n South African Journal of Criminal Justice - The admissibility of sexual relationship evidence - comment

Volume 32 Number 3
  • ISSN : 1011-8527


The Canadian Supreme Court recently provided insight into the admissibility of so-called ‘friends with benefits’ evidence or evidence of a prior sexual relationship between the accused and complainant in cases of a sexual nature (see, R v Goldfinch 2019 SCC 38). Because few cases have dealt with such issues in our law, and since the South African legislation dealing with the admissibility of such evidence is basically a copy of the Canadian legislation in this regard, it is useful to consider the Supreme Court’s decision in R v Goldfinch (supra).

After reading R v Goldfinch it is apparent that the Canadian Supreme Court supports a rather restricted approach to the admissibility of evidence of a prior sexual relationship that, in a way, categorises such evidence. If prior sexual relationship evidence can support the inferences that the complainant is likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief, it will be very difficult to get the evidence admitted if a clear reason for its relevance is not established. The problem is that most evidence of this nature can support these inferences and that is why relevance, and not the nature of the relationship, should be the determining factor for admissibility. The relevance of sexual relationship evidence is, however, not always that apparent and it is submitted that it would at least be relevant where its absence would leave the trier of fact with a distorted representation of the circumstances surrounding the incident.

Loading full text...

Full text loading...


Article metrics loading...


This is a required field
Please enter a valid email address
Approval was a Success
Invalid data
An Error Occurred
Approval was partially successful, following selected items could not be processed due to error