I’ve already mentioned that a police officer is on trial for rape. The defense has an interesting new definition of consent:
Mr Gotlieb told a jury in Auckland District Court today that five defense witnesses would be called. He said one witness, Les Gardener, was expected to tell the court the woman suggested sex with him earlier in the evening, before she was allegedly raped by the policeman.
What is the judge doing? Why is that evidence?
For the judges and defense lawyers out there, any woman can say no to sex. A woman can say no to sex with one man after suggesting sex with another man. I know that’s a hard concept to grasp – but if you have trouble with it I’m sure I could provide a mallet.
Amp mentioned in his last article the
I’ve got to agree with you, this is completely irrelevant to whether a rape took place. The idea, I believe, is to suggest that “she was looking for sex, so she can’t complain when she got it”!
It actually conflates rape with sex, something that feminists are accused of doing.
(Clarification: The “evidence”, not Amp’s comment, obviously)
Maia,
It might not be allowed in the U.S. I am going to EXPLAIN it (which requires a relatively neutral tone) so please don’t jump on me–I’m just explaining, because you seem actually curious. I’m not going to continually insert “in theory…” and other caveats, but this is just an explanation.
In any case, there are a few types of evidence.
for example, this might be presented to address the frame of mind of the accused. Rape is an intent crime, and the accused’s intent is highly relevant. If the victim was making statements which would lead the accused to believe she wanted sex (even if she didn’t) then it can affect the criminality of the conduct. I can’t analyze it obviously because I don’t know what she said. But (for example) if she was telling people “cops are hot; I want to fuck that cop; I love to be held down”–and YES I KNOW that didn’t happen, this is just an example–and the accused heard this either first or second hand, it could affect the verdict.
This type of evidence is usually admissible in U.S. courts if the lawyer is good.
you also have to remember that in many situations, rape is a he said-she said situation. This is common where there aren’t signs of violence, for example. In those situations, the jury has to judge whether, in its mind, the story “smells right” from each side.
Take a hypothetical case where she says it was rape with threats of force, and he says it was consensual.
If the jury were to know that the victim was a religious virgin, who had sworn to many people that she was saving herself for marriage, had previously said “yuck!” to any physical contact, didn’t have a boyfriend, and was known to avoid all intimacy with men, then they’d probably tend to think that the victim didn’t suddenly become a raving nymphomaniac. So if the accused claimed “it wasn’t rape, she jumped me!” it’s not going to fly.
Similarly, if the jury knew that the victim was extremely sexually active, often picked up people in bars and slept with them in their cars, had indicated she had a sexual interest in the accused, was known to follow up on her interests, etc, then the jury might be inclined to believe that the sex was consensual.
I deliberately put in two different examples, because most folks’ innate reaction when reading example #2 is to get really pissed. Be aware that if example #1 makes sense, so does example #2.
This type of evidence can actually be really relevant. It’s easier for many people to admit it’s relevant if they look at the first example. But it can also be prejudicial. in any case, it’s difficult to admit in U.S. courts and tends to be barred by rape shield laws.
Sailorman: I thought she meant that
She wanted to have sex with Les Gardener.
(never mind, you didn’t contradict that. Oops.)
But a woman who consents to sex with any man ever who is not her husband consents to sex with any man at any time. I think that’s only fair.
Seriously, though, that’s what it feels like sometimes. And by “sometimes” I mean “all the fucking time.”
Ergh, one more reason to feel bitter today.
My intuition with regard to Sailorman’s examples above would be to be more inclined to believe the sexually active woman’s claim of rape. I would think that the religious virgin who told everyone she was saving herself for marriage would have more of a motive to lie to both others to save her reputation and to herself to convince herself that she didn’t sin. But why would the sexually active woman lie? My intutions are probably just as wrong as the traditional ones, but I really do not even understand the traditional ones.
And actually, I probably should not be on any jury where the evidence comes down solely to one person’s word against another. I am so convinced of the tendency of ALL humans to lie about ANYTHING, it would be nearly impossible for me to believe there was no reasonable doubt that one or the other (or both) were lying. This might make some crimes – like date rape – nearly impossible to convict. I do not know the solution, since I agree with the beyond a reasonable doubt standard, but that is more reason I should not be on such a jury.
No, that’s not true; example #2 is not logical, but example #1 is.
Example #1: This person never, ever voluntarily eats any fruit. Oranges are a fruit. Logically, we can safely conclude that this person never voluntarily eats oranges.
Example #2: This person voluntarily eats some fruits. Oranges are a fruit. However, we can not logically conclude from this information that this person voluntarily eats oranges.
Sailorman, your last line swallows your entire argument. In the US, in most states, rape shield laws prevent almost everything you mentioned.
Rape shield laws generally bar all information about the prior sexual conduct of a complaining witness in a rape case, with a few exceptions. The exceptions vary by statute, but sometimes include the prior conduct between the complaintant and the defendant, for example, or conduct that may provide an alternate explanation for physical evidence.
Some statutes also have “catchall” provisions. In our system, generally judges get to weigh the undue prejudicial effect of evidence against the probative value that it has. While that’s usually the standard for admitting evidence prejudicial to the defendant, it is an ingrained part of how judges conducting criminal trials think. In applying catchall provisions, the real rule tends to be whether the effect of the evidence in conveying unchastity or unworthiness will overcome the probative value.
Sailorman, the stuff you talked about — that a woman likes cops and thinks they are hot — is going to fail that analysis in front of every judge I’ve been before. That’s classic rape-shield stuff, where the obvious argument is really that the accuser is a “bad woman” and “slut,” and the formal argument is window dressing.
(The one argument that’s usually a solid winner on rape shield challenges, IME, is an alternate source of injury.)
What Maia is talking about is not going to come into evidence under any rape shield statute I’ve seen. One proposed witness will say that the complainant suggested sex with person A at time 1, and from this apparently the defense seeks to infer that sex with person B at time 2 was consensual …? That has a probative value of just about nil. However, it is pretty much explicitly an argument that she is unchaste. Any attempt to make the argument that this is really probative of her consent that doesn’t travel through “she’s a slut, so she must have” is probably frivolous on these facts. So, from that I infer that New Zealand has nothing like the kind of rape shield protection that we have in the US.
Before I reply: Y’all understand, right, that I am trying to EXPLAIN this because I happen to have taken courses (in law school) in which we discussed this in excruciating detail? I am not taking the position this is OK.
‘Kay?
Now:
Amp, it’s more like this:
Person #2 eats a lot of oranges.
An orange is eaten.
Because we know person #2 eats a lot of oranges, we assume they’re more likely to have eaten THAT orange.
This isn’t a logical issue. Crime never is. It’s a matter of BELIEF, not TRUTH, in criminal court.
But in any case: we could logically conclude that person #2 in your example is more likely to eat oranges than #1.
Hell, enough with the oranges. Back to criminal activity.
We are cautious around convicted rapists because we believe that people who have raped before are likely to rape again.
This an element of propensity evidence, for example, which affects the accused. There’s also propensity evidence which affects the victim.
Generally speaking, when people claim to have acted in a manner that goes against what we believe to be their propensity, we are more suspicious. It applies to everyone in court though it’s not technically admissible in many cases.
Lots of folks will reject example #2 because they don’t want to engage in victim blaming, yadda yadda. I’m not blaming the victim; I’m merely illustrating a point. Here, let me use a non-rape example:
I’m known for starting fights with people.
I bring a claim against someone, saying they attacked me.
He responds “Sailorman started it!”
Does my history matter?
The main reason it’s relevant in a rape isn’t the transfer to the particular person. Obviously, one doesn’t claim that wanting to have sex with A, or A&B&C&D, means you want to have sex with anyone who walks up and asks.
Whaere it DOES tend to get relevant is in other aspects of the defense. So the answer to “why would she get in the car if she wasn’t forced?” might be “I don’t know; she got into cars and had sex with 5 different people in the last 2 days, that’s not especially good evidence she was forced given those incidents.”
Sailorman, that’s why I mentioned the prej/prob analysis: though you can make a probabilistic argument abour propensity, the probative value of that reasoning is very small. Sure, the person that doesn’t eat fruit at all is less likely than the rest of us to eat an orange, but as Amp points out, that’s hardly a strong case for orange-eating. Against that weak inference, the social force of “she’s a slut!” is very strong — a cornerstone of patriarchy, in fact. So, because the slut argument is so strong and the probabilistic argument is so weak, the probative value of allowing the evidence of a complainant’s prior sexual conduct is dwarfed by the prejudicial effect … and that’s the public policy behind rape shield laws.
BTW, I wouldn’t assume that Maia, or any reader here, does not get the probabilistic argument. But I, and probably a lot of us are so concerned about the historically powerful pernicious prejudice of imputing unchastity (we all remember Kobe) that many of us take a hard line on this kind of argument. Apologia for the admission of evidence of unchastity is effort in the service of a bad cause.
Hmm. Well, I tend not to take as hard a line on this; feel free if you wish, but I think hard line views are more often incorrect than not in some important aspect. I prefer to analyze it more specifically: whether or not something is ACCURATE, for example, is pretty unrelated to whether it is patriarchal, good, desirable, fair, etc. Those other issues are important in the overall discussion of whether something is appropriate, but all to often “hard line” folks appear to confuse the issue.
The ‘orange’ example is a poor one, as I’ve explained. It’s not really only about probability. A more reasonable use of propensity evidence would be more like what I’ve said: Often in rape cases, the public/jury asks “why would ____ do ____?” as a method of determining truthfulness and ‘believability’. We’ve all heard it:
“Sure, he says it was voluntary. But WHY WOULD SHE have…. had sex with an ugly guy/gotten into his car/agreed to have sex with 2 guys at once/slept with someone she insulted the day before/agreed to be videotaped/spoken to a Republican…. IF SHE WASN’T FORCED?”
The implication of the above statements is “…because nobody who wasn’t forced would do those things.” So the fact noted is considered to be added evidence a rape occurred. “Nobody would do that on their own” and so on. Propensity evidence is handy to answer the “why” question. That’s why it can be extremely relevant.
What I find fascinating is the ease with which folks would tend to accept propensity evidence in favor of the accuser, but not against her. I think your attempt to escape from that example is a stretch.
Anyway, I’m of mixed feelings about rape shield laws. I know why they were put into place, and I like the fact that they make it easier to bring charges, which increases the # of rapists convicted, which is a good thing. But I’m generally on the liberal side when it comes to criminal law, and I strongly dislike the removal of potentially beneficial evidence from the defense.
Sailorman:
Um, they are more likely to have eaten that orange. This is an easy consequence of Bayes’ theorem, subject to very reasonable assumptions.
That’s a shame. It should be a matter of WHAT CAN BE PROVEN, not BELIEF, in a criminal court.
Tuomas:
How do you know that?
The goal of the defence is not to prove that she ate the orange, but to show that there is reasonable doubt that she might have. Showing even a small increase in that probability could be a significant legitimate contribution to the defence case. Consequently disallowing that evidence could significantly hamper the defence. Miscarriages of justice that way lie.
Eh, not Tuomas, t’was Thomas, who is IIRC a lawyer.
Different guy.
That’s what really pisses me off – apparently in 1993 we had major reforms of our rape laws, and the new laws were supposed to be some of the most feminist influenced in the world. But the judges aren’t using them
here’s a report of the actual testimony – ARGH – I repeat what was the judge thinking.
I beg your (and his) pardon.
The problem with Sailorman’s two examples of alleged rape victims’ history is that the likelihood that a woman consented to some man is not the same as the likelihood that a woman who testifies that she was raped consented to have sex with that man. Equating those two — very different — likelihoods skews people’s perception and serves as a distraction from the evidence and testimony in a particular case.
That can’t be a good thing for whoever is innocent.
the ease with which folks would tend to accept propensity evidence in favor of the accuser
“Folks” being a jury not allowed to hear such evidence?
The answer to the “Why would she…” question is “Because she’s a slut”. And a slut will do anything and can’t say no, and if she does, who cares? It’s this mentality that drove the implementation of rape-shield laws.
Mythago:
Actually, AFAIK rape shield laws were primarily passed because the defense would pull in so much evidence relating to the victim’s sexual conduct, and ask such extraordinarily personal questions on the stand, that many women who had been raped were essentially too scared of the process to even want to go to court–even if the state would win.
Under the standard rules of evidence, which tend to favor admission of testimony, victims might get asked “so when your previous boyfriend tweaked your nipples, did you like it?” and other, far worse, questions. In other words, the victim was on trial. Nobody even wanted to testify. Rape shield laws were passed to prevent that from happening (to some degree). That’s a good thing.
The truth is, though, that they also occasionally are used to bar evidence which may well be relevant. And that’s a bad thing. I tend to support the goal of rape shield laws which aims to protect the victim from unrelated crossexamination. But I also generally cringe at the concept that a large slice of potentially relevant evidence is per se excluded from the jury.
From a legal perspective, I think it was a better thing when judges would rule directly on the evidence. I think the “admit all potentially relevant evidence” tactic is one of the powerful rights we grant to defendants and I am uncomfortable that we have singled out a class of suspects from whom we withhold those rights. That doesn’t mean I don’t understand why rape shield laws have positive elements. I’m just not sure how I feel about the positive/negative balance overall.
If the crime was a non-sexual assault would the victim’s actions in the past have any bearing? You’d need to know if the accused had a history of attacking people under similar circumstances, but would you introduce evidence that the victim was once hit by a car driven by someone else to explain why the accused thought the victim would be delighted to be kicked in the ribs?
Kaethe,
See my response in #10.
Remember that we don’t KNOW beforehand whether things will actually affect the jury. So the operative question is whether the jury gets to look at it at ALL.
Perhaps some more examples might help.
Q#1: In which (or all, or none) of these scenarios would you want to ALLOW the jury to HEAR the evidence given?
Q#2: Why?
Q#3: Does your perspective change if you imagine yourself as the victim?
Q#4: Does your perspective change if you imagine yourself as the accused?
A is accused of assaulting B.
A claims B started the fight.
B denies starting it.
A wants to show the jury that B started two fights last week with other people.
A is accused of stealing from B.
A says B stole it from him, that it belongs to A, and that A was just taking it back.
A wants to show that B stole something from a different person in the last month.
A is accused of threatening to injure B.
A claims B provoked it deliberately.
A wants to show
A is accused of raping B, in his car, outside a well-known club.
A claims it was consensual. As part of A’s defense, A plans to attack the state’s position, and claim that B 1) entered A’s car voluntarily; 2) removed her own clothing; and 3) had consensual sex, but later claimed it was rape.
As part of the accusations against A, B claims 1) she would never enter a strange man’s car; 2) her clothing was removed only because of threats; 3) she would never have had sex with someone she didn’t know.
A wants to show that B frequently goes to the club, where she meets men, enters their cars, and has sex. A wants to do this to counter the jury’s likely presumption that A’s actions were nonconsensual.
They’re not simple questions. I guess I’ll say this: You may come down on one side or the other. But if you think the answer is “completely obvious” and that the other side’s arguments have no merits whatsoever, chances are that you’re not completely understanding the issue.
B claims 1) she would never enter a strange man’s car; 2) her clothing was removed only because of threats; 3) she would never have had sex with someone she didn’t know.
Opens the door. If the prosecution asserts, “B does not get into cars with strangers,” that’s a different analysis. Unless the prosecutor puts that in evidence, A’s counsel cannot cross-examine B by asking, “so you get into cars with guys you don’t know and have sex with them, right?”
This is important, Sailorman. If the complaintant asserts something like OJ said in the civil trial, “I would never wear those ugly shoes,” that “opens the door.” Prosecutors are generally careful not to put things like that at issue where, if it’s not an issue, the defense is barred from making it one.
Also, Sailorman, your analysis of the origin of rape shield laws is only half of the story. The intimidation of the complainant was a big factor; but the tactic also worked even when the victims went to trial. Jurors acquitted in cases where the complainant didn’t meet their moral standards; in fact, they still do. In the second OC gang rape case, the prosecutor had to beg the jurors to check their assumptions, and tell them that even a prostitute has a right not to be raped. Thankfully, they listened and convicted the men that sexually assaulted a woman on videotape while she was unconscious — but why didn’t the first jury do that?
The idea of jurors as logic-machines that tabulate the evidence based on formal logic is just wrong. People do not operate like that. People make analyses of credibility and determinations of state of mind with all their preconceived notions in operation. If we really thought that jurors acted that way, then prior bad acts evidence would be generally admissible. In fact, but for some exceptions, it is inadmissible — because the undue prejudice outweighs the probative value.
Yes, i know about opening the door. But even absent that assertion by the prosecution, the evidence remains relevant. The defendant cannot preemptively address the issue, but the jury may well consider it even if it’s notraised by the prosecution.
You know as well as I do that the undue prejudice test is usually extremely difficult to meet. And in fact it’s not often used in criminal cases unless it is raised by the defense. Here, it’s undue prejudice to who? The State? The State doesn’t get prejudiced, and the prejudice to the victim is irrelevant in a criminal trial. I don’t think that’s a very strong argument.
The truth is, though, that they also occasionally are used to bar evidence which may well be relevant.
That’s true of all rules of evidence. There is no “admit all potentially relevant evidence” standard at all.
Sailorman, I think what I just argued was that the undue prejudice test is met all the time where evidence will lead a jury to believe that a party is a bad person, so much so that the jury may overlook the actual evidence to reach a result. That person is usually the defendant because the main purpose of constitutional rights is to guarantee one’s liberties as against the government. But the public policy that we have adopted, as a nation and based on a history of abuse, is to limit a kind of evidence that has a horribly prejudicial effect on the complaining witness in a particular kind of case.
Do you really think that juries are likely to dispassionately weigh evidence of a woman’s past sexual conduct and try to determine, for example, whether a claim that a woman consented to sex with a coworker in a parking garage after a night out with the office crew is more credible based on whether she had sex with some other guy in some other circumstance? Or do you think that the jury is more likely to consider that evidence in determining whether she’s a person whose rights they are willing to respect? Because I think the answer is the latter. In that way, the interest of the criminal justice system in hiding information from the jury to try to keep them focused on the legally cognizable issues is just as justified and important in the rape shield case as it is in the prior bad acts case.
Lots of rules of evidence are driven by concerns of public policy — for example, settlement discussion privilege and subsequent remedial actions. Are you arguing that rape shield laws don’t vindicate as valuable a public policy as this?
Thomas:
Absolutely. And those who want to bring in the alleged victim’s sexual history wouldn’t want the alleged rapist’s sexual history introduced as evidence in those same cases. Many times juries don’t know when a defendant has a history of rape allegations or convictions.
Just as a woman’s history of consent doesn’t mean that current rape charges are false, a man’s history of rape doesn’t mean current rape charges are true.
I think the issues about previous conduct miss an important point: This isn’t a case of the man first claiming the woman had consensual sex with him and the woman then claiming they never had sex. In that case her behavior in the past might matter, because it would be her replicating something she’s been known to do. However, the case is about her saying someone forced her to have sex and someone else saying she did it voluntarily, and the fact that someone has lots of consensual sex does not make them more likely to lie about rape. To use the fruit analogy, just because someone is known to eat oranges doesn’t make them more likely to create some story out of the blue about how someone force-fed them an orange.
More directly to the point, just because someone sells something doesn’t mean that you have the right to take it from them, even if selling it is illegal.