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In a survey set out by Amnesty International, they found that 1 in 3 people blame a woman for being raped. However, up to 50% of sexual assault victims experience ‘tonic immobility’ during the assault, which is a natural state of paralysis induced by trauma. In this article we have explored the issue of consent, and how previous sexual history of a victim can play a pivotal role for the jury the jury to convict or exonerate the perpetrator.

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The issue of consent here is that while the victim may have had the capacity to physically fight the abuser and the freedom to verbally express their lack of consent, they may not have had the mental freedom or capacity during their state of trauma to show their lack of consent.

In the case of R v Evans a rare decision was made to hear the details about the claimant’s previous sexual history under Section 41 of the Youth Justice and Criminal Evidence Act 1999.

The section was permitted to be used due to the complainant stating that she had no memory of the intercourse. The account also presented to the jury met the specific criteria of the section. This was due to the similar nature of the complainant’s behaviour while having sexual intercourse with another two men.

The claimant did so by requesting “doggy style” from both Evans and the other two men. Judge Lady Justice Hallett believed that this was enough of a coincidence to raise the issue of her consent and allowed her previous sexual history to be heard in trial.

While the Court of Appeal stressed how rarely the application of a person’s previous sexual history will succeed within a rape trial, Chief Executive of Women’s Aid Polly Neate believed that this case would further prevent women from coming forward about being raped as she stated

a woman’s past sexual history bears no relevance on whether or not they have been a victim of rape. There is a need to challenge pervasive cultural assumptions that equate a woman’s former sexual history with her likelihood of being a victim of rape.

The issue with the consent in sexual offences

The issue here is that the lack of clarity surrounding the definition of consent has had a chilling effect. In this instance, the focus was to prove that the victim had freedom,  and capacity to choose her desired sexual position. By stating that she wanted to have intercourse “doggy style” gave the defendant reasonable belief that she consented. 

However, the dispute here was that while she may have been able to show her freedom by specifying her desired sexual position she mentally did not have the capacity to understand the incident taking place due to being intoxicated.

Concluding remarks

The outcome of this case has raised the issue and a clear public divide in opinion as to whether engaging in sexual intercourse with those that are so intoxicated should or should not amount to rape and if it was the correct decision to allow her previous sexual history to be heard.

While the law values itself in being un-personal and dispassionate, unfortunately, the law can occasionally become personal for the victim. It is arguable that the law is so fair it’s unfair as the defendant receives the luxury of not having his past brought to light yet the claimant is not always guaranteed that security as shown in R v Evans.

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