On Sept 30, 2011, the Ministry of Law called for public feedback on the proposed amendments to certain sections of the Evidence Act.

AWARE has made a submission that relates to Section 157(d) of the Evidence Act, which makes it possible to discredit an alleged sexual assault victim through her sexual history.

While Section 157 (d) lies outside the ambit of the current proposed amendments, we believe that this law is outmoded and needs to be repealed. We also believe that effective rape shield laws should be implemented to give sexual assault victims necessary legal protection.

WHY SECTION 157(D) NEEDS TO GO

Section 157 (d) of the Evidence Act states:

“The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him:
….
(d) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”

It is not clear what is meant by the phrase “generally immoral character”. The drafting history suggests that it was originally targeted at “unchaste” women.

This means that victims of rape or attempted rape can be discredited in court on the basis of “generally immoral character”. This provision implies that a chaste woman is more likely to have lodged a legitimate claim of sexual assault while an unchaste woman is either a) an untrustworthy witness or b) likely to have consented to the defendant’s advances and then lied about it at a later date.

Generally, the main purpose of admitting prior sexual history of the complainant is to impeach the credibility of the complainant and/or to support a consent defence.

The above provision embeds a requirement that women maintain an ideal of sexual abstinence to obtain legal protection. It rests on what the Canadian Supreme Court has called the twin myths – first, that “unchaste women [are] more likely to consent to intercourse” and secondly, in any event, they are “less worthy of belief”.

This “chastity” requirement, which is based on common law, is clearly outmoded and has been reversed by statute in most common law jurisdictions i.e. USA (1974), UK (1976), Hong Kong (1978), Malaysia (1988), Canada (1992), India (2002) and New Zealand (2006).

Singapore is a laggard in this regard.

It is not the function of rape evidence law to perpetuate and enforce moral judgments on women’s sexual lives but to promote the discovery of the truth.

Where credibility is concerned, the reasoning seems to be that promiscuity is a form of dishonesty and hence lessens a victim’s credibility. The rationale is fundamentally flawed; it is biased against women and against victims.

Where consent is concerned, it is illogical and unreasonable to make any inferences about the complainant’s consent to have sex with the defendant on the basis of the complainant’s sexual conduct with other third parties. Consent is not transferable from one party to another. Consent in a rape case must be specific to the accused.

Even if it can be argued that a promiscuous woman is more likely to engage in sexual intercourse in general and is probative of her having given consent in the specific case, when an accused argues consent in rape trials, he is in fact implying that apart from consenting, the complainant also gave false testimony about the incident to the police thereafter and is lying under oath about her experience at the trial. Thus, the accused needs to prove not just a pattern of prior sexual conduct but also a pattern of prior false accusations.

In fact, research has shown that sexually experienced women are:

• Not more likely to make false accusations of rape
• Less likely to perceive non-consensual sexual encounters as rape.

Furthermore, it has also been widely observed that, at least, in jury trials, admitting evidence of complainant’s prior sexual conduct can be extremely prejudicial to the complainant, creating an unfair bias against her in the court’s decision-making process.

The complainant’s promiscuity or perceived promiscuity with third parties subverts the truth-seeking process by creating a perception of the woman as having failed to live up to a certain societal ideal of female modesty.

Finally, it is a well known fact that rape is generally one of the most under-reported crimes. In the UK, it is estimated that 75% to 95% of rape cases go unreported. In the US, it is estimated that 60% of sexual assault crimes go unreported. Rape is likely to be heavily under-reported in Singapore as well.

This is not surprising. Not only is rape an extremely traumatic experience for the victim, a victim’s decision to report the crime to the police involves a cost – social recrimination and lost privacy, with no guarantee of offender apprehension.

One barrier to reporting sexual violence is the perception that the complainant and her behaviour are put on trial, rather than that of the accused. Section 157(d) entrenches this and the risk of humiliation and loss of privacy.

It is in the public interest to repeal Section 157(d) of the Evidence Act because:

• It is based on the outmoded concept that only “chaste” women should be afforded legal protection
• The moral or immoral behaviour of a woman in general has no logical link to her credibility or to the question of whether she consented to sexual intercourse in the specific case
• Admitting evidence of a complainant’s prior sexual conduct can be extremely prejudicial to her and create an unfair bias against her in the court’s decision-making process
• It entrenches the risk of public humiliation to and scrutiny of a victim’s behaviour and deters rape reporting, which is already very low
• It codifies victim-blaming
• All or most other common law jurisdictions have already repealed this law.

A woman’s sexual history should not be used against her in a way that is discriminatory and demeaning to her. The existence of this section and the spectre of a woman’s sexual history being used against her add further obstacles to the reporting of rape crimes.

Finally, the Evidence Act already contains general provisions in Sections 150, 153 and 154 which impose limitations on the extent to which counsel can attack the character of a witness. The problem is that Section 157(d) explicitly gives the accused the right to attack the creditability of the victim of rape or attempted rape by showing that she is of “generally immoral character”. It is arguable that the explicit provision in Section 157(d) is not limited or excluded, by implication, by Sections 150, 153 and 154.

IMPLEMENT RAPE SHIELD LAWS

Rape Shield Laws are laws which prescribe or guide when and how previous sexual conduct could be used by a defendant at trial. Many common law jurisdictions have enacted Rape Shield Laws, including Canada, Malaysia, Hong Kong, New Zealand, UK and USA.

These provisions were implemented to reduce the trauma and humiliation that a rape victim may face in court, to encourage the reporting of rape and to prevent misleading evidence from being adduced in court.

Even with the offending section 157(d) repealed, counsel for the accused is normally given a wide latitude to attack the general credit and credibility of the complainant. The enactment of a Rape Shield Law would make it clear that the latitude given in cross examination does not extend to sexual history unless it is sufficiently relevant to the charge.

The courts had in the past increased the sentence of an accused where the defence lawyer had “annoyed, embarrassed and humiliated the victim” during cross examination. Increasing the sentence is an after-the-event deterrence: it deters others from embarking on overly intrusive cross-examination of sexual complainants. It is better to prevent such cross-examination from occurring by disallowing overly intrusive questions from being put to the complainant by Rape Shield Laws.

Read AWARE’s full submission to the Ministry of Law here.