As some of you may be aware, I am currently inundated with coursework. All three of my coursework pieces are research-led, meaning that I have to go away and undertake research to find evidence to support my argument in each. This is fascinating and enjoyable to be fair, and the most interesting note to date is how easily it is to see how a certain perspective influences decision-making. My study of Jurisprudence in particular this semester has resulted in my realisation of the influence certain theories have on the judiciary.
With the above in mind, I wanted to share my thoughts with you in relation to perspective influence and decision-making. This I will do through the examination and discussion of the House of Lords’ decision in the R v A (No 2) case. I feel this case illustrates there is a case to be made for a diverse judiciary in terms of gender; this may result in a diverse judiciary on the basis of perspective also. I think my finding can be supported when the original judgment is compared to the Feminist Judgments Project’s re-writing of the judgment.
This marks the first time I post an academic piece on my blog, which is rather exciting. Full disclosure: this post is based on a piece of coursework I submitted in November 2015.
Without further ado, let’s begin.
R v A (No 2): a case for a diverse judiciary
The case of R v A (No 2) is deemed controversial due to the House of Lords’ judgment. It invokes particular criticism from feminists, as the decision affords trial judges discretion in the admittance of relevant evidence of the complainant’s sexual history, and ensures the fair trial rights of the defendant to the detriment of the victim’s privacy rights. The Lords’ decision prompts consideration of whether their (all-male) gender influenced their legal interpretation. The Feminist Judgments Project interpretation reaches a contrasting judgment through feminist critique; I would submit it illustrates how a different perspective in legal interpretation results in a startling difference in decision-making.
The case facts and history
In order to understand the delivered judgments, a brief summary of the case facts will be provided. Note how the facts are interpreted differently in both judgments in terms of the argument of consent.
The complainant and the defendant’s friend and housemate engaged in sexual activity on the 13th June 2000. The next day, upon walking to a local hospital, the defendant fell. When attempting to help the defendant, the complainant stated she was pulled down and raped. She reported the incident to the police that afternoon. The defendant submitted in defence the sexual intercourse occurred with the consent of the complainant and further argued that the complainant had initiated consensual sexual intercourse. Moreover, it was submitted this was part of a continuing sexual relationship, with the last instance of such sexual activity taking place a week prior to the alleged rape.
The issue which resulted in the case reaching the House of Lords arose when Counsel for the defendant sought leave to cross-examine the complainant regarding the alleged previous sexual relationship to provide evidence to support the defendant’s defence of his belief in consent. Relying upon s41 of the Youth Justice and Criminal Evidence Act 1999, the trial judge ruled whilst the complainant could be questioned regarding sexual activity relating to the defendant’s friend, she could not be questioned regarding previous sexual relationship with the defendant. However, the trial judge opined this ruling may breach provisions pursuant to Art. 6, the right to fair trial under the European Convention of Human Rights as implemented in the Human Rights Act 1998. The trial judge gave leave to the defendant to appeal, and the defendant exercised that right.
Upon appeal, Rose LJ opined evidence of a previous sexual relationship between the defendant and complainant was permissible under s41 (3)(a) of the 1999 Act in relation to the defendant’s belief in the complainant’s consent. Rose LJ stated his concern for the Art. 6 right of the defendant, believing a previous sexual relationship may be relevant to the issue of consent as well as belief in consent. Thus evidence of a previous sexual relationship was admissible. The Court of Appeal granted appeal to the House of Lords via the question: ‘May a sexual relationship between a defendant and complainant be relevant to the issue of consent so as to render its exclusion under s41 of the Youth Justice and Criminal Evidence Act, 1999 a contravention of the defendant’s right to fair trial?’ The House of Lords dismissed the appeal.
The original judgment of R v A (No 2)
The House of Lords were unanimous that on a straightforward application of s41 of the 1999 Act, the evidence relating to the previous sexual relationship would be inadmissible, and omission of evidence may result in an unfair trial. They stated rape victims should not be subjected to harsh questioning relating to previous sexual history; Lord Slynn described this as ‘harassment…very unjust to the woman’ and noted it resulted in fewer rape reports. Lord Hope proclaimed rape as the ‘most humiliating, distressing’ of crimes yet stated ‘balance must be struck’ in relation to the Art. 6 right of the defendant, and the complainant’s right not to be subject to humiliating questioning. Noting non-consent is an essential element to be established, the defendant must be afforded the opportunity to cross-examine, and submit evidence on that issue: that is an ‘essential element of his right to a fair trial’. Therefore whilst the aim of the 1999 Act was to protect rape victims from unwarranted intrusions into their private lives, the ‘gateways’ method provided by the 1999 Act was ‘legislative overkill’ due to the ‘excessive breadth of s41’ wherein the ‘threshold requirement [is] too high’.
Confusingly, given the conclusion reached relating to the breach of the defendant’s Art. 6 rights, the Law Lords declined to issue a declaration of incompatibility under s4 of the HRA. Instead, they utilised the obligation under s3 of the HRA to read and give effect to legislation as far as possible to do so to ensure compatibility with Convention rights. Consequently, a strained interpretation of the ‘similar fact’ gateway under s41 (3)(c) was reached, whereby the test of admissibility of sexual history evidence is whether such evidence is ‘so relevant to the issue of consent that to exclude it would endanger’ the defendant’s Art. 6 right to a fair trial. The House of Lords stated when it comes to sexual history evidence, the determination to allow for admission to the court should be left to the judicial discretion.
The rewritten judgment of R v A (No 2)
Feminist legal theory ‘aspires to produce a critical interpretation of legal practices’ and this is evident in the re-written judgment. McGlynn adopts a constructive interpretation, seeking to utilise legal principles such as integrity of the law to provide a coherent and logical judgment which realises the impact of the decision. McGlynn held there was no contravention of the defendant’s right to a fair trial; the defendant’s defence was his belief in consent but consent must be given afresh on each occasion of sexual activity. There thus was no logical basis to admit sexual history evidence under s41. Her judgment draws on s276 of the Canadian Criminal Code which specifically precludes the admission of sexual history evidence to support an inference that complainant is more likely to have consented to the sexual activity forming the case’s subject-matter. On this basis, she rejects propensity reasoning in determining previous sexual history as relevant to the case and disagrees that the four gateways are too broad. Rather, she determines these gateways found in s41 accommodate relevant sexual history evidence and concludes there is no need for a strained interpretation of s41 resulting in a test of admissibility.
My case for a diverse judiciary as evidenced by the re-written judgment
I feel the re-written judgment exposes ‘the partiality of the original decision’ and provides evidence to suggest feminist judges are committed to eliminating the use of gender stereotypes and rape myths; ‘myths, assumptions, stereotypes… continue to contaminate’ and adversely impact victims.
I mentioned previously that the reader should take note of the issue of consent; the defendant maintained that he believed the victim was consenting, given their past sexual history. I would hold this argument is flawed on the basis that consent must be given anew for each sexual encounter; you cannot argue that consent endures over time. Yet this very issue was interpreted differently by the House of Lords and McGlynn of the FJP.
Whilst McGlynn logically determined there was no argument of conflicting rights arising from s41 as consent is given afresh on each occasion, the Law Lords seemingly undertook judicial overkill on this question. Not only holding there was a conflict of rights, they stretched their interpretative obligation under s3 HRA to effectively re-write s41 in favour of the defendant. The original decision thus illustrates the ‘universal imbalance in power between women and men’ for the all-male court impliedly upheld a hierarchy of rights due to their combined lack of understanding the experience of the rape victim. The House of Lords did not stop their deliberations at the very beginning on the basis the consent must be given afresh when they could – and arguably should – have. Instead, they arguably adjudicated too much, if such a thing is possible, and created an implied hierarchy of rights. Through this, they prioritised the rights of the defendant to a fair trial over the rights of the victim to privacy. This was done needlessly, as surely the case could have concluded simply on determining that consent cannot be assumed but must be obtained afresh in each instance of sexual activity.
The case illustrates how gender may make a difference in judicial decision-making. Determining relevance is vulnerable to the application of private beliefs, as judges draw on personal experiences. The judgments illustrate the difference in the male and female perspective to relevance: the male perspective favours reliance on sexual history to ensure Art 6 rights whereas McGlynn argued sexual history evidence ‘is often of little relevance’ and when submitted, is to the detriment of the victim. The concept of relevance therefore is ‘imbued with stereotypical notions’ and a ‘mythical base’ in the law of rape. MacKinnon has argued the judicial system embodied in a male state ‘keeps women down and out’ due to such decisions, which uphold the right of the male defendant to the detriment of the female victim. Consequently, most rapes are unreported because most women know they will not get justice; ‘state rape is a more appropriate description of their experiences’ when subjected to intrusive cross-examination. Therefore it is in the interest of victims and the public to uphold rape-shield legislation; the public have an interest in witnessing a fair trial, but not the humiliation of victims.
The lack of diversity in the composition of the court was its Achilles heel, resulting as it did in the subconscious use of sexual stereotypes. The Law Lords ‘paid lip-service’ in advocating protection of rape victims, yet there were questionable statements which reiterated sexual stereotypes. For example, relating to the exclusion of non-contemporaneous sexual history evidence under s41, ‘the man or woman in the street would find it strange that evidence that two young people…as part of a happy relationship had had sexual acts together, must be wholly excluded’ suggests that society views rape as a non-occurrence between couples. However, the majority of victims know their attacker, so it reasonable to assume the trauma is exacerbated due to violation of trust. In addition, it must be noted this is a sweeping statement to make. I would submit the average person on the street would think it odd if past sexual history was brought up in a rape case; most people understand the principle that consent must be given afresh, so why permit an alleged rapist to rely on past consent?Yet the Law Lords failed to take this into consideration because of their strict application approach, whereby they interpreted the law to the exclusion of moral arguments i.e. the privacy of the victim. They ruled on the legal validity of law provided by Parliament, noting their ‘strong interpretative’ obligation under s3 of the Human Rights Act to give effect to the defendant’s Art. 6 right. McGlynn, however, rightly holds the resulting test of admissibility ‘distorts’ the wording of s41 and results in ‘judicial vandalism’: Parliament did not intend the 1999 Act to be construed thus.
Furthermore, this ruling held the admission of sexual history evidence was at the discretion of the trial judge, implying the ‘manufacture of a fresh legal rule’ in the absence of an established rule. Yet, this ‘leads us nowhere and tells us nothing’ with the consequence of subjecting rape victims to uncertainty – will they be questioned, or not? – which further promotes the defendant’s interests. McGlynn’s adopted constructionist approach argues that a ‘fundamental’ feature of the 1999 Act was the restriction of judicial discretion, thus this emphasis on judicial discretion proposed by the original judgment ‘seriously undermines’ this feature. I concur, and feel that the 1999 Act was sufficiently clear in instruction to prevent reliance on judicial discretion.
A legal realism approach ‘conceives the law as experienced by people’, arguing that interpretation is influenced by the decision-maker’s personal perspectives. In the re-written judgment, this approach ensured the protection of the victim, realising the experiences of the victim and the impact the appeal dismissal would have on rape victims – all due to the (female) gender of McGlynn. This does not result in ‘diminished respect for judicial authority’; we respect judges when they interpret the law according to their own experiences, as we desire to see the law reflect modern society, and be a living document. This is evident when McGlynn remarks the impact of the case ‘will reverberate’ in subsequent rape cases.
That it is seemingly a ‘matter of common sense’ that ‘what has been engaged on in the past may influence what choice made on a future occasion’ cannot reflect modern society. This implies a defendant can argue as the victim consented in the past, he believed that was ongoing consent. This is generalised and a discriminatory assumption grounded in a ‘masculine gendered assumption’ which erodes the voice and privacy of the female victim. On this basis I would argue ‘the law sees and treats women the way men see and treat women’ and submit R v A (No 2) makes the case for a diverse judiciary. A judiciary is ‘stronger’ when the court is diverse, due to the differing experiences and perspectives. Legal positivists would argue law is law and construed impartially irrespective of the diversity of judiciary. Scrutinising the original decision discredits this argument as it is obvious the masculine perspective influenced judges. The original judgment was partial to the male view, holding previous sexual history increases the likelihood that subsequent sexual relations are consensual and this I cannot accept. The re-written judgment suggests the presence of even one female judge could have challenged this dominant masculine perspective. The rewritten judgment suggests a female judge would utilise her experiences to argue consent must be refreshed, and present a more impartial interpretation: ‘consent is to a person, not a set of circumstances’.
Baroness Hale remarked that feminist judges ‘bring their own experience and understanding of life’ to the interpretation and application of the law. Considering the difference in outcome from the above judgments on the same facts of a case, I hold this to be true. A feminist critique illustrates whilst ‘women must not in principle be excluded from the rights enjoyed by men’ there is a disparity between theory and application. R v A (No 2) is an example of ‘how, where and why [the law] has failed women’ for it demonstrates how the law of rape contains sexual differentiation on the surface: it apparently promotes the interest of the victim in theory, and ultimately reflects the (male) defendant’s interpretation of the incident in practice.
 R v A (No 2)  UKHL 25
 n 1, para 17-24 per Lord Steyn
 Ibid 20-21 per Lord Steyn
 Ibid para 23
 n 1, para 1
 N1, para 49
 Ibid, para 51
 n 1, para 43 per Lord Steyn
 Ibid, para 46
 E Jackson and N Lacey, ‘Introducing Feminist Legal Theory’ in J Penner, D Schiff and R Nobles, (eds) Jurisprudence and Legal Theory: Commentary and Materials (Great Britain: LexisNexis Butterworths, 2002) 785
 C McGlynn, R v A (No 2) in R Hunter, C McGlynn, and E Rackley, (eds.) Feminist Judgments: From Theory to Practice (Oxford: Hart, 2010) 223, para 60-61
 Ibid, para 56-58
 n 11
 Ibid, para 71-72
 E Rackley, ‘Why Feminist Legal Scholars Should Write Judgments: Reflections on the Feminist Judgments Project in England and Wales’ Canadian Journal of Women and Law (2012) 24:403
 n 11, para 4
 H Charlesworth and C Chinkin, ‘Violence Against Women: A Global Issue’ in J Stubbs (ed.) Women, Male Violence and the Law (Sydney: Institute of Criminology Monograph Series, 1994) 13
 R v Seaboyer  2 S.C.R. 577 per Madam Justice L’Heureux-Dubé
 n 11, para 17
 n 18, para 678-79, 681
 C MacKinnon, Are Women Human? And Other International Dialogues (Massachusetts: Harvard University Press, 2006) 76
 Ibid, 244
 n 11, para 62
 J Elvin, ‘The Continuing Use of Problematic Sexual Stereotypes in Judicial Decision-Making’ Feminist Legal Studies (2010) 18:275-276
 n 1, para 10 per Lord Steyn
 S Ratnapala, Jurisprudence (Melbourne: 2nd edn, Cambridge University Press, 2014) 24
 R v Director of Public Prosecutions Ex Parte Kebeline and Others  2 AC 326, 366 per Lord Steyn
 n 11, para 71
 R Dworkin, Taking Rights Seriously (London: Bloomsbury 2013) 33, 63
 n 28
 n 26
 T Hayes, ‘A Goode Judge is Hard to Find: An Essay on Legal Realism and Law School Casebooks’ 54 Journal of Legal Education (June 2004) 2: 221
 n 11, para 5
 n 1, para 31
 n 15, 411
 n 10, 792
 n 15, 413
 n 11, para 45
 Foreword in R Hunter, C McGlynn, and E Rackley, (eds.) Feminist Judgments: From Theory to Practice (Oxford: Hart, 2010)
 M Dembour, ‘Critiques’ in D Moeckli, S Shah and S Sivakumaran (eds.) International Human Rights Law (Oxford: OUP, 2014 2nd ed) 67
 n 10, 786