New Zealand Law Journal, October 2022, 306-309

The introduction of admissibility rules aimed at excluding irrelevant or overly prejudicial evidence about a complainant’s sexual experience in many common law jurisdictions in the 1970s and 1980s has been followed by decades of criticisms concerning judicial implementation of the provisions. Multiple reform efforts have not quelled the critique, and such rules remain the focus of a debate which highlights the tension between due process for defendants and fair treatment of complainants. While most participants in the debate acknowledge the need for a rule that fairly attends to both policy imperatives, there is not yet clear agreement about how to attain such a goal. On one side there are compelling arguments that evidence of a complainant’s sexual experience should never be admitted as such evidence is never (or hardly ever) sufficiently relevant to the issues at trial. The significant counter narrative is that excluding sexual history evidence unfairly impacts on a defendant’s ability to mount an effective defence and as such infringes constitutional fair trial rights. Both views were strongly expressed in the recent legislative process concerning the 'Sexual Violence Legislation Bill 2019'. The Bill sought to implement some of the Law Commission’s recommendations contained in their second review of the 'Evidence Act 2006' (NZLC R142, 2019), including the extension of section 44 to include evidence of the sexual experience of the complainant with the defendant. (Author's abstract). Record #8072