145.The sections in this Chapter restrict the circumstances in which evidence or questions about a complainant’s sexual behaviour outside the circumstances of the alleged offence can be introduced in rape or certain sexual offence cases (as listed in section 62). This includes sexual behaviour or experience with the defendant (section 42(1)(c)). The sections do not limit the meaning of evidence in this context, and it is therefore to be understood as including secondary evidence of sexual behaviour such as abortions.
146.If the defence wishes to introduce evidence or ask questions about the complainant’s sexual behaviour, it will have to make an application to the court. The prosecution will be warned of the general grounds of the application and will have an opportunity to oppose it. The court will then consider whether or not to grant leave (which may only be granted on the strictly controlled grounds set out in section 41).
Commentary on Sections Part II: Giving of evidence or information for purposes of criminal proceedings Chapter III: Protection of complainants in proceedings for sexual offences