New bill to make ‘sexual reputation’ of rape complainant inadmissible

Evidence relating to the sexual reputation of a rape complainant will no longer be admissible in criminal proceedings under a new bill introduced by the Albanese government.

Attorney-General Mark Dreyfus.

Evidence relating to the sexual reputation of a sexual violence complainant will no longer be admissible in Commonwealth criminal proceedings under a new bill introduced by the Albanese government.

The bill, ushered in on Monday morning by Attorney-General Mark Dreyfus, will ensure sexual violence accusers are better protected through new provisions, such as the admissibility of pre-recorded evidence to prevent complainants from having to repeatedly front court.

“These reforms support victims and survivors engaged in the Commonwealth criminal justice system, while maintaining due process protections and ensuring that defendants continue to be tried fairly and impartially,” Mr Dreyfus said of the bill.

“The reforms were developed in consultation with stakeholders, including victims and survivors and their advocates. I thank them for sharing their experience and expertise.”

The centrepiece of the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 is making evidence relating to a child or adult complainant’s “sexual reputation” inadmissible in Commonwealth criminal proceedings.

“Evidence of sexual reputation is not to be admissible on the basis that such evidence is too far removed from evidence of actual events or circumstances for its admission to be in the interests of justice in any circumstance,” the bill’s explanatory memorandum reads.

Rape and Sexual Assault Research and Advocacy CEO Rachael Burgin welcomed the amendments as a “necessary shift of focus away from victims of crime and onto the actions of the accused.”

“Too often, people accused of sexual violence and their legal counsel attempt to smear the reputation of the complainant to get away with their crime. Sexual history is irrelevant to the accused person’s state of mind in committing the offence, and no one deserves to be rape,” she said.

“Too often, such evidence is allowed to be admitted to the court record, despite the lack of relevance to the facts of the case or the actions of the accused. This change continues the necessary shift of focus away from victims of crime and onto the actions of the accused.”

Law Council of Australia president Greg McIntyre SC said he supported protections for vulnerable complainants while “retaining exceptions for properly relevant and probative evidence”, noting that the bill relates specifically to Commonwealth crimes and not sexual violence offences covered by states and territories.

“We note that similar prohibitions on the admissibility of sexual reputation in sexual assault proceedings exist under state and territory criminal laws,” he said.

“The rationale for making evidence relating to sexual reputation of a complainant inadmissible is that ‘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’.”

However, eminent criminal defence lawyer Karen Espiner told The Australian the legislation must be “carefully scrutinised” as it could introduce “a blanket ban to remove a court’s decision to admit certain evidence in appropriate cases.”

“An accused person must be able to challenge the account of all witnesses to enable allegations to be thoroughly tested. Evidence should be able to be considered on a case-by-case basis by the trial judge,” she said.

“It is not for parliament to determine that ‘evidence of this nature is too far removed from actual events or relevant facts for its admission to be in the interests of justice in any circumstances’. While this may frequently be the case, it will not always be so. This is why judicial discretion is critical.”

Restrictions relating to evidence regarding a complainant’s “sexual experience” will also be tightened, with evidence only being deemed admissible if the court grants leave to parties to explore it, if it relates to sexual activity with the defendant and if it relates to a sexual activity that occurred around the time of the alleged offence.

The court will also be granted the power to order an “evidence recording hearing” at any point in a proceeding that involves a vulnerable witness, and will be allowed to tender the recording as evidence in future proceedings to avoid complainants having to give repeat testimony.

The government last month announced the Australian Law Reform Commission would conduct a review into the nation’s approach to sexual assault, and investigate frameworks about evidence, court processes, jury directions and laws about consent.