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Report No. 84

V. Past Sexual History

7.15. Past character as a relevant fact-Sections 8, 9, 11 and 14, Evidence Act. -

We now deal with a very vital question of evidence related to prosecutions for rape. The question is this-how far should the past sexual history of the victim of rape be allowed to be given in evidence in Court on behalf of the accused? More than any other point of evidence, this has been the source of the very grave dissatisfaction with the legal system and of the feeling of alienation of the general public from the law and its processes, to which we have made a reference in the introductory1 Chapter. In the first place, where the issue is one of consent, evidence of past intercourse with the accused may become relevant under the omnibus provision in section 11 of the Evidence Act, under which a fact is relevant if it renders highly probable or improbable the existence of another fact in issue or relevant fact.

Secondly, evidence of past acts of intercourse with the accused may become admissible as showing passion (a "state of mind"-section 14).

Thirdly, sections 8 and 9 of the Evidence Act could arguably be invoked to render past acts of sexual intercourse relevant as showing conduct influenced by a fact in issue or a relevant fact.

1. Chapter 1, supra.

7.16. Of course, the section1 of the Evidence Act referred to above2 would be material only on the issue of consent, and the evidence that can be permitted thereunder must also relate to specific acts of sexual intercourse with the accused (or undue sexual familiarity with the accused).

1. Sections 8, 9, 11 and 14, Evidence Act.

2. Para. 7.15, supra.

Rape and Allied Offences - Some Questions of Substantive Law, Procedire and Evidence Back

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