Sexual History Evidence in Consent Cases

The rape-shield evidence rule prevents a court from treating a sexual assault complainant's past sexual conduct as evidence that she consented on the occasion in question. It excludes evidence of her general character or previous sexual experience with any person when consent or the quality of consent is in issue.

Statutory basis

Under Section 48 of the Bharatiya Sakshya Adhiniyam, 2023, in prosecutions for specified sexual offences where consent is in issue, evidence of the complainant's character or previous sexual experience is not relevant to consent or its quality.

• Section 149 also restricts cross-examination about the complainant's general immoral character or previous sexual experience when such questions are intended to prove consent.
• The earlier corresponding protections were contained in Sections 53A and 146 of the Indian Evidence Act, 1872, following the Criminal Law (Amendment) Act, 2013.

Purpose and operation

The rule rejects the stereotype that previous sexual activity implies consent to a later sexual act. Consent must relate to the specific act and circumstances being tried, rather than being inferred from reputation or sexual history.

• The exclusion covers previous sexual experience with the accused as well as with any other person.
• The rule excludes this particular inference; the court may still assess other legally admissible evidence relevant to whether consent existed.