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Jill has been blogging for Feministe since 2005.
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55 Responses

  1. Jason
    Jason November 3, 2005 at 4:44 pm |

    While I am pleased that rape is easier to prove nowadays I do have some reservations about the changes in law. Rape is the only crime in which the victim can’t be cross-examined thoroughly. All defendants have a right to confront their accusers. If a defendant brutally battered someone and did vile things to the victim he would still have the right to fully cross-examine the victim. I just don’t see why we have picked one type of victim as deserving special rights and therefore limiting the defendants right to cross-examine his accusers.

  2. piny
    piny November 3, 2005 at 4:53 pm |

    …Are you referring to Rape Shield laws? Because those prevent the defense from questioning the plaintiff about specific aspects of her sexual history. This is because, after decades of raped women being put on trial for their sexual histories, it was decided that this information was far more prejudicial than useful. This is only accurate: the amount of sex a woman has little to do with whether or not she would consent to any given sexual encounter. There are many other examples of tossing out evidence either because it’s prejudicial or because it serves some larger social purpose–look at the subsequent remedial measures rule. Pretty damning, right? Pretty useful to the plaintiff, right?

  3. ginmar
    ginmar November 3, 2005 at 5:23 pm |

    Or if he’d bounced any checks and lost any money, you know.

    Did you notice the part where the rapist is thought to have committed twenty four reported rapes? That word ‘reported’ sent a chill up my spine.

  4. Jason
    Jason November 3, 2005 at 5:35 pm |

    I disagree that the rape shield laws simply exclude evidence that would otherwise have been irrelevent. I can think of situations in which that line of questioning would be relevant. So this is not like the robbery victim being asked what clothes he was wearing (btw, your other hypothetical question might be relevant anyway, e.g. “Have you given money away for free?”)

    And yes, we do exclude prejudicial and irrelevant evidence. But why can’t we simply apply these long-standing evidentiary rules to rape prosecutions? Let’s let the judge decide on a case by case basis.

    I understand that sexism let a lot of men go free in the past. But I simply don’t agree that that we should limit the defendant’s right to cross-examine his accuser. It’s a slippery slope. What other past prejudices can we remedy by limiting defendants rights? Quite a few.

  5. piny
    piny November 3, 2005 at 5:45 pm |

    I disagree that the rape shield laws simply exclude evidence that would otherwise have been irrelevent. I can think of situations in which that line of questioning would be relevant. So this is not like the robbery victim being asked what clothes he was wearing (btw, your other hypothetical question might be relevant anyway, e.g. “Have you given money away for free?”)

    Such as?

    And how would charity be evidence that any given person wanted to give that money away to that person? Have you been charitable? Does that mean you would happily hand your wallet over to the first person who asked?

    And yes, we do exclude prejudicial and irrelevant evidence. But why can’t we simply apply these long-standing evidentiary rules to rape prosecutions? Let’s let the judge decide on a case by case basis.

    These “long-standing evidentiary rules” are broad. Moreover, the rape-shield laws do apply these long-standing evidentiary rules to rape prosecutions, to wit: because the amount of sex and type of sex a woman has is generally irrelevant to the question of whether she wanted to have sex with this particular man at this particular time, and since this information is inevitably prejudicial, it must be excluded.

  6. piny
    piny November 3, 2005 at 5:48 pm |

    Not just that, but a lot of these laws exclude evidence that usually is damning. Take my earlier example. If a landlord puts a railing on a high balcony immediately after a child plummets to her death, is that not good reason to suspect that the landlord was acting in bad faith by not taking those obvious measures sooner? Would that line of questioning not be extremely useful to the plaintiff?

  7. Jason
    Jason November 3, 2005 at 5:52 pm |

    piny,

    yes, we exclude subsequent remedial measures. But those are in Civil cases. Our Constitution gives defendants greater leeway in cross-examing their accusers. It’s a right I believe in and I don’t like seeing it limited.

  8. Jason
    Jason November 3, 2005 at 6:03 pm |

    A woman’s or a man’s sexual history does have some relevance to whether or not they consented to sex. Obviously, just because one is promiscuous doesn’t mean they consented. But it does have some relevance.

    A virgin is less likely to consent to sex than a promiscuous person. Someone who has had sex on the same day they met someone else is more likely to have consented to sex with someone the just met than someone who has never had sex after dating for a month, for example.

    And yes, this testimony is prejudial. To the victim. But his is in the criminal context, not the civil context. We let defendants have broad leeway on cross-examination. Evidence in criminal matters is usually not allowed because it’s prejudicial to the Defendant, not the victim.

    I understand this type of questioning is extremely difficult on the victim. As is a lot of questioning of victimes. I myself was robbed last year and it was very uncomfortable for me to testify. I was worried about the backlash from the defendants’ family and friends. I live in a bad part of San Francisco and I was worried that people in the neighborhood would know I testified against these guys. Not that my testimony compares to rape victims, but testifying is a necessary but unpleasant experience. It’s unconfortable for witnesses to a great number of crimes.

  9. piny
    piny November 3, 2005 at 6:07 pm |

    We also exclude many different kinds of prejudicial evidence in criminal cases. Evidence that speaks to character, for example, when not directly relevant to the case. A woman’s sexual history could be excluded on these grounds: its aim is to paint her as a slut, even though her sexual activity is not evidence that she consented to this particular sexual act.

    Plus, rape-shield laws exclude questioning a woman about her sexual history only when it would fall under the rules already established to exclude evidence: when it is irrelevant, given that it is prejudicial. If the potential probative effect is outweighed by the tendency on the part of the jury to disapprove of the woman in question for a reason unrelated to the crime, it is inadmissible. Questions prohibited by rape-shield laws fall under this definition; that’s why the defense wants to ask them.

  10. piny
    piny November 3, 2005 at 6:12 pm |

    Obviously, just because one is promiscuous doesn’t mean they consented.

    Exactly.

    A virgin is less likely to consent to sex than a promiscuous person. Someone who has had sex on the same day they met someone else is more likely to have consented to sex with someone the just met than someone who has never had sex after dating for a month, for example.

    But we are not talking about sex in general. We are talking about a specific act with a specific person. And the fact that you wanted it last week, or that you have it with several different people, is not good evidence that you wanted it with this particular man.

    You’re also misreading the rule involved. It is not whether the evidence has any probative value–evidence excluded on prejudice grounds frequently has some probative value. The question is whether its probative value outweighs its tendency to prejudice. Given the tendency on the part of juries to decide, for example, that a promiscuous woman is more likely lying when she said she was raped, sexual history is definitely prejudicial.

  11. Joel Sax
    Joel Sax November 3, 2005 at 6:17 pm |

    Re: The Haidl (Orange County) Case.

    The tactics that Haidl used backfired on him (he was convicted in a second trial — the first trial was hung in an 11-1 decision) and established an important precedent in the minds of the people. Namely that it doesn’t matter if the woman gave her consent the night before: if you drug her today and then penetrate her without her permission, you have raped her.

    A bit of pendantry: here in California, we have two laws governing sexual violence. In one case, we have the law against rape which specifically pertains to unwanted intercourse between a man and a woman. The other law is sexual assault which pertains to abusing any part of a person’s body, especially the genitals, the anus and the breasts, without their permission. If you were, for example, to give a man a hard kick in the balls, you would be guilty of sexual assault. Likewise, if you hit a woman in her breast, the same law would apply. Unwanted sodomy also falls under this second law. The penalties are the same as for rape.

  12. Jason
    Jason November 3, 2005 at 6:26 pm |

    Once again, the reason most evidence in criminal cases is excluded is because it’s prejudicial to the defendant, not the victim. Yes, we exclude character evidence. But that’s the defendant’s character. We allow the defense to cross-examine victims on their criminal record, their drinking and drug habits, etc. For instance, when I testified about the robbery the defense tried to say I was drunk (I had 2 drinks with dinner and was walking home). They asked me a bunch of questions about this. Or look at the O.J. trial. The defense was allowed to go to great lengths to basically prove that the L.A.P.D. was racist (which isn’t hard to prove). Whether the L.A.P.D. is rascist or not has little relevance to whether O.J. did it. I have seen murder trials where the defense is basically that this horrible, immoral, other guy did it. Or, that the victim brought it on himself. I think the right of the defendant to cross-examine their accusers is more important than protecting the victim from uncomfortable questions.

  13. Jason
    Jason November 3, 2005 at 6:28 pm |

    I have to look at the rape shield law. I may be misreading it. But, I don’t see why we need it if, as pliny says, it still allows relevant questions. Why even have the rule if irrelevant questions would be excluded anyway?

  14. EricP
    EricP November 3, 2005 at 6:32 pm |

    It was reversed on appeal, but there is at least one high profile case where the New Yorks rape shield law was abused. See this site. I didn’t spend much time looking it up but you should be able to find many references to it since it was very public at the time.

    I think that the law is valid but there should be more flexibility in its application at the judge’s discretion. In a lot of ways, being wrongly of accused rape can be a monstrous thing. You become tainted by it even if you are found innocent. There is a general assumption that rape victims never lie so if you get off, it must be because of a technicality.

  15. Jason
    Jason November 3, 2005 at 6:39 pm |

    I found a good chart on rape shield laws:

    http://www.ndaa-apri.org/pdf/vaw_rape_shield_laws_may_05.pdf

  16. piny
    piny November 3, 2005 at 7:08 pm |

    Once again, the reason most evidence in criminal cases is excluded is because it’s prejudicial to the defendant, not the victim. Yes, we exclude character evidence. But that’s the defendant’s character. We allow the defense to cross-examine victims on their criminal record, their drinking and drug habits, etc. For instance, when I testified about the robbery the defense tried to say I was drunk (I had 2 drinks with dinner and was walking home). They asked me a bunch of questions about this.

    This is credibility, not character. They were trying to argue that you were too drunk to know what was going on. It’s permissible to ask these questions of any witness, including plaintiffs, including rape victims, because it directly relates to the worth of your testimony.

    The defense was allowed to go to great lengths to basically prove that the L.A.P.D. was racist (which isn’t hard to prove). Whether the L.A.P.D. is rascist or not has little relevance to whether O.J. did it.

    On the contrary, this is directly relevant to the credibility of any LAPD witnesses and to the reliability of any evidence introduced by the LAPD. Its probative value arguably does outweigh its prejudicial effect. If a defendant in a rape case had good reason to suspect that the authorities involved were prosecuting him for racial reasons, and if it weren’t “hard to prove” that they were in fact deeply racist, would you want that line of questioning thrown out of court? What if it were clearly related to the investigation?

    I have to look at the rape shield law. I may be misreading it. But, I don’t see why we need it if, as pliny says, it still allows relevant questions. Why even have the rule if irrelevant questions would be excluded anyway?

    Because, prior to its introduction, the rules related to prejudicial evidence were universally abused. The rape victim’s character was always put on trial because of the tendency of the jury to become prejudiced against sexually active women. Sexual history is primarily useful to the defense because it is prejudicial.

  17. Ben
    Ben November 3, 2005 at 7:38 pm |

    if a woman is aroused, she can’t be assaulted

    That’s kinda like saying all drowning victims must have committed suicide because they chose to breathe in.

  18. Anne
    Anne November 3, 2005 at 7:42 pm |

    There is a general assumption that rape victims never lie so if you get off, it must be because of a technicality.

    That’s not the only general assumption (and frankly that’s not the one I see most often). The other general assumption is that rape victims are usually lying because they are trying to get money out of the defendant, or because they want to blame someone for their having had sex.

  19. Antigone
    Antigone November 3, 2005 at 8:34 pm |

    A virgin is less likely to consent to sex than a promiscuous person. Someone who has had sex on the same day they met someone else is more likely to have consented to sex with someone the just met than someone who has never had sex after dating for a month, for example.

    That is PATENTLY FALSE. Not misleading, wrong. Doesn’t matter if one has consented to sex before, it has NO bearing whatsoever if one will consent to sex again, or in this specific case. Which is why they came up with Rape Shield Laws- people seem to think that it’s true.

  20. Jason
    Jason November 3, 2005 at 9:54 pm |

    I don’t understand how one who has consented to sex in the past is no more likely to consent in the future than a vigin. I understand your argument is the company line, and I would never rely solely on the relationship between consenting in the past to consenting in the future, but really, there is no correlation?

    Look at the article Eric P linked to above. So a woman who has consented to S&M sex in the past is no more likely to consent to S&M sex in the future than someone who has never done S&M? Let’s say a man has had 50 male partners and routinely picks guys up at bars at night and has sex with them. Is he just as likely to consent to sex in the future as a virgin? To me that is not logical.

  21. Jason
    Jason November 3, 2005 at 10:09 pm |

    Piny,

    The shield laws did make a big difference. They exclude more than prejudicial or irrelevent evidence. Look at the case EricP linked to. A judge refused to allow evidence that a woman practiced S&M, wrote on an S&M website andmet the defendant on a S&M site. When the defendant was accused of tying her up and raping her he wasn’t allowed to put that in evidence. Is this info really irrelevant? The appellate court did say there was prejudice–to the defendant who wasn’t able to fully defend himself!

    The defendant’s right to defend himself is more important than your fears of prejudicing the jury.

    I watched a number of criminal trials when I was in D.C. for the summer. Almost always was the defense allowed to argue whatever it wanted. And they almost always blamed the victim or someone else. It’s up to the prosecutor to reason with the jury and prove his case.

  22. EricP
    EricP November 3, 2005 at 10:17 pm |

    Anne,

    The other general assumption is that rape victims are usually lying because they are trying to get money out of the defendant, or because they want to blame someone for their having had sex.

    I’ll swear before all that I hold dear that I have never heard that one before. I don’t want to doubt you but could you provide any evidence from current times (and not a link to some nutso blogger on either side) that indicates that most people assume that women in a rape case have some other motive.

  23. EricP
    EricP November 3, 2005 at 10:45 pm |

    Piny,

    The shield laws did make a big difference. They exclude more than prejudicial or irrelevent evidence. Look at the case EricP linked to. A judge refused to allow evidence that a woman practiced S&M, wrote on an S&M website andmet the defendant on a S&M site. When the defendant was accused of tying her up and raping her he wasn’t allowed to put that in evidence. Is this info really irrelevant? The appellate court did say there was prejudice–to the defendant who wasn’t able to fully defend himself!

    That isn’t quite the point I was making. I don’t think that an interest in S&M means she wasn’t raped. In this case the S&M aspects of the sex was used as evidence of the brutality of the supposed rape (he didn’t just rape her, he tied her up and beat her first). I won’t and can’t speak of whether he raped her, I don’t know enough about the case to know. The problem is by preventing him from bringing up her interest in it, it left jury thinking that he might be a pervert and torturer on top of being a possible rapist. Once the S&M aspects of the event was established, it would have been easier for them to believe the rest.

    Imagine you are on jury. You hear that a man tied up, beat and then raped a woman. That sounds incredibly cruel. Compare that with, she allowed herself to be tied up, encouraged him to beat her and then maybe (the question is the core of the case) he raped her when she wanted to stop. I admit that this would make the woman look “slutty” and might encourage the jury against her but in the first case most people being prejudiced against the man since it looks like he is a monster. In the US and Canadian legal system, the accused is given the benefit of the boubt.

  24. randomliberal/Robert
    randomliberal/Robert November 3, 2005 at 11:51 pm |

    Eric, you clearly weren’t paying attention when Kobe was accused of rape a couple of years ago. Many folks were saying that the accuser regretted having sex after the fact, but had consented at the time. Many other whacked out theories were presented, as well. Jeralyn Merritt of Talk Left has an entire archive dedicated to the Kobe case, and even though it’s from the perspective of a defense lawyer (and heavily biased toward Kobe), you can see many assumptions that were made about the accuser because of her previous sex life.

  25. EricP
    EricP November 4, 2005 at 7:38 am |

    Eric, you clearly weren’t paying attention when Kobe was accused of rape a couple of years ago. Many folks were saying that the accuser regretted having sex after the fact, but had consented at the time.

    The other general assumption is that rape victims are usually lying because they are trying to get money out of the defendant, or because they want to blame someone for their having had sex.

    I don’t know if would call that a general assumption about rape victims in general. Maybe rape victims accusing rich celebrities.

    Those cases are more complex because of all the stereotypes involved. One the one hand these celebrities often have a sense of entitlement and expect subservience from the “little people”. On the other hand, many of these men have no problem finding willing sex partners, so the question is always asked, “why would he rape someone when there are so many willing women?”. The flip side is that since they expect women to throw themselves at them (celebrity worship), they assume all women will. They don’t expect to be told “no”. I Kobe’s case, I didn’t see a lot about it being regret after the fact but rather a possible setup.

    Given that there have in fact been false accusations of rape made in the past (Celine Dion’s husband and Wacko Jacko), it isn’t completely unreasonable to raise the question. Should there be an assumption about her motives? Of course not but the bar might need to be a little higher when there could be a financial angle. Or at least the possibility needs to be considered.

    Did Kobe do it? Probably. Did I assume he did it all along? Yes. This case passed the smell test. But, he had good lawyers who knew how to work the system.

  26. Anne
    Anne November 4, 2005 at 9:10 am |

    Randomliberal beat me to it.

    I feel that “celebrity rape” cases just amplify and publicize the stereotypes that are already present. The “water cooler” talk about it — “She just wants his money,” “He’s too handsome to rape anyone,” “He’s married” — becomes part of the stereotypical assumptions about rape in general.

    EricP, have you read about the Haidl case at all? Sheelzebub has a number of posts about it.

  27. ginmar
    ginmar November 4, 2005 at 9:31 am |

    Given that there have in fact been false accusations of rape made in the past (Celine Dion’s husband and Wacko Jacko), it isn’t completely unreasonable to raise the question.

    Uh, yeah it is. You think Jacko was falsely accused? Sure. Meanwhile, you might want to educate yourself as to what women who pressed rape charges in the recent past had to go through. False accusations aren’t as much of a problem as are false acquittals. A guy accused of rape has less than a fifty percent chance of getting convicted. Celebrities are more likely to be acquitted than normal rapists. Your sympathy is misplaced.

  28. ginmar
    ginmar November 4, 2005 at 9:51 am |

    it isn’t completely unreasonable to raise the question

    It’s not unreasonable if your goal is to ensure that rich guys can rape at will, that is. Rich guys can buy lawyers, publicity and all kinds of things. Look at the Haidl case. They came very close to buying themselves a acquittal, despite videotaped evidence.

  29. laurel
    laurel November 4, 2005 at 10:26 am |

    Yes, well I’ ve got a story for you regarding female prosecutors, that is not so swell;
    It turns out that sometimes the sole woman in a den of misogynistic ego ridden male prosecutors, succumbs to the exact same brand of apathy,resentment andf cognitive dissonance, interchangably, as her male counterparts-. I found this out the hard way when I complained about the male states attorney that was handling an intimate violence case, where i was the victim- (assault in first, criminal restraint in first, stalking 2nd,) He was(the male prosecutor) as it turned out, social friends with my assailents attorney,an attorney that was chosen for just this reason-(sociopaths are clever this way). Not to mention,there were 9 months of hearings in this case, a case that shouldve been resolved in two–another way the defendents of these crimes just wait out any verve the prosecutors might have felt at the beggining of a particularly heinous case-(when the bruises are still fresh,and the crime at its most appalling)
    Each month the idiot male prosecutor would meet for lunch with my clients lawyer and he’d fill him with whatever sludge he could think to throw at me-as a potentinal witness, as the victim of these crimes, and this facile moron didnt even bother to see it was true,he simply allowed some words thrown out by the defendents lawyer about me the victim to pass as truth-The threat of a bunch silly lies (including that i was into rough sex)was apparently enough excuse to drop a slew of felonies down to misdemeanors in the sweetest plea deal any batterer ever got;no prison, no medical reimbursement,just a smattering of misdemeanors.
    Now I dont need to tell you what this means to every case after mine where a lawyer uses this age old slur campaign to back off a prosecutor from Serious charges or prison terms for violent crimes-It sets an easy precedent, and also encourages these criminals to feel invincible-In fact this batterer had at least assaulted two other women who he’d scared out of pressing charges at all-and hed said to me “who do you think is smarter- me or a bunch of civil servents” I guess him, and he is out there right now, dressed in armani suits driving nice cars and posing as an “investment banker”-All BS, but again-I begged the female prosecutor in the end to try to verify what he says he is, as it is all con artistry and posturing, but she preferred to go along with her male cronies, and take the easy route- The only person that she ever took a prosecutorial stance with, was me, a victim in severe ptsd. This Because I didnt want to allow this plea deal-the equivalent of a slap on the wrist.
    I remember thinking, can this really be happening-can these “professionals” really be this horrible-what is wrong with them, they are supposed to be the good guys…Its not the sytem, its the people inhabiting it!

  30. piny
    piny November 4, 2005 at 12:29 pm |

    I don’t understand how one who has consented to sex in the past is no more likely to consent in the future than a vigin. I understand your argument is the company line, and I would never rely solely on the relationship between consenting in the past to consenting in the future, but really, there is no correlation?

    You could use equally specious reasoning to argue that a virgin would be much more likely to flip the fuck out after being loved and left and therefore more likely to falsely accuse someone of rape.

  31. piny
    piny November 4, 2005 at 12:37 pm |

    I watched a number of criminal trials when I was in D.C. for the summer. Almost always was the defense allowed to argue whatever it wanted. And they almost always blamed the victim or someone else. It’s up to the prosecutor to reason with the jury and prove his case.

    In California, this is how character evidence is and is not admissible:

    (a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:

    (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.

    (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).

    Here are some other examples of exclusions.

  32. piny
    piny November 4, 2005 at 12:57 pm |

    That isn’t quite the point I was making. I don’t think that an interest in S&M means she wasn’t raped. In this case the S&M aspects of the sex was used as evidence of the brutality of the supposed rape (he didn’t just rape her, he tied her up and beat her first). I won’t and can’t speak of whether he raped her, I don’t know enough about the case to know. The problem is by preventing him from bringing up her interest in it, it left jury thinking that he might be a pervert and torturer on top of being a possible rapist. Once the S&M aspects of the event was established, it would have been easier for them to believe the rest.

    But Jason’s reading of your argument shows how prejudicial that information can be: he read and supported you arguing that a woman’s S&M practice makes her more likely to consent to this particular act of brutality and that the defendant had good reason not to believe her “no.” This is only possible if you accept the argument that consenting to sex sometimes makes you more likely to consent to sex anytime, don’t know a damn thing about S&M practice, and have very low expectations for the responsibility of S&M practitioners. All ignorance translating to inaccuracy.

  33. EricP
    EricP November 4, 2005 at 1:41 pm |

    But Jason’s reading of your argument shows how prejudicial that information can be

    Definitely, it is a tricky situation. I woman’s sexual history is almost never at all important in rape cases and bringing it up can prejudice a jury against the victim. In this case, someone was going to prejudiced against by the revelation or hiding of the information. As much as I feel for the victims of rape, the deference in this case at least had to go to the accused.

  34. Jason
    Jason November 4, 2005 at 3:10 pm |

    piny,

    Thanks for proving my point. The victim’s character is allowed to be challenged by the defendant in every other crime except rape. That is my problem here. I support an unfettered right of the defendant to confront his accusers. Judges give great leeway to the defense to do this–as they should. Why should it be different for rape cases? Is it a case of gender politics trumping defendants’ rights?

    Also, I honestly don’t understand how people don’t see a correlation between past sexual history and future sex acts. Now, I’m not saying that just because someone has had sex before it’s a strong predicter that they consented this time. I actually think that most times this evidence should be excluded as prejudicial. But to me, to say that there is NO correlation, especially in some cases, defies belief.

    Look at the case Eric linked to above (there’s a link to the NYT article there as well). Now do you really believe that the evidence of prior S&M acts was not relevant? Not only as Eric claims, to mitigate the heinousness of the crime, but to prove that she consented. The fact that she had consented to S&M acts before makes her more likely to consent to an S&M act in the future than someone whose sexual history consisted of one partner and doing it missionary style. To me, to insist that there is absolutely no correlation is a sort of willful, albeit principled, ignorance.

    To me it comes down to this: the right of the defendant to confront his accuser trumps the victims right not to testify about unconfortable things. I suspect that behind all of this, as a poster said, is the belief that the defendant is assumed guilty and that they would rather have a conviction than apply our normal constitutional rights. This turns our justice system on its head.

  35. Jason
    Jason November 4, 2005 at 3:23 pm |

    Random Liberal,

    I love TalkLeft. I think she has the best legal blog I’ve seen. She’s also nailed the CIA leak story.

    Anyway, if you search rape shield law on her site you get a bunch of hits. For an example of her debunking the “sexual history is never relevant” argument, at least in the Kobe case, go here:
    http://talkleft.com/new_archives/005520.html#005520

  36. piny
    piny November 4, 2005 at 3:50 pm |

    Thanks for proving my point. The victim’s character is allowed to be challenged by the defendant in every other crime except rape. That is my problem here. I support an unfettered right of the defendant to confront his accusers. Judges give great leeway to the defense to do this–as they should. Why should it be different for rape cases? Is it a case of gender politics trumping defendants’ rights?

    Can you not read? If and only if “offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.” That does not allow all evidence that speaks to character to be presented at trials. It’s an exception to a general rule that excludes most character evidence as prejudicial and irrelevant. In other words, past sexual history is not the only kind of character-based evidence that is excluded.

    Also, I honestly don’t understand how people don’t see a correlation between past sexual history and future sex acts. Now, I’m not saying that just because someone has had sex before it’s a strong predicter that they consented this time. I actually think that most times this evidence should be excluded as prejudicial. But to me, to say that there is NO correlation, especially in some cases, defies belief.

    The pertinent correlation is not between “had sex in the past” and “has sex in the future.” It’s between “had sex in the past” and “had sex with this particular person at this particular time.” That’s the weak correlation.

    Look at the case Eric linked to above (there’s a link to the NYT article there as well). Now do you really believe that the evidence of prior S&M acts was not relevant? Not only as Eric claims, to mitigate the heinousness of the crime, but to prove that she consented. The fact that she had consented to S&M acts before makes her more likely to consent to an S&M act in the future than someone whose sexual history consisted of one partner and doing it missionary style. To me, to insist that there is absolutely no correlation is a sort of willful, albeit principled, ignorance.

    But not more likely in a meaningful sense to consent to a particular act with a particular person at a particular time. Believing that consenting once means future refusals are compromised is believing that there’s no such thing as rape.

    To me it comes down to this: the right of the defendant to confront his accuser trumps the victims right not to testify about unconfortable things. I suspect that behind all of this, as a poster said, is the belief that the defendant is assumed guilty and that they would rather have a conviction than apply our normal constitutional rights. This turns our justice system on its head.

    You use the word “uncomfortable” in this context and you have the temerity to lecture me about willful ignorance? Like I said, this is “normal.” It is “normal” to exclude evidence because it is prejudicial or, in some cases, because of a larger social good. This is true of criminal cases other than rape cases, and true of classes of evidence–like most evidence related to character–not related to past sexual history.

  37. Jason
    Jason November 4, 2005 at 4:14 pm |

    Can you not read?

    I certainly can. And I can comprehend and reason too. It is not “normal” to exclude character evidence put on by the defendant in criminal trials. Quite the opposite. The rule quoted above is an exception to the general ban against character evidence, but a pretty damn big exception. I think you misread it to say that it’s normal. Victims’ character evidence is put on routinely in court rooms throughout the country every day. The reason we allow defendants to put this evidence on is our tradition of allowing a vigorous defense.

    But not more likely in a meaningful sense to consent to a particular act with a particular person at a particular time. Believing that consenting once means future refusals are compromised is believing that there’s no such thing as rape.

    So I don’t believe there is such a thing as rape? C’mon. Did you read my argument carefully? I know you would rather have a staw man to argue with, someone who doesn’t believe in rape, but I’m not him.

  38. Jason
    Jason November 4, 2005 at 4:25 pm |

    From Talk Left:

    Boston Globe Columnist Cathy Young expounds on rape-shield laws today, and is one of the first we’ve seen in recent weeks to outline issues of fairness to the accused.

    After providing concrete examples, she concludes, justly in our view:

    Many feminist groups fiercely resist any weakening of rape shield laws, including a recent New Jersey Supreme Court ruling which allows evidence of past sexual contact between the accuser and the accused to be used at trial.

    Yet feminism should be about equal justice, not just the advantage of women. Women who come forward with charges of rape should not be treated as liars or sluts, but neither should they be given automatic credibility. Being sexually assaulted is a terrible ordeal – but so is being falsely accused.

  39. piny
    piny November 4, 2005 at 4:45 pm |

    Victims’ character evidence is put on routinely in court rooms throughout the country every day. The reason we allow defendants to put this evidence on is our tradition of allowing a vigorous defense.

    But not all character evidence. Some character evidence–quite a lot, in fact–is excluded because it’s considered to be both prejudicial and irrelevant. That exclusion is not considered either by legislatures or, apparently, by you, to conflict with the right to a vigorous defense. You have no basis for the claim that rape-shield laws are exceptional.

    So I don’t believe there is such a thing as rape? C’mon. Did you read my argument carefully? I know you would rather have a staw man to argue with, someone who doesn’t believe in rape, but I’m not him.

    Let me rephrase, for the comprehension-impaired: “rape” is predicated on the idea that a crime is committed if a woman does not consent to sex. If you believe that consent given once–like, say, to an S&M scene, or to several of them–compromises subsequent refusals, you do not believe in rape.

  40. Jason
    Jason November 4, 2005 at 5:33 pm |

    Let me rephrase, for the comprehension-impaired: “rape” is predicated on the idea that a crime is committed if a woman does not consent to sex. If you believe that consent given once–like, say, to an S&M scene, or to several of them–compromises subsequent refusals, you do not believe in rape.

    I think I know how to comprehend my own beliefs. You are intentionally conflating my argument, that past sex acts have SOME relevance in SOME cases, with an argument that if someone consents once they can never be raped. If anyone is failing to comprehend the difference in these two arguments–It is you.

    I know this is an emotional subject and I respect your fervent beliefs. I just believe in defendant rights and I think we have let our emotions make policy that is contrary to our great criminal justice tradition.

  41. ginmar
    ginmar November 4, 2005 at 5:35 pm |

    Cathy Young is a noted anti-feminist. She’s not an unbiased source.

  42. Jason
    Jason November 4, 2005 at 5:52 pm |

    I don’t know anything abuot Cathy Young. But I agree with her point. I got it from Talk Left, which I respect very much.

    I don’t think feminism and being for defendants rights are mutually exclusive. The women I know who work as public defenders I think best epitimize these two beliefs. I remember being surprised when my female law professor, a very liberal woman, said she thought our state’s rape laws were way too harsh.

    Just stacking the cards against male defendants and giving female victims a pass that other victims don’t get doesn’t advance womens rights.

  43. Thomas
    Thomas November 4, 2005 at 6:28 pm |

    The NY case linked above is People v. Jovanovic. It is one of the leading cases interpreting New York’s rape shield law. I think it is hard to argue that the NY rape shield law is unfair to defendants — it has several exceptions, for evidence that:

    “1. proves or tends to prove specific instances of the victim’s prior sexual conduct with the accused; or

    “2. proves or tends to prove that the victim has been convicted of [prostitution] within three years prior to the sex offense which is the subject of the prosecution; or

    “3. rebuts evidence introduced by the people of the victim’s failure to engage in sexual intercourse, deviate sexual intercourse or sexual contact during a given period of time; or

    “4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or

    “5. is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice”

    That’s CPL 60.42, for the lawyers out there.

    Jason, I think this satisfies all your criticisms. In fact, I think it’s at least as fair for folks to criticize the exemptions as being too broad as it is to criticize the statute for hamstringing the defense.

    In Jovanovic 263 A.D.2d 182 (for the lawyers), the judge just got it wrong. The defense was not really trying to put in her conduct — in fact, the defense didn’t care if what she said about her past experiences were true or not. Instead, the defense wanted to put in what the two participants said to each other. The Appellate Division said:

    Initially, we hold that the redacted e-mail messages were not subject to the Rape Shield Law because they did not constitute evidence of the sexual conduct of the complainant. Rather, they were merely evidence of statements made by the complainant about herself to Jovanovic.

    The distinction between evidence of prior sexual conduct (to which the statute expressly applies), and evidence of statements concerning prior sexual conduct, is more than merely semantic. Direct evidence of the complainant’s conduct with others would generally be introduced (if admissible) as a basis to infer that she had voluntarily behaved in such a way on prior occasions with others. In contrast, the use of a statement is not so straightforward. It is frequently relevant not to prove the truth of the matter stated, but rather, for the fact that the speaker made the statement. That is, a statement may be relevant as proof of the speaker’s, or the listener’s, state of mind.

    For instance, here, the complainant’s statement to Jovanovic regarding sadomasochism were not necessarily offered to prove the truth of what she said, i.e. that she actually was a sadomasochist. Rather, much of their importance lay in the fact that she chose to say these things to Jovanovic in the context of her electronic, on-line conversation with him, so as to convey to him another message, namely, her interest in exploring the subject of such activities with him.

    Now, I can see a criticism of this opinion that goes like this: who cares what the purpose is, the defense still gets to tell the jury she’s a slut/pervert/etc. There is that aspect, and it’s a valid criticism. But the way Jovanovic is written, the exception is really narrow: the communications between the complainant and the defendant are relevant to the question of consent. I find that a tough proposition to disagree with.

    Suppose, for example, that I talk about bottoming to some woman, and we agree to do a scene, and she ignores my safeword and does something I can’t handle, leaving me traumatized. If her defense is, “he wanted to do a no-safeword scene and he told me he really wanted me to push him,” then her lawyer is entitled to ask me about conversations that she could have interpreted that way. If I said, “yeah, I’m a bit of a thrill-seeker and I really prefer to do no-limits scenes and just see how far the top will push me,” then the jury ought to hear that. And if all I said was, “I’ve been known to play without a safeword from time to time,” the jury is going to have to decide whether she had any business assuming I meant to do that with her or not.

    (I know my experience as a man is not the same as that of a woman, even if I were the victim of a sexual assault. The social constructs around gender make it a very different proposition. I’m not saying it’s the same, I’m just using the example to illustrate the evidentiary issue. )

  44. Joel Sax
    Joel Sax November 4, 2005 at 6:36 pm |

    As I watch this discussion unfold, I find its course very odd. No one argues like this on the topic of murder. We don’t say that the character of the murderer is such that s/he deserved to die.

    The main difference between a murderer and a rape victim comes down to this: the rape victim survives the attack. So she has to testify against her attacker.

    The kinds of questions that rape shield laws block are ones that do not pertain to the facts of the case. The question in all these trials is did rape occur? As the Haidl case demonstrates, being a slut does not grant one license to abuse the woman. The question is PERMISSION. If the man’s DNA has been found coating the vagina and if there are signs of forced entry, then that is reason enough to convict him. If the woman had been dead, that would suffice, as well. So why the difference? Some guys just want to get away with it. Or else they think they’ll get more snatch if the laws don’t exist.

    Nice try, but a woman’s promiscuity doesn’t matter. Sluttishness is not a reasonable doubt.

    Sorry Lauren and Jill: consider the audience to whom I am speaking.

  45. EricP
    EricP November 4, 2005 at 6:56 pm |

    I think I know how to comprehend my own beliefs. You are intentionally conflating my argument, that past sex acts have SOME relevance in SOME cases, with an argument that if someone consents once they can never be raped. If anyone is failing to comprehend the difference in these two arguments–It is you.

    The problem Jason is you are looking to throw the baby out with the bath water. You say “SOME relevance in SOME cases” so because it could sometimes be relevant, it should always be subject to being brought up in court. That would have a horrendous effect on victims for the benefit of in extremely small number of cases.

    I might favor the consideration of small crack in the shield where subject to stringent judicial review, the information can be presented in a way that prejudices the jury against the victim as little as possible. The defense would need to prove the need for this information and the benefit of the doubt would go to the victim’s rights.

    Of course, this probably wouldn’t be workable since not all courts and judges are equal. Even if his decision was reversed on appeal the additional victimization of the victim would already have occurred. So while I favor it in theory, in the real world it would still be subject to abuse. That doesn’t mean we should stop looking at options.

  46. Lauren
    Lauren November 4, 2005 at 7:00 pm |

    Joel, no problem. Between you and Lynn, I love your commentary.

  47. Jason
    Jason November 4, 2005 at 7:21 pm |

    Thanks Thomas for the info. Very interesting. I would indeed be happier with that statute than a blanket shield. At least it allows the defense to offer evidence if it is relevant (5). And it would cover the Kobe Bryant type sitution where there is a question of whose DNA is on her. I don’t know if it would cover the Kobe situation where the defense wanted to ask her about her bruises and see if someone else might have caused them.

    I also like your hypo. It shows why we need to delve into past sex on some occassions. It’s not so simple to just say, “just because you consented before doesn’t mean you consented now”. Sometimes you need the information of your previous groundrules to understand the current situation.

    Joel, the reason noone is talking about murder is because defendants already have the right to bring in character evidence about murder victims. “Blaming the victim” happens all the time.

    Eric, I appreciate you translating your comment into vulgarity so simpletons like me can understand you. And I’m sure the female hosts appreciate your apology for offending their fragile minds. As to throwing out babies–I love babies and would never do such a thing. As I said, it would be rare and have to relevant to be introduced. And it would first be done without the jury present so the judge could set the parameters of the cross-examination.

  48. EricP
    EricP November 4, 2005 at 7:42 pm |

    Eric, I appreciate you translating your comment into vulgarity so simpletons like me can understand you. And I’m sure the female hosts appreciate your apology for offending their fragile minds.

    Wrong person. I don’t people around here enough to consider being vulgar even if I was so inclined. You meant Joel Sax.

  49. EricP
    EricP November 4, 2005 at 7:47 pm |

    You know what I find the saddest about this whole issue is the fact the woman might not be chaste virgin would prejudice a jury. The fact that enough people in society question a woman’s ability to tell the truth just because she has a healthy sex life, is pretty depressing. We all accept it as fact because we know it is true but what a sad statement on society it is.

  50. Jason
    Jason November 4, 2005 at 8:02 pm |

    Sorry EricP,

    I agree that the sad part is jury prejudice. I think I wouldn’t and I don’t think my community (San Francisco) would either. But I’m sure there are a lot of jurors who are prejudiced. Check out this description of jurors who were allowed to pose questions to witnesses:

    http://talkleft.com/new_archives/013006.html

    Pretty sad.

  51. Jason
    Jason November 4, 2005 at 8:12 pm |

    And there probably a million ways jurors are prejudiced. I was just in the Midwest and some older people in my family thought it scandalous, scandalous I tell you, for people to get tattoos. I wonder what type of credibility they would be given.

    Also, when I was in D.C., I remember the public defenders giving the defendants glasses so they would look smarter.

    Think how hard it would be to pick a jury (from either side) where you were putting evidence of BDSM on.

  52. Thomas
    Thomas November 5, 2005 at 9:51 am |

    I would indeed be happier with that statute than a blanket shield.

    What I was trying to show was that the “evil rape shield law” is a bugbear, and real statutes are more flexible than their opponents concede. They are designed to permit logically relevant evidence, and only exclude “she’s a slut” type evidence. If you know of a rape shield statute that has the features you object to, let us know.

    Also, IIRC, Jovanovic specifies that alternate source of physical injury is a reason to permit evidence of other partners.

  53. Antigone
    Antigone November 5, 2005 at 2:25 pm |

    No, there really isn’t any link between consent in the past and consent in a particular case. To say so tells every women that has ever consented to sex that she will have a harder time proving “her credibility” in a future rape case.

    Here’s how to turn that one around: she consented to sex in the past in didn’t call rape, but she did on this one. Why wouldn’t she just call rape on all sexual activity that turned sour?

    IT is irrelevent, and this is why I get upset that people start going off on rape shield laws: I have consented to sex before, with even more than one guy. If I was raped, my credibility would be more suspect than if I was a virgin. Would sense does that make?

    I believe in a fair trial, not a mob trial. But attack the accuser? Unless you think there are roving bands of women out there wanting to screw guys over by going through a painful, humilitating rape trial, rape shield laws are COMPLETLEY necessary.

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