Evidence

Last udpated May 2010

 

Evidence

 

Legislation on criminal sexual assault should state that it is unlawful to require corroboration of the survivor’s evidence.  See: Criminal Code (1974) of Papua New Guinea; UN Handbook 3.9.7.1.

 

Legislation should create an assumption of the survivor’s credibility.  See: UN Handbook 3.9.7.1.

 

Legislation should provide that a court may not distinguish between the weight given to the testimony of a complainant, including a minor complainant, in a sexual assault case and the weight given to the testimony of any other witnesses.  See: Combating of Rape Act, No. 8, (2000) of Namibia, Art. 5; Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) (2007) of South Africa, Ch. 7, sec. 60; the Pennsylvania, USA Consolidated Statutes Crimes and Offences Act (Title 18), §3106; and UN Handbook 3.9.7.1.

 

Legislation should allow prosecution in the absence of a complainant/survivor where the complainant/survivor is not able or does not wish to give evidence.  This is sometimes called absent victim prosecution. The complainant/survivor should be kept informed of all stages of the court proceedings.  See: UN Handbook 3.9.5.

 

Legislation should prevent the introduction of the survivor’s sexual history in both civil and criminal proceedings either during the trial or during the sentencing phase where it is unrelated to the case (sometimes called a “rape shield law”). Many victims of rape and sexual assault have felt re-victimized when questioned by defense attorneys about details of their private sexual conduct.  Rape shield laws are designed to prevent introduction of a victim’s sexual behavior that is unrelated to the acts that are the subject of the legal proceedings.  See: UN Handbook 3.9.7.2; Report of the Intergovernmental Expert Group Meeting to Review and Update the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, 15 (e); and  “The Legal Response to Violence against Women in the United States of America: Recent Reforms and Continuing Challenges,” by Sally F. Goldfarb, a paper for the United Nations expert group meeting on good practices in legislation on violence against women, 2008. p. 10.

 

Canada’s approach is to state that:

 

evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

The judge, under Canadian law, must determine that the evidence is about specific incidents of sexual activity, is relevant to the issue at trial, and that it has “significant probative value” that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Article 276 of Canada, Criminal Code (R.S.C. 1985. c. C-46) as amended by R.S., 1985, c. 19 (3rd Supp.), s. 12; 1992, c. 38, s. 2; 2002, c. 13, s. 13.  See: Respect, Protect and Fulfill: Legislating for Women’s Rights in the Context of HIV/AIDS (2009), Volume 1, Module 1, page 1-24, for additional factors in determining admissibility of evidence.

 

The Combating of Rape Act, No. 8, (2000) of Namibia states that no evidence about the complainant’s previous sexual activity may be allowed unless the court determines that it:

 

(a) tends to rebut evidence that was previously adduced by the prosecution;

or

(b) tends to explain the presence of semen or the source of pregnancy or

disease or any injury to the complainant, where it is relevant to a fact in

issue; or

(c) is so fundamental to the accused’s defence that to exclude it would

violate the constitutional rights of the accused:

Provided that such evidence or questioning has significant probative value that is

not substantially outweighed by its potential prejudice to the complainant’s

personal dignity and right of privacy. Art. 18

 

Promising practice:  USA Federal Rule of Evidence 412, which allows for rape shield laws in both civil and criminal proceedings.

 

Legislation should provide that if late applications for admissibility of a victim’s previous sexual history are allowed, an adjournment must occur in order that the prosecution has the opportunity to explain the situation to the victim and to review the state’s position on the relevancy of the evidence.

 

See more provisions on evidence in Rights of survivors.

 

 

Personal records

 

Legislation should provide that no records of personal information shall be admissible in sexual assault proceedings, unless the survivor or witness to whom the record relates has consented in writing to the disclosure of the personal record. Article 278.1 of Canada, Criminal Code (R.S.C. 1985, c. C-46) as amended by 1997, c. 30, s. 1 defines a “record” as follows:

 

“record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

 

 

Medical and forensic evidence

 

Legislation should mandate the timely testing, collection, and preservation of medical and forensic evidence.

 

Legislation should state that a survivor, including a minor survivor, may receive a medical and forensic examination regardless of whether or not the survivor reports to law enforcement.  In countries with mandatory reporting laws, legislation should require mandatory reporters to provide a full explanation of laws and policies to the survivor when a report is required.

 

For example, The Violence Against Women Act (2005) of the United States  requires states to certify that victims of sexual assault are not required "...to participate in the criminal justice system or cooperate with law enforcement in order to be provided with a forensic medical exam, reimbursement for charges incurred on account of such an exam, or both." (42 U.S.C.A. § 3796gg-4 (d) (1)

 

Legislation should state that the survivor, including a minor survivor, may be examined and treated by a forensic doctor or other medical practitioner without the consent of any other person.

 

Legislation should state when the survivor is referred for medical examination, the examination should be done at the expense of the state. See:  Sexual Offences Act (2003) of Lesotho, Part VI, 21 (1).

 

Legislation should state that medical and forensic evidence are not required for a sexual assault conviction.

 

Legislation should allow the presentation of expert testimony on common victim behavior on this issue. Jurors who are exposed to relevant social and psychological research on victim behavior can more accurately evaluate victim credibility. For example, many jurors may not understand that it is common for rape victims to not fight back during the rape, and to wait to report the rape. Defense attorneys may pose this behavior as unusual for rape victims, thereby undermining victim credibility. See: Turning Mirrors Into Windows? Assessing the Impact of (Mock) Juror Education in Rape Trials, 49 Brit. J. Criminology (2009).

 

For example, Pennsylvania, USA, has draft legislation as follows:

 

§5920(2)(b): In an action subject to this [sexual assault] section testimony by an expert qualified by the court regarding any recognized and accepted form of post-traumatic stress disorder and any recognized or accepted counterintuitive victim behavior shall be admissible. Pennsylvania House Bill No. 2255, 2010 Session.

 

Legislation should require protocols to store unreported evidence. Legislation should require that notice be given to the survivor regarding how long such evidence will remain viable for a report, should the survivor decide to report.

 

CASE STUDY:  Human Rights Watch Report: Testing Justice: The Rape Kit Backlog in Los Angeles City and County

 

In 2009, Human Rights Watch released the report Testing Justice: The Rape Kit Backlog in Los Angeles City and County. The report found that, as of March 1, 2009, there were over 12,000 untested rape kits in storage facilities in these locations. Rape kits are comprised of evidence which is carefully collected from the victim when the rape is reported: DNA from every part of the victim’s body touched by the rapist; photographs of injuries, including magnified photographs of tears or other injuries to the victim’s genital area; fingernail scrapings; and blood and urine samples. This evidence is sealed into a large envelope and stored with police. The evidence from the kits may not only identify the assailant, it may corroborate future testimony about the assault, or connect the assailant to other victims.

 

The report found that although victims may believe that the evidence is automatically tested, and that no word from the police meant that they could not identify the attacker, thousands of rape kits remained untested. In some cases, the kits are from cases which are now past the 10-year statute of limitations for rape in California and can no longer be prosecuted. Untested kits can also mean that rapists remain at large.

 

The report revealed that although the police and sheriff’s departments received federal funds to address the backlog of untested kits, the number of untested kits continued to grow. It found that officials sometimes delayed ordering kits to be tested when they did not believe that a crime had occurred..

 

Human Rights Watch called upon the Los Angeles Police and Sheriff’s Departments to meet US obligations under international law and ensure justice to victims of sexual violence by:

Preserving every booked rape kit until it is tested.

Enforcing policy which requires the testing of every booked rape kit.

Identifying resources needed to test each kit and pursuing investigative leads from the kits.

Prioritizing funding which is necessary to implement rape kit testing and investigation of cases.

Implementing a system to inform victims of the status of their rape kit test.

 

The Los Angeles law enforcement officials have agreed to test all rape kits in the backlog and all those collected in the future.

 

END CASE STUDY

 

See: Sections on Rights of Survivors and Survivor Services.