simple statistical analysis demonstrates that, in the class of complainants on sexual assault, imilar-sexual-history evidence is not indicative of consent. Bayesian insights are then introduced in order to reinforce the analysis and refine it by identifying one narrow exception. Next, it is demonstrated that, in light of the proposed analysis, current evidential regimes can only make sense under some highly controversial normative or factual assumptions. The secondary argument contends that some of the modern evidential regimes reflect the idea that claims of power inequalities between men and women should be at the heart of sexual assault law, rather than claims of consent or lack of it.