Evidence Act 2006

Admissibility rules, privilege, and confidentiality - Veracity and propensity - Complainants in sexual cases

44: Evidence of sexual experience or sexual disposition of complainants in sexual cases

You could also call this:

"What a complainant's sexual past can be talked about in a sexual case"

In a sexual case, you cannot talk about the complainant's sexual experience or disposition unless a Judge says you can. The Judge will only let you do this if it is really important to the case. You can talk about the complainant's sexual experience with the defendant if it is necessary to prove something about the case, or if it is part of what the defendant is being tried for. The Judge has to make sure that talking about these things is fair and important to the case, and will only let you do it if it is really necessary, following the rules in section 44A.

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This page was last updated on 29 June 2025

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393635.

Topics:

Crime and justice > Courts and legal helpCrime and justice > Criminal lawCrime and justice > Victim support

43: Propensity evidence offered by prosecution about defendants, or

"When can the prosecution use evidence about something you did before to prove you did something wrong?"

44AA: Evidence of sexual reputation of complainants in sexual cases, or

"Rules about talking about a complainant's sexual past in a sexual case"

Part 2Admissibility rules, privilege, and confidentiality
Veracity and propensity: Complainants in sexual cases

44Evidence of sexual experience or sexual disposition of complainants in sexual cases

In a sexual case, unless a Judge gives permission (on an application made under this subsection and in accordance with section 44A), no evidence can be given and no question can be put to a witness that relates directly or indirectly to—
the sexual experience of the complainant with the defendant (except to establish 1 or both of the following:
1. the mere fact that the complainant has sexual experience with the defendant:
2. an act or omission that is one of the elements of the offence for which the defendant is being tried, or that is the cause of action in the civil proceeding in question):
the sexual experience of the complainant with any person other than the defendant:
the sexual disposition of the complainant.

The Judge must not grant permission under subsection (1) to bring the evidence or ask the question unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
The permission of the Judge is not required to rebut or contradict evidence permitted to be given under this section.
In a sexual case in which the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence against the complainant, subsection (1)(b) does not apply to any evidence given, or any question put, that relates directly or indirectly to the sexual experience of the complainant with that other person.
This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.
In this section and sections 40(3)(b), 44AA, and 44A, complainant, in a civil proceeding that involves issues in dispute of a sexual nature, means the party, or a witness for the party, who seeks to establish a cause of action or, as the case requires, a defence in the civil proceeding.

Notes

Section 44: replaced, on 21 December 2021, by section 8 of the Sexual Violence Legislation Act 2021 (2021 No 60).