Rape accused’s attempt to question complainer about sado-masochistic sexual past rejected

However, a judge in the High Court of Justiciary did grant the application to the limited extent of allowing the accused to elicit evidence that the complainer had stayed overnight at the parties’ house on an occasion after the couple had separated, and had consensual sex.

Lord Turnbull heard that the applicant “JG” had been indicted for trial in the High Court on five charges: three of which were charges of the rape of his then partner “KL” contrary to section 1 of the Sexual Offences (Scotland) Act 2009; one statutory breach of the peace charge of shouting, swearing and threatening her; and a charge of attempting to pervert the course of justice by telling KL to make a false report to the police and incriminate her ex-partner for publishing intimate images of her online without her consent.

The court was told that the accused and the complainer were in a relationship between around May and December 2016 and had jointly purchased and moved into a house together, and that prior to the end of their relationship the complainer fell pregnant to the accused and had their child in May 2017.

On about 28 December 2016 the complainer told her mother, a serving police officer, about the accused’s conduct towards her, following which police officers attended at the complainer’s home.

Although the complainer mentioned being raped by the accused to a police officer on 28 December, she did not wish to make a formal complaint at that stage.

On 31 December she told police that she had exaggerated the situation in her earlier discussion, and it was not until 1 September 2017 that she made a formal complaint to the police.

The accused appeared on petition in March 2018 and was indicted to a preliminary hearing on 28 February 2019, when the court was advised that sensitive enquiries were ongoing which might lead to an application being made under section 275 of the Criminal Procedure (Scotland) Act 1995, which provides for exceptions to the rule that the court will not allow questioning designed to elicit evidence that a complainer has previously engaged in sexual behaviour not forming part of the subject matter of the charge.

But the application was not lodged until 6 June 2019, which led to the trial diet fixed for 17 June 2019 being adjourned until 19 September, with a further continued preliminary hearing scheduled for 5 September to consider the application.

The application sought, among other things, authority to admit evidence of sado-masochistic sexual conduct engaged in by the complainer with other individuals, in particular her former partner “DB” over a number of years prior to her meeting the accused, during the course of their relationship, and after it had come to an end.

Images of the complainer and DB engaged in intimate sexual conduct had been published on associated websites.

Section 275B of the 1995 Act provides that an application shall not, unless on special cause shown, be considered it has been made no less than seven days before the preliminary hearing, but the accused’s application was made six months after the preliminary hearing and two weeks before the trial diet.

The judge did not believe that the test of special cause had been met, but the Crown did not oppose the application and the court decided to err on the side of caution and consider the merits.

It was submitted that the evidence would be relevant as to whether the accused was guilty of the crimes libelled because it would impact on the “credibility and reliability” of the complainer in relation to all charges on the indictment.

However, Lord Turnbull refused all bar one sentence of the application.

In a written opinion, Lord Turnbull said: “As framed, the evidence sought to be elicited of the complainer’s sexual behaviour with other unnamed individuals over a number of years prior to the commencement of her relationship with the accused, and the posting online of images of this conduct, is entirely irrelevant. How any such conduct in the generality could be relevant to the issue of whether the accused is guilty of the crimes libelled in the indictment is not specified in the application and was not identified in any of the submissions advanced.

“No explanation was provided for the proposition in part 5 of the application that this evidence would entitle the jury to infer that the complainer’s evidence in relation to the charges on the indictment was neither credible nor reliable. In any event, the evidence proposed does not relate to specific occurrences of sexual behaviour, as required by section 275(1)(a) and no submissions were advanced to suggest that the requirements of subsection (1)(c) were met. I shall therefore refuse to admit the questioning specified in this paragraph.

“There is no relevance to the accused’s defence in the evidence proposed within this paragraph. No statement vouching the relevance of this evidence is contained within part 4 of the application. No explanation is provided for the proposition in part 5, that this evidence would entitle the jury to infer that the complainer’s evidence in relation to the charges on the indictment was neither credible nor reliable.

“Nothing which was advanced in submissions took the matter any further. Even if I had been satisfied that there was some relevant purpose to leading the evidence identified, I would not have been satisfied that it met the requirements of section 275 (1) (a) or (c). I shall therefore refuse to admit the questioning specified in this paragraph.”

The application included an assertion that consensual sexual contact took place between the complainer and the accused on 8 November 2016, with a view to arguing that the allegations of rape had been “fabricated” by the complainer as a “smokescreen” to cover her having been caught having engaged in sado-masochistic videos with DB, but the judge rejected the argument.

He added: “I can see no need for the Crown to elicit evidence from the complainer about the nature or description of the conduct displayed in these images. The fact they are described as intimate conveys that they were sexual in nature. I can see no need to elicit that they depicted conduct which would be categorised as sado-masochistic and there would be no relevance in eliciting detail as to the actual conduct engaged in.

“If the accused’s position is that the complainer has fabricated the allegations which she subsequently made to the police, as a consequence of the discussions which she and the accused had concerning what steps to take in relation to the images falling within the scope of charge 4, he will be entitled to put this to her. There will be no need for the accused to elicit evidence of the nature of the images and there would be no relevant purpose in doing so.”

The court did however allow one line of questioning, contained within one paragraph of the application, to proceed.

Lord Turnbull said: “This paragraph contains five sentences. The first two sentences identify evidence which is designed to demonstrate that the complainer remained in touch with the accused and persistently declared her love and desire to reconcile.

“Insofar as this comprises, broadly speaking, evidence of things supposedly said by the complainer which bear on her credibility or reliability, I would not understand it to be engaged by section 274. I shall therefore refuse as unnecessary the first two sentences of this paragraph of the application.

“The third sentence identifies evidence which is designed to demonstrate that the complainer has engaged in sexual behaviour not forming part of the subject matter of the charge (when staying overnight on 12 January 2017).

“Such evidence plainly engages section 274 and the evidence identified is capable of passing the test of relevance. I accept that the questioning identified would also satisfy the tests set out in section 275 (1). I shall therefore allow the application insofar as this sentence of this paragraph is concerned.”