The Law Commission’s “Structured Discretion” Rape Shield: A Critique

Taking up a Chapter of its own in the Law Commission’s mammoth Evidence in Sexual Offences Prosecutions Consultation Paper are proposals to reform the admissibility rules for sexual behaviour (née sexual history) evidence (SBE). Though the Law Commission argues that its cornucopia of reform proposals be considered holistically, the reforms to the use of SBE deserve individual scrutiny given their particularly contentious status amongst practitioners, academics, and the public. The current rules, found in ss.41-43 of the Youth Justice and Criminal Evidence Act 1999, have long been argued to be unsatisfactory and, after considering the vast literature on s.41 (including doctrinal, theoretical, empirical, and comparative work), the Law Commission agrees. This article critically considers these proposals to the admissibility of SBE, arguing that they are conceptually and doctrinally muddled, and fail to achieve the stated aims of better protecting both the defendant’s fair trial rights and the complainant’s privacy rights