Lawyers should be trained on 'rape myths' and complainants should be entitled to legal advice and representation on whether to grant access to their personal records, the Law Commission has recommended.
After being asked to review the law, practice and guidance on evidence in sexual offence prosecutions as part of the government's end-to-end rape review, criminal law commissioner Penney Lewis said today’s package of proposed reforms ‘strike the critical balance between supporting complainants' dignity and privacy while safeguarding defendants' right to a fair trial’.
The commission said myths, such as the presumption that rape will always be reported promptly, are detrimental to a fair and effective trial. Introducing evidence of a complainant’s sexual behaviour at trial ‘risks reliance on myths about the complainant’s credibility, consent and moral worth and subjecting them to unjustified intrusive and humiliating questioning’.
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The commission recommends ‘enhanced’ relevance thresholds to access complainants’ personal records, such as counselling notes, and to admit evidence of sexual behaviour. Complainants would have the right to independent legal advice and representation when applications are made.
Lawyers would be trained with ‘greater clarity on professional misconduct consequences of deliberate deployment of rape myths’. Guidance would be produced for judges to identify and respond to reliance on rape myths.
The CPS already has guidance for its lawyers on rape myths and misconceptions, and prosecutors receive training.
Victims' commissioner Baroness Newlove said she has long called for complainants to have access to free, independent legal advice when decisions are made about their personal records or sexual history.
'I was pleased the government committed to introducing such advocates from 2025 and this report sets out exactly how it must be delivered - through qualified, specialist lawyers, with support available in person, online and by phone. Alongside this, the report rightly makes clear that proper funding will also be essential to ensure this support is available to all complainants,' Newlove added.
Specialist courts for sexual offences trials are also recommended in the commission's report. Having considered calls for juryless trials, the commission said juries should remain.
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