Meet the Book Author: Sexual History and the Rape Trial

Joanne Conaghan and Yvette Russell

In our Meet the Book Author Series, the Journal of Law and Society and the Centre of Law and Society provide first-hand accounts from authors who have recently contributed notable socio-legal books to their respective fields. In this post, we hear from Joanne Conaghan and Yvette Russell, whose new book Sexual History and the Rape Trial was published in October 2023 with Bristol University Press.

What is the book about? 

This book is an in-depth investigation of what is known in sexual offences trials as ‘sexual history evidence’. This is evidence, considered relevant to the guilt or innocence of the accused, of a complainant’s sexual activity, behaviour, experience, and (in some contexts) reputation, whether with the accused or a third party, outside the immediate time frame of the event forming the subject matter of the charge. 

Our objective in this book was to gain and explicate a deep understanding of sexual history evidence as a legal construct and to situate the law, policy and practice of sexual history evidence in its historical and theoretical context. In this way, the book makes a series of important interventions into the fields of criminal and evidence law, sexual violence studies and feminist theory, and socio-legal studies more broadly. 

Why did we write it? 

We were galvanised by news in 2016 of the footballer Ched Evans’ successful appeal against conviction for rape and his subsequent acquittal in a retrial. Evans argued before the Court of Appeal, his case having been ‘fast-tracked’ by the Criminal Cases Review Commission, that new information he had been unable to present at his original trial could have added support to his defence. That new information, eventually heard at his retrial, came from the testimony of two witnesses who claimed to have had sexual intercourse with Evans’ complainant. One witness testified to having sex with the complainant two days before the alleged rape, the other, two weeks after. 

For us, this case brings into stark relief many of the issues to which the use of sexual history evidence gives rise. We realised that a sustained treatment of the topic was missing from the literature and sorely needed. That Evans’ case generated such diametrically opposing views – from those who argued it was an example of the law working as it should, to those who viewed it as representative of the vast and ongoing failure of the criminal justice response to sexual violence more broadly – only added to our sense that this was an urgent project.

How did we go about doing this research?

The book employs a multidisciplinary method which draws on a wide array of literatures and conceptual frameworks to answer its research questions. Some of these questions include: Does the use of sexual history evidence produce just outcomes in criminal cases? How effective has the law been in repressing its inappropriate use? Who is the subject of sexual history evidence and what ideas of sexual agency and moral and legal responsibility underpin its relevance in the rape trial?  How does sexual history evidence in the context of rape law and practice speak to broader issues of gender, justice and equality? To answer these questions, we draw on literature and research across the humanities and social sciences. The book combines historical analysis, with doctrinal and humanities methods, including in feminist philosophy and psychoanalysis. Supported by social sciences studies, these literatures and methods helped us to generate new insights into how and why sexual history evidence continues to be used in the courtroom, its ubiquity in the popular and penal imaginary, and the problem this presents both for the criminal justice system and, more broadly, for law’s capacity to recognise and redress sexual violence. Crucial to our approach is a recognition that the problem of the misuse of sexual history evidence — indeed the problem of sexual violence in general — cannot be resolved by law alone but requires multidisciplinary, multifaceted engagement. Of equal importance is the adoption of an approach which does not apprehend the potential and effects of law narrowly in terms of law reform outcomes. Rather, we view law as a space for discursive disruption and ideological subversion, so that the measure of legal ‘success’ is conceived in terms of the possibilities which particular legal interventions pose for reshaping the normative and conceptual frame(s) which lend coherence and legitimacy to the legal processes and operations which currently comprise the rape trial.