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A trial judge always has discretion as to whether or not it’s permissible to cross-examine a complainant on their sexual history.
Since 2001, complainants in the Republic are offered a protection that is not offered in Northern Ireland during this form of questioning.
“When that form of questioning is happening,” explains O’Sullivan, “complainants will be assigned lawyers to advise them on that process, and they are separate from the DPP and, of course, separate from the defence.
The complainant will have their own lawyers advising them on that process.” Despite this protection, the mindset behind this type of questioning remains disturbing, as it can reinforce damaging myths about sexual violence, by implying that previous sexual activity can predict future consent.
The reality is that consent must be given on every single occasion, and cannot be transferred across sexual acts, interactions, or partners.
The law now states that “a person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act”, and provides several circumstances under which consent cannot be given, including being asleep or unconscious; under force or the threat of force or being impaired by alcohol or drugs.
The law clarifies that the list is not exhaustive and “does not limit the circumstances in which it may be established that a person did not consent to a sexual act”.
The use of such tactics in a courtroom are designed to appeal to a jury’s pre-existing biases surrounding sex and the trope of the “perfect victim”, who has a chaste sexual history, had no previous contact with the assailant, and who screamed or physically resisted during their assault sexual.
These questions thus rely on and perpetuate damaging (and usually misogynistic) messages about sex and consent, and can prevent victims from reporting sexual assault, as they fear having their sexual history weaponised against them.
The “No Means No” framework is dangerous because instead of demanding that a person asks for and receives consent before pursuing any form of sexual interaction, it places the onus on the unwilling partner to stop an unwanted sexual encounter – but this is not always possible or safe to do.
It is important to consider how men and women are socialised.