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Legislative Assembly for the ACT: 2003 Week 3 Hansard (23 October) . . Page.. 4059 ..

MS TUCKER

the complainant's general sexual reputation. Most of this is a restatement of provisions currently in the Evidence Act. The new phrasing comes from the MCCOC recommendation. Around the world a range of versions have been trialled since the 1970s.

The simple analogy here is that in a robbery trial there is no relevance ascribed to robbed persons having spent lots of money or having even given money away to different people. The idea that evidence of a high level of sexual activity diminishes the justice of calling a rape a rape is a product of the very objectionable notion that I described earlier of women being regarded as either a Madonna or a whore. The notion identified in this model is that, if a woman has sex with more than one man, she is not discriminating, is a bad woman, and will not mind whom she has sex with. Therefore, the notion of the right to a choice is undermined or done away with.

This is an unacceptable story and argument to be made in a trial. It is based on a particular puritan and anti-woman belief system that ought not be at the heart of our society today. If you accept that in each possible sexual encounter each participant has the fundamental right to consent or not, then it is difficult to see the possible evidentiary value in a general history of sexual activity. It is merely another means of humiliation. In cases where the accusation of rape is true, the accused, having forced sexual acts on the complainant, is then allowed to drag out more intimate information in public.

This protection is important in paving the way for more victims of rape to feel more able to bring their accusations to the criminal system so that there will be some formal consequence for more rapists. As the Model Criminal Code Officers Committee put it, "evidence of reputation, even if relevant and therefore admissible, is too far removed from evidence of actual events or circumstances for its admission to be justified in any circumstances"; that is, they believe that it is reasonable to rule out that category of evidence on general sexual reputation because it is nearly impossible to imagine how it could validly have a bearing on consent or the other circumstances of a particular sexual incident.

On the other hand, the damage done in allowing the prospect of that evidence to be brought up-that the accuser's own sexual reputation can be judged according to someone else's standards-has put people off bringing their assault to the criminal justice system.

However, this bill does allow some evidence of sexual activity. In 51 (2), the exception given allows evidence of specific sexual activities of the complainant with an accused person in the sexual offence proceeding. This allows some evidence to suggest that there was some kind of ongoing sexual relationship. The danger in allowing this evidence is that it will also be used to allude to the old and outdated idea that a woman becomes the sexual property of the man she is attached to; that there is one eternal "yes"implied. It may be that something in the relationship built up an understood language, and this may be seen as relevant evidence in understanding whether it was reasonable for the accused person to believe that consent was given.

This version of the rape shield allows the court discretion but requires the reasons for the leave to be written. This is a means of ensuring some accountability.

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