227 Evidence of character and previous sexual experience

Posted: 17th October 2018 by jamesgrantlaw in Uncategorized

227 Evidence of character and previous sexual experience
(1) Evidence as to the character of an accused or as to the character
of any person against or in connection with whom a sexual offence as
contemplated in the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007, is alleged to have been committed, shall, subject
to the provisions of subsection (2), be admissible or inadmissible if such
evidence would have been admissible or inadmissible on the 30th day of
May, 1961.
(2) No evidence as to any previous sexual experience or conduct of
any person against or in connection with whom a sexual offence is
alleged to have been committed, other than evidence relating to sexual
experience or conduct in respect of the offence which is being tried, shall
be adduced, and no evidence or question in cross examination regarding
such sexual experience or conduct, shall be put to such person, the
accused or any other witness at the proceedings pending before the court
unless-
(a) the court has, on application by any party to the
proceedings, granted leave to adduce such evidence or to
put such question; or
(b) such evidence has been introduced by the prosecution.
(3) Before an application for leave contemplated in subsection (2) (a)
is heard, the court may direct that any person, including the complainant,
whose presence is not necessary may not be present at the proceedings.
(4) The court shall, subject to subsection (6), grant the application
referred to in subsection (2) (a) only if satisfied that such evidence or
questioning is relevant to the proceedings pending before the court.
(5) In determining whether evidence or questioning as contemplated
in this section is relevant to the proceedings pending before the court,
the court shall take into account whether such evidence or questioning-
(a) is in the interests of justice, with due regard to the
accused’s right to a fair trial;
(b) is in the interests of society in encouraging the reporting of
sexual offences;
(c) relates to a specific instance of sexual activity relevant to a
fact in issue;
(d) is likely to rebut evidence previously adduced by the
prosecution;
(e) is fundamental to the accused’s defence;
(f) is not substantially outweighed by its potential prejudice to
the complainant’s personal dignity and right to privacy; or
(g) is likely to explain the presence of semen or the source of
pregnancy or disease or any injury to the complainant,
where it is relevant to a fact in issue.
(6) The court shall not grant an application referred to in subsection
(2) (a) if, in its opinion, such evidence or questioning is sought to be
adduced to support an inference that by reason of the sexual nature of
the complainant’s experience or conduct, the complainant-
(a) is more likely to have consented to the offence being tried;
or
(b) is less worthy of belief.
(7) The court shall provide reasons for granting or refusing an
application in terms of subsection (2) (a), which reasons shall be entered
in the record of the proceedings.
[S. 227 substituted by s. 2 of Act 39 of 1989 (wef 1 August 1989) and by s.
68 of Act 32 of 2007 (wef 16 December 2007).]
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