Sexual History Evidence in Review: Stasis in Constant Change

Sexual history evidence is often cited as the clearest example that remains codified in law of the general wariness and distrust of claims of sexual violation made by women against men. This chapter explores the current state of law and policy on sexual history evidence in several similar jurisdictions that have sought
to counter the association of sexual history evidence with the dire implications for women’s sexuality with which it has become associated. We find that virtually every jurisdiction we consider is in the process of reviewing their existing regulatory framework and/or trialing new approaches. Moreover, while doctrinal and procedural structures may differ, reflecting the unique political, social, and historical realities in which they evolved, many of the problems, conceptual and practical, associated with the use of sexual history evidence, recur regardless of regulatory configuration. Our analysis draws together some common themes and reflects critically on the ‘policy cycle’ that drives so much legislative and policy movement in this area. We conclude with a call to resist the artificially imposed strictures of the policy cycle and return to the important and difficult work of reckoning with the underlying logic that continues to support the use and relevance of sexual history evidence in the rape trial.