Earl Moxam, Senior Gleaner Writer

Lawyers representing the accused in rape and other sexual offence cases may soon be restricted in their ability to question the sexual history of the complainant.

In the draft bill amending the Offences Against the Person Act, it is proposed that "no evidence shall be adduced and no question shall be asked in cross-examination" relating to the sexual history of the complainant with persons other than the accused.

Only where the judge grants permission would the attorney for the accused be allowed to go outside of that restriction, according to the draft bill. The bill also sets out the conditions under which the judge would exercise this discretion.

That, on the face of it, represents a significant departure from current practice in Jamaica, whereby counsel for the accused has wide latitude in his ability to raise matters pertinent to the complainant's sexual history, in his efforts to rebut the allegations against his client.

Prohibition of questions

The advocacy group, Woman Inc., in its submission to the joint select committee of Parliament considering the matter, had called for a prohibition of all questions relating to the complainant's sexual history. This was rejected by the committee on the basis that it would not be fair to the accused.

Shirley Miller, senior consultant in the Ministry of Justice, pointed to developments in the Canadian jurisdiction for possible guidance, particularly in respect of the 1991 Canadian Supreme Court case, R v Seaboyer. In that case, the court held that the relevant statute had gone so far in shielding the complainant against questions regarding that person's sexual history that the constitutional right of the accused to a fair trial was likely to be compromised.

Justice McLachlin, for the majority, found that the statute which prevented the accused from cross examining the complainant about his or her sexual history, could, in some instances, exclude relevant evidence, thereby impeding the ability of the accused to make "full answer and defence", under the Canadian Charter of Rights and Freedoms.

The committee decided to further review the proposals in the Jamaican bill, with special reference to the approach adopted in other jurisdictions.