Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

236 PRACTITIONERS GUIDE No. 12
serve as a method of undermining the good character of a
witness and the perception of the victim’s reliability and
credibility due to stereotypes that women should be “chaste”
and not sexually active. When sexual history involving the
accused is admitted in narrow circumstances, courts will need
to take care in the weight to which it ascribed, since the mere
fact that a women has agreed to the sexual activity in the past
in no way means she has done so in the instance[s] at issue.
Each episode of sexual contact must be agreed to and previous
agreements to engage in sexual contact should not justify
assumptions on the part of an alleged perpetrator that such
agreement will always be given.
The UN Handbook for Legislation on Violence against Women
has noted that: “In many countries, complainant/survivor’s
prior sexual history continues to be used to deflect attention
away from the accused onto the complainant”. 637 In such
instances, a woman’s previous sexual history may be used as
an attempt to discredit her and call into question the legitimacy
of her complaint and so undermine the prosecution. Women
subject to violence “have often been ‘re-victimized’ when
questioned by defence attorneys about details of their private
sexual conduct”. 638
Sometimes a woman’s previous sexual history has also been
taken into account during the sentencing of an offence and,
regardless of the fact the perpetrator was found guilty of the
offence, may be used as mitigating factor to reduce the
sentence of the perpetrator. 639
The Istanbul Convention requires that: “Parties shall take the
necessary legislative or other measures to ensure that, in any
civil or criminal proceedings, evidence relating to the sexual
history and conduct of the victim shall be permitted only when
637
UN Handbook for Legislation on Violence against Women, above
note 511, page 44.
638
Ibid.
639
Ibid.