Excluding sexual behaviour evidence: back to first principles

Relevant sexual behaviour (SB) evidence should be admissible unless there are good reasons to exclude it. Starting from first principles, this article provides an in-depth analysis of reasons which might justify a rule of exclusion for relevant SB evidence, concluding that only epistemic reasons can legitimise restrictions on SB evidence adduced by the defence. This normative analysis is then deployed in constructing a new rule of admissibility which, it is argued, is an improvement over both the existing legislation (s.41 of the Youth Justice and Criminal Evidence Act 1999) and the Law Commission’s proposals in its Evidence in Sexual Offence Prosecutions Consultation Paper.