- Do the majority of Republicans favor abortion rights? They do according to a new poll, causing the Republican Pro-Choice Coalition to change their name. Here are articles from a feminist website and from a right-wing website.
- Nowadays, even a videotape of someone being raped isn’t enough for a conviction, if the high-priced defense attorneys call the victim “slut” often enough. Who’s on trial?, this LA Times article asks. Blogger Jeralyn Merritt of TalkLeft is quoted in the article; although I generally admire Ms. Merritt, I’m left wondering if there’s any attack on an alleged victim that she wouldn’t support, if it helped a defendant.
- Quote: “I don’t think it makes you gay just because you beat off to images of Brad Pitt.” Via One Good Thing.
- Cool snowflake toy. I really began enjoying it once I realized that I could add more flake details while it was rotating in 3-d. I had fun with this straight, but probably it wouldn’t be a half-bad time stoned. Via #!/usr/bin/girl, which is stooped low under the weight of all those neato-keen links (and which I found via One Good Thing).
- Fun anecdote about someone who was employed by a major movie studio to read novels, summarize them, and recommend if they should be optioned for movies or not.
- As some of my readers may know, in high school I worked in Norwalk, CT, as Daisy Duck. Then, as an adult, I moved to Portland, Oregon, and started a website. Here’s the odd thing: would you believe that I’m not the only person who has that exact biography?
- The current issue of Willamette Week has a cover story on blogs that begins: “Portland is home to thousands of Web logs. Most of them suck. Here are 17 that don’t.” So I’m flattered that “Alas” made their short list. So did “Alas” blog-child/blog-parent Long Story, Short Pier. The lucky 17 includes a few neat blogs that I had never heard of before, so if you’re looking for neat-o blogs check out the story.
- Speaking of me, there’s a chapter by me in this Xlibris book. The book is mostly concerned with feminist responses to anti-feminism and men’s righters, I think.
[…] Alas, a Blog: He’s back – get him! […]
It’s not really news that most Republicans are pro-choice. Polling data has shown that pretty consistently for many years.
73% of Republicans are pro-choice? I don’t believe that for a minute. 73% of the population as a whole isn’t pro-choice, and that is including Democrats. Why would the pro-life party somehow be more pro-choice than the overall population?
Well, if you define “pro-choice” as something like “in favor of the right to abortion for any reason at any time during pregnancy,” then the number is probably very much lower than 73%. But if you define “pro-choice” as something like “in favor of a broad but not unlimited right to abortion, under which most current abortions would remain legal,” then 73% is very plausible.
Remember, almost 90% of abortions in America take place during the first trimester of pregnancy. Thus, even someone who favored a complete and total ban on all abortions after the first trimester, without even a life-of-the-mother exception, would still leave almost 90% of current abortions legal. And a total ban on abortion during the third trimester would still leave 99% of current abortions legal.
Of course, you don’t have a snowball’s-chance-in-hell of passing even a third-trimester ban, let alone something stricter than that.
Perhaps Don P. missed the whole debate over partial-birth abortion bans, which passed both at the federal level and in about 30 states in the 1990s. A snowball in hell must have a pretty good chance after all.
Oh, and the ONE THING that pro-choicers kept harping on, over and over, is that these partial-birth abortion bans would really do much, much more than just ban partial-birth abortion. No, the laws were all supposedly written so as to ban most abortions.
Yet the partial-birth abortion bans passed anyway.
Joe M:
Perhaps Don P. missed the whole debate over partial-birth abortion bans, which passed both at the federal level and in about 30 states in the 1990s. A snowball in hell must have a pretty good chance after all.
Um, the federal Partial Birth Abortion Ban has already been partially invalidated by the courts and seems very likely to be struck down in its entirety because, amoung other things, it contains no exception for the health of the pregnant woman.
Even if the law is upheld, it is unlikely that it will prevent even one, single, solitary abortion, because it bans only one particular type of procedure. Abortion providers would just use another procedure instead.
But that’s not all. Even if the law were upheld, and prevented all abortions that currently use the banned procedure, and no other procedures were substituted for such abortions, it would still reduce the abortion rate by only a tiny fraction of a per cent. It wouldn’t come close to preventing even the 1% of abortions that take place during the third trimester.
In other words, the PBA ban does essentially nothing. And to achieve that nothing, the anti-abortion movement has invested millions of dollars and many years in advertising and lobbying, and a huge amount of political capital.
But keep hope alive, Joe. You might the lottery jackpot, too.
Joe M:
Oh, and the ONE THING that pro-choicers kept harping on, over and over, is that these partial-birth abortion bans would really do much, much more than just ban partial-birth abortion.
Most or all of the state PBA bans have already been struck down, as a result of Stenberg v. Carhart. Even if the laws were upheld, they probably wouldn’t prevent even one abortion, for the reasons I explain above.
The organized pro-choice movement, like all lobbyists, conservative or liberal, exaggerates the threat its opponents present to its cause. Same as the National Right to Life Committee, and the ACLU, and the NRA, and the NRDC, and the AARP, and so on. They all do it. That’s how they excite their potential supporters and bring in the funds.
In other words, the PBA ban does essentially nothing.
Wow, them there pro-lifers must sure be dumb as stumps, pouring time and money into laws that don’t stop abortion.
Don P. rightly points out that almost all partial-birth abortion laws have been struck down by the courts. How right that is.
But he originally said, “Of course, you don’t have a snowball’s-chance-in-hell of passing even a third-trimester ban, let alone something stricter than that.” The word “passing” doesn’t mean “defending it in court.” It means “passing” a bill by the legislature. And that did happen in several dozen cases.
* * *
Very interesting to see the opposite instincts going on in the pro-choice camp. On one hand, there’s the instinct to exaggerate what partial-birth abortion laws might do, so that they seem really, really dangerous.
On the opposite side, there’s good ole’ Don P., whose instinct is to say that the partial birth abortion laws wouldn’t do anything at all, even if they were enforced. Why does he have this instinct? So that he can pretend that the American people would almost never (i.e., snowball’s chance) pass a law that would restrict abortion in any meaningful way.
So which is it? Dangerous threat to most abortions? Or proof that Americans wouldn’t do anything meaningful to restrict abortion?
* * *
Actually, it’s the opposite of both: Partial-birth abortion bans were presented as a dangerous threat, but this was completely exaggerated: No prosecutor anywhere even tried to enforce bans on partial-birth abortion, let alone other types of abortion. So number one is out. But pro-choicers argued to the public repeatedly that these laws were dangerous, and yet the laws passed anyway, indicating that the American people ARE willing to restrict abortion. So number two is out too.
You know, Amp, I’ve been rather underwhelmed by Talk Left’s knuckle-dragging take on sexual assault survivors for a while now. Though, to be fair, she also seemed to swallow the idea (put forth by Roy Black) that Rush Limbaugh isn’t responsible for breaking drug laws, he was a victim of his evil golddigging maid.
I tend to agree with Ms. Merritt on this issue.
First, as “tough on crime” politicians increase the penalties for every crime, it becomes more justified to expand the means of defense. I mean, is 55 years really appropriate even for a proven, admitted gang rape? A 20 year old man should go to jail until he is 75? Faced with that penalty, I cannot think of a defense tactic I would not use, especially if there is any evidence that the consent was “ambiguous.”
The term “consent” is actually a very widely-used defense in criminal and civil cases, and has two prongs: express and implied consent. Express consent is actual words of consent. Implied consent is implied from the circumstances.
In my world, “implied consent” means that if, after a good date, when the woman invites me back to her apartment for a drink, I am justified in kissing her goodnight without being sued for assault. I am NOT justified in groping or raping or anything like that. That WOULD be assault.
But then, I don’t hang around with a lot of girls who have multiple sex partners in short periods of time and want to be porn stars.
So I try to imagine what it would be like if I DID live a world like that. Since I cannot imagine actually raping someone, I try to get into the rapists mind – – –
What if, in my experience, hanging out with a girl at a party and getting smashed was considered an invitation for sex? What if, for the past 10 weekends, I had gone to a party, gotten stoned and drunk with a girl I hardly knew, and then had sex with her while we were both smashed? Sometimes I’d have sex with multiple girls. Sometimes, the girls I’d have sex with would go off and have sex with other guys. None of this was considered rape by the girls in question, and there have been no criminal complaints.
Now, what if I got to a party the 11th weekend, and there is a girl there who is known as a “slut” in the neighborhood, and who I’ve heard wants to be a porn star. At the party, we all drink and do drugs like we always do. Now, I’m hanging out with this girl, and she’s blasted, and I’m thinking, “Girls come to parties like this to get blasted and have sex. I know this because that is what has happened every weekend for months.”
Now, in the situation where the girl is practically unconscious drunk, there can be no meaningful express consent. If a girl came to MY house and got unconscious-drunk, that would not be implied to be consent for anything except for me to take away her car keys. But in the context of a party in a drug-and-sex culture, could this conduct not be considered IMPLIED consent, in just the same way that my date IMPLIED consent for a kiss even though I never expressly asked if it was okay to kiss her?
Or, even less, what if it WASN’T implied consent, but a reasonable kid under those circumstance might reasonably CONSIDER it to be implied consent. What if the kid made an honest mistake that getting drunk and stoned constituted implied consent? Is that worth 55 years in jail?
The common argument is that just because a girl gets drunk or is a ‘slut’, she is not consenting to sex. I agree, based upon my empirical view of the world in which I live. My only point, however, is that this view of the world is simply empirical — not logically necessary.
If I play football on Sunday in the park, I impliedly agree to get tackled and thrown to the ground. I cannot sue for assault, even if a rough hit breaks my leg.
Similarly, I can imagine that there are places and situations (at least theoretically) where a long tradition of conduct could be demonstrate implied consent for sex when the girl drinks and uses drugs. I do not know if this article was an example of such a situation, but if the boys thought it was, then it only seems fair to let the defense attorneys lay the groundwork to make that claim.
So if someone is in a culture that claims no means yes, does that give them permission to rape? Is “no” implied consent?
If you play football, you are conscious and aware of what is happening. If you were unconscious and someone tackled you or harmed you, that would be assault.
First she was a slut and was asking for it. Then the defense claimed that she wanted to be a porn star, and had been in a sex video before (which would make her credibility stronger, IMO–she’s consented to this before, so why would she suddenly decide to accuse these guys of rape? She’s not exactly espousing her virginity.) Then the defense claimed that she was actually faking being out cold. The latest is that she was out cold, but it was implied consent.
She was out cold. They knew she was out cold. They had sex with her anyway. They used a can, a Snapple bottle, a pool cue, and a lit cigarette. When they lost the videotape, they panicked. They panicked because they knew what they did was rape–if she was so into what happened, knew about it, and gave consent, it would have been no big deal to get the video (evidence) back. They knew exactly what they had done.
You know, I never thought this post would get more comments than the Spiderman post.
* * *
Richard, I think implied consent usually has a “reasonable person” standard (although it may vary from state to state). Otherwise, logic like yours could lead to the conclusion that if someone honestly regards struggling and repeated cries of “no!” as a sign of consent, then that person could rape fifty people and the law could’t touch him, since from his perspective he had implied consent.
Regarding this particular case, as I understand it the defense was claiming express consent, not implied consent. They were saying that before the videotape began, the girl had expressly said “you guys fuck me with a pool cue and a lit cigarette, and I’ll pretend to be unconscious, because I want to be a porn star.” The guys were merely following her express instructions, according to the defense.
Could they prove this at all? Not in my opinion. But they found a medical man who was willing to say “there, her head just moved a bit, so she must not really be unconscious” (which is odd, since I’ve seen plenty of drunk-unconcsious people make spontanious movements), and they sold her to the jury as a slut by pointing out that she had shaved her pubic region and had had willing sex in the past.
I don’t think “she’s a slut” should be a legal defense against rape, is the bottom line for me. There is no logical way in which someone’s shaved pubes proves or disproves a charge of rape; there is no legitimate reason, in my view, for a court to allow such attacks on the alleged victim.
Also, stories like this one strongly discourage other rape victims from reporting rape to police. Shouldn’t our system be designed to help victims report, rather than help rapists get away with it?
I’m not saying accused rapists aren’t entitled to a defense; I’m saying they should be legally required to find a defense other than the “she’s a slut” defense.
I both agree with you and disagree with you about the penalty. The way our law system works, I think defense lawyers should do all they (legally) can to prevent even a 10-year sentence, so I don’t buy the “well, the defense lawyers only acted like sleazebags because they were facing a 55 year sentence” excuse. If you were a millionairre facing “only” ten years, wouldn’t you still hire a defense team that would do everything they legally could to keep you out of prison?
However, it’s certainly true that juries will feel the same way you do and be not inclined to give out “guilty” sentences if the penalty strikes them as outragiously long. Which made it a tactical error, in this case, for the prosecutor to pile on charges as he did. It’ll be interesting to see if the prosecutor changes that for the retrial.
That was cross-posted with Sheelzebub; it sounds like Sheelzebub knows more about the details of the defense in this case than I do, so where her account and mine disagree, “never mind.”
It is never OK to have sex with someone who’s unconscious, and if you’re old enough to do it, you’re old enough to know that. I am at a loss to explain how any extenuating circumstances would make such behavior acceptable.
If she was indeed passed out, which is what it sounds like, attacks on her character amount to saying, “Bad girls can’t be raped,” which is what pisses me off most about this case.
Part of the problem with this discussion is that not all “partial-birth” abortion bans are the same. Some of them are narrowly written to apply only to one procedure and only in the third trimester; those are the ones which have not been overturned by courts. And no, those are not especially dangerous, although I disagree with them in principle.
Then there’s the majority of “partial-birth” abortion (PBA) bans, which have been overturned by courts. Those are very broadly written and would apply to multiple procedures and to multiple stages of pregnancy. I think those are dangerious.
Don P, you seem to think that PBA bans such as the one currently at issue in the courts, as written, would effect only one kind of abortion if they were enforced. I think you’re mistaken about this. I could go over it in detail, if you like, but for now suffice to say that many courts have agreed with me on this; the PBA bans that have been overturned in court, including this most recent attempt by congress, were overturned in part because courts found that the laws are too broadly written and cover multiple types of abortion.
How dangerous are they? Well, as long as the Supreme Court doesn’t change its mind, PBA bans aren’t very dangerous, because the ones that overreach are unconstitutional and therefore unenforcable. (Therefore, what prosecutors have attempted to do with the broader PBA bans is irrelevant – prosecutors have never had a chance to abuse them, since they’ve always been stayed and then overturned).
However, the Court only reached that decision on a 5-4 vote. It’s certainly possible that, if Bush is re-elected, the Court’s line-up could change in a way that would make broadly-written PBA bans constitutional.
* * *
Regarding a third-trimester abortion ban, Don, you’re mistaken; it would be very easy for Republicans to pass a third-trimester abortion ban, if they wanted to (although it would have to include exceptions to protect the women’s life and health, to avoid being unconstitutional). The Democrats have proposed such a ban several times; it has been overwhelmingly supported by Democrats and voted down by the Republicans.
Republicans won’t allow a third-trimester abortion ban because they don’t want the issue taken off the table.
* * *
Joe, I don’t really care what the “American people” will or won’t support, when it comes to partial-birth abortion bans. For one thing, I beleive that a massive campaign of lying by pro-lifers (and an inadequate response by pro-choicers) has led many people to be misinformed on this issue. More importantly, though, I don’t think basic rights – including reproductive rights – are right or wrong based on what polls say.
Joe M:
But he originally said, “Of course, you don’t have a snowball’s-chance-in-hell of passing even a third-trimester ban, let alone something stricter than that.” The word “passing” doesn’t mean “defending it in court.” It means “passing” a bill by the legislature. And that did happen in several dozen cases.
No it hasn’t. There is no federal third-trimester ban, and you don’t have a snowball’s chance in hell of passing one. You had to sweat blood just to get a federal PBA ban, which, as I said, is unlikely to prevent even a single abortion anyway.
As for state third-trimester bans, they all include exceptions for the life and health of the pregnant woman, which as anti-abortionists correctly note is a loophole big enough to drive a truck through. Any abortion can be justified on health grounds, so the laws effectively allow for abortion on demand even during the third trimester. I know of no case, not even a single one, of an abortion provider being successfully prosecuted for performing an illegal third trimester abortion in violation of these exceptions.
Most or all of the state PBA bans have already been struck down, as a result of Stenberg v. Carhart.
A story on the front page of today’s Columbus (Ohio) Dispatch—
“Enforcing ban next hurdle in Ohio”
“With little fanfare, Ohio became the only state in the nation with a court-tested ban on ‘partial-birth’ abortions.”
I guess I don’t really have the factual basis to discuss the case intelligently. I hadn’t realized that they were using an actual consent defense.
It certainly seems to me, based on the article, that there was a rape. On the other hand, let us assume — for the sake of argument — that she had, in fact, actually consented. Let us assume that she said, “I will pretend to be unconscious while you pretend to rape me.” If I’m sitting on a jury, and the defendant tells me that’s what happened, I’d be thinking “That’s the lamest defense ever! Why in hell should I believe some crap story like that? Why would a woman EVER consent to what they did to her?” I’m ready to convict right now.
But what if you have evidence that she had done similar things before? That she was trying to break into the porn industry? That she was — in the vernacular — a slut? Doesn’t that make the Defendants’ story just a little bit more credible, or at least conceivable? Now, a juror might think “Oh, I guess if ANYONE would consent to something like this, it would be someone who has muliple and varied sexual experiences on a regular basis and wants to be a porn star.” The juror is not willing to acquit yet — she’d want to know, for example, why she is claiming rape if she had previously consented, and whether the Defendants’s story is credible even with what we know about the Plaintiff — but she’s at least willing to look at the two sides, and determine which one is more credible and which one is simply lying. (Obviously, one side here is simply lying.)
The disconnect that struck me in the article, thought, was that although the jury was hung, it was — in at least some counts — hung 11-1 to ACQUIT. That shows to me that the Defendants had proved pretty convincingly to the jury that the Plaintiff was lying — at least about some things. The juror interviewed said exactly that. It is difficult to know, as a juror, how to react when you are convinced that the plaintiff is lying about some of her claims. How can you credit any of them when you’re not sure which ones she is lying about?
Joe M:
So which is it? Dangerous threat to most abortions? Or proof that Americans wouldn’t do anything meaningful to restrict abortion?
Proof that Americans wouldn’t do anything meaningful to restrict abortion.
Actually, it’s the opposite of both: Partial-birth abortion bans were presented as a dangerous threat, but this was completely exaggerated
Yes, it was exaggerated. As I said, all special-interest groups exaggerate the threat their opponents present to their cause. That’s how they rally their troops and bring in donations.
No prosecutor anywhere even tried to enforce bans on partial-birth abortion, let alone other types of abortion.
Right. Your laws are useless. I’m glad you realize that.
and yet the laws passed anyway, indicating that the American people ARE willing to restrict abortion.
But, as you just correctly noted, the PBA bans don’t do anything meaningful to prevent abortions. They’re almost entirely symbolic.
Ampersand:
Regarding a third-trimester abortion ban, Don, you’re mistaken; it would be very easy for Republicans to pass a third-trimester abortion ban, if they wanted to (although it would have to include exceptions to protect the women’s life and health, to avoid being unconstitutional). The Democrats have proposed such a ban several times; it has been overwhelmingly supported by Democrats and voted down by the Republicans.
This claim is just factually incorrect. The Democrats have never overwhelmingly supported a federal third-trimester ban. Neither have the Republicans. That’s why Congress has never come even close to passing one in the 30 years since Roe v. Wade, despite the fact that both parties have controlled both chambers during that time.
And yes, any such ban would have to include the constitutionally-required exceptions for the life and health of the pregnant woman, which would effectively gut the ban anyway. The Supreme Court rulings since Roe have consistently upheld an extremely broad understanding of the health exception, making any abortion legal in any state at any time during pregnancy subject only to the willingness of a single physician to state that the abortion is necessary to protect the woman’s health. That is why there has never been, to my knowledge, even a single successful prosecution of an abortion provider since Roe for performing an illegal abortion in violation of such a ban (Abortion providers have been prosecuted for other kinds of medical malpractice involving abortion, but not for violating the health exception).
Amp —
If you don’t think polls are relevant, why did you begin the post with a reference to a spurious poll as to Republicans? To repeat, 73% of Republicans are pro-choice? No way. Maybe Democrats have that high a percentage, but not Republicans. Especially when about half of the general population says that they would limit abortions done merely for convenience’ sake. There’s no way those poll numbers are accurate.
I don’t think polls determine the issue. Far from it. I just get irritated when Don P. starts claiming that the American people all overwhelmingly support even late-term abortions, such that even a third-trimester ban would have a “snowball’s chance in hell” of passing. Just not true.
* * *
Nice to accuse pro-lifers of a “massive” campaign of lying. When have pro-choicers ever told the truth about anything? They have lied in so many ways over the years:
— Doe of Doe v. Bolton didn’t even want an abortion. Abortion advocates lied to her to trick her into signing an affidavit that they then used to press a case to the Supreme Court without her knowledge.
— Roe of Roe v. Wade wasn’t raped. She has said, “Abortion has been founded on lies and deception from the very beginning. All I did was lie about how I got pregnant. I was having an affair. It all started out as a little lie. I said what I needed to say. But, my little lie grew and grew and became more horrible with each telling. Sarah and Linda’s (the pro-abortion attorneys in Roe) eyes seemed blinded to my obvious inability to tell the same story twice. It was good for the cause. It read well in the newspapers. With the help of willing media the credibility of well-known columnists, the lie became known as the truth these past 25 years.”
— There weren’t 10,000 women dying from illegal abortion.
— Ron Fitzsimmons admitted to “lying through my teeth” about the number of partial-birth abortions done per year, as well as lying that they were done mostly for health reasons.
— Abortion advocates lied to Congress in claiming that fetuses are killed by anesthesia.
— Abortionists often sell fetal body parts under dubious circumstances.
— Abortion advocates constantly lie by claiming that “the right to legal abortion hangs by a razor-thin 5-4 margin in the U.S. Supreme Court,” or that “the appointment of even one more anti-choice justice could result in the reversal of Roe v. Wade.” Even Kerry’s campaign has tried to get some mileage from this unadulterated lie. Even a certain blogger has stated forthrightly that feminists are “lying” here.
— Here’s a NARAL ad that not only gets in the lie about a supposed 5-4 vote on the Supreme Court, but also gets in another lie by featuring a fake newspaper headlined, “ABORTION OUTLAWED: Supreme Court Overturns Right to Choose.” Anyone knows that even if the Supreme Court overturned Roe, abortion would not be “outlawed,” it would just be returned to the states, where most states would keep abortion legal (unfortunately, in my book).
Ampersand:
Don P, you seem to think that PBA bans such as the one currently at issue in the courts, as written, would effect only one kind of abortion if they were enforced. I think you’re mistaken about this. I could go over it in detail, if you like, but for now suffice to say that many courts have agreed with me on this; the PBA bans that have been overturned in court, including this most recent attempt by congress, were overturned in part because courts found that the laws are too broadly written and cover multiple types of abortion.
Yes, various state PBA bans have been struck down by the courts on the grounds that the statute is too broadly written and encroaches on constitutionally-protected abortions such as those necessary to protect a woman’s health. My point was that even narrowly-tailored laws that are written to ban only the “partial birth” procedure described by the laws’ proponents (intact dilation and extraction), and that included the constitutionally-required life and health exceptions, would be unlikely to prevent even a single abortion, because abortion providers would likely just substitute a different procedure for the intact D&X.
Joe M:
If you don’t think polls are relevant, why did you begin the post with a reference to a spurious poll as to Republicans? To repeat, 73% of Republicans are pro-choice? No way.
To repeat: It depends what you mean by “pro-choice.” See my earlier post. What definition are you using?
Maybe Democrats have that high a percentage, but not Republicans. Especially when about half of the general population says that they would limit abortions done merely for convenience’ sake.
See, that’s just one of those questions that is utterly meaningless. What does “for convenience sake” mean? Define “convenience.” Does it cover abortions done to protect a woman’s job or career? To protect her economic status? Her health? Her ability to take care of her dependents? Her relationship with her husband or boyfriend? The term is so vague and ambiguous that it is meaningless in this context, and different people will have very different ideas of what qualifies as “convenience.”
Furthermore, even if the term were clearly defined, and a majority of people expressed support for a ban on such “convenience” abortions, writing and enforcing a law that banned only those abortions and not others would be virtually impossible anyway. This is also why a ban on sex-selection abortions would be almost completely unenforceable. Any woman seeking a prohibited sex-selection abortion could obviously just lie and claim that she wants the abortion because the pregnancy threatens her marriage, her health, her family life, her career or whatever.
I don’t think polls determine the issue. Far from it. I just get irritated when Don P. starts claiming that the American people all overwhelmingly support even late-term abortions, such that even a third-trimester ban would have a “snowball’s chance in hell” of passing. Just not true.
I never said that the American people overwhelmingly support late-term abortions. I said that a federal ban on third-trimester abortions has virtually no chance of passing Congress, which is true.
in regards to the haidl rape trial, one of the other issues that seemed to be extremely relevant in the jury room was that the “expert” that the defense hired said that the alcohol/drugs had absolutely had no effect on impairing jane doe’s consciousness in any capacity and that she was totally faking it. the prosecution’s expert said that in fact drugs and alcohol would ABSOLUTELY have an impact on her ability to consent and that in his opinion there was no doubt that she was unconscious and it was likely due to said drugs and alcohol.
when the jury was conflicted about these two opposing expert opinions, the judge advised them that they had to disregard the prosecution’s expert testimony and side with the defendant’s as a matter of law. therefore, the “she was faking it” defense gains more credibility.
not only that, but there are several other issues in this case that i have problems with. there is a california law that is already in place that says one cannot give consent if they’re intoxicated but that didn’t apply in this case? and she was a minor at the time that she was drinking in the home of the deputy sheriff? not only that, SHE wasn’t the one who wanted to prosecute because she had no recollection of the events in question, it was the police who approched her and after prodding, she agreed to prosecute and testify. she would never have known about the event if the people who found the tape hadn’t submitted it to police, concerned that the woman in the video was actually a corpse.
if you’d like to read about the trial from day 1, there’s a special section in the OC WEEKLY here: http://www.ocweekly.com/index2.php (in the yellow box).
this is certainly going to lead to fewer victims of sexual assault to come forward and prosecute.
xoxo, jared
But what if you have evidence that she had done similar things before? That she was trying to break into the porn industry? That she was — in the vernacular — a slut? Doesn’t that make the Defendants’ story just a little bit more credible, or at least conceivable? Now, a juror might think “Oh, I guess if ANYONE would consent to something like this, it would be someone who has muliple and varied sexual experiences on a regular basis and wants to be a porn star.” The juror is not willing to acquit yet — she’d want to know, for example, why she is claiming rape if she had previously consented, and whether the Defendants’s story is credible even with what we know about the Plaintiff — but she’s at least willing to look at the two sides, and determine which one is more credible and which one is simply lying. (Obviously, one side here is simply lying.)
Her sexual history makes her more credible, IMO. She has no problems with being sexual. According to the defense, she wanted to be filmed having sex. Therefore, it would make no sense to me that she’d be lying about rape if it had happened. It’s not as if she had any shame over being sexual and the ensuing desire to cover it up with a false rape charge. If she wanted to break into the porn industry like the defense claimed, she’d have wanted to get the video for a portfolio or somesuch. I don’t see why someone who was so sexual and so free about supposedly wanting to be into porn would suddenly lie about being raped. In my mind, the defense’s story bolstered her charges.
Also, that logic treads close to: “Well, the accuser has had sex before and liked it, so she probably was just having sex this time around as well, no matter that she says it was rape.” Basically, having sex or being sexual would make it impossible to prosecute anyone for rape.
Not to ignore the whole abortion/rape thread.. but I was happy to see this blog is ranked among those that “don’t suck” by a third party!
Too bad the reviewer couldn’t run Amp’s cartoons about child centered marriage in his synopsis!
FWIW, years ago I used to drive some “independent contractors” to their “home visits.” One night, when I wasn’t driving, one of the women was raped by her “client.” It may be hard for many to believe, but a prostitute can be raped (and are more frequently than you’d think). The incredible thing was that she tried to report to the police who, of course, just laughed at her.
I am VERY sympathetic to these issues, but I have also followed the Bryant case very closely [caveat: I’m a MN Timberwolves fan and HATE Kobe Bryant]. All I can say is that if Kobe Bryant is convicted based on what I’ve read, I’m moving to Canada. This case is the lamest he said-she said scenario I’ve ever heard of, and the fact that the women showed up at the hospital with two different men’s semen on her underwear is a major blow to her credibility. As Merritt blogged, credibility is not about character.
I’m surprised that no one here is talking about the celebrity factor involved in this case. Years ago I worked on Ted Kennedy’s Iowa campaign and I was shocked by all the middle-aged women who tried to use me to gain access to Joe Kennedy, and they weren’t looking for autographs. In America, celebrities don’t ask to have sex, they just say yes (or no) when asked. And they get asked a lot.
This is probably just what it appears to be: an overweening publicity-hungry DA and sheriff going after the “boy” from LA. This case is about racism, not sexism.
Huh?
What, exactly does this have to do with the Bryant case? There’s a thread about the Bryant case in this blog, but you seem to have conflated the OC Rape case with Bryant’s case. The OC rape case involves a white son of a wealthy assistant sherriff. There was hardly any racism in this case, but there was plenty of misogyny. And the accused are *not* celebrities. They are spoiled teenaged hoodlums who have the best defense their daddies’ cash can buy.
Credibility may not be about charecter, but many people make it so. Read the comments on Merritt’s blog for more of that. If it was only about credibility, you’d see more comments along the lines of “The physical evidence is questionable, I can’t say if he did it, so he’s innocent IMO.” Instead, any woman who accuses someone of assault is a lying, crazy, scheming, golddigging slut who should be burned at the stake. And FYI, the defense for the OC RAPE CASE made this explicitly about the accuser’s charecter. She was a slut, therefore she couldn’t have been raped. She was a liar. She raped them.
Give me a goddam break.
Her sexual history makes her more credible, IMO. She has no problems with being sexual.
You see, I agree with you. There are multiple conclusions that can be drawn from the same facts, and yours is probably more likely.
But in rape cases like this, we are never talking about who is guilty and who is innocent (hell if I know — I wasn’t there). The issue is what evidence the jury will hear.
In my view as a good Liberal, it should be very HARD to convict anyone of a crime. The “beyond a reasonable doubt” standard means that some guilty people will go free, but I have made the value judgement that this is better than the risk of imprisoning the innocent.
I understand the fear of women not coming forward to prosecute. I understand the concern about perpetuating false stereotypes. I just feel that these concerns are SUBSTANTIALLY OUTWEIGHED by the risks of imprisoning an innocent person. So I think a person on trial for murder should have exteme lattitude in putting forward whatever half-cocked theory he and his attorneys can think up.
A person on trial for murder should be (and is) able to theorize that his victim “needed killin'”. A person on trial for carjacking should be able to testify that the victim “lent” him the car. And a person on trial for rape should be able to testify that she was “asking for it.” If you or I are on that jury, we’re probably going to ignore that testimony. But I don’t want to impose a rule that the defendant can’t make whatever hare-brained defense he can come up with.
Rape shield laws are predicated on the fact that rape is ‘different’. And for the victim it most certainly is. But for the person sitting at the defendant’s table faced with jail-time, it’s not any different at all, and it hardly seems fair to limit his testimony because of the specific crime he is charged with.
“A person on trial for murder should be (and is) able to theorize that his victim ‘needed killin’.”
Richard:
Just keep in mind, though, that any idiot dumb enough to say, Yes, I killed Bob (or Kenny), but it wasn’t murder because he needed killin’, will be laughed at, and summarily convicted, because that is the most ridiculous excuse in the entire world.
But many people seem to have a, um, mote in their eye where their vision of rape is concerned. Yes, I raped Jean, but it wasn’t rape because she was asking for it.
I have said a lot of things that, in my opinion, were asking to get me punched in the face. But the person hitting me in the face is still committing assault, because the question is not whether I was asking for it, but whether she had the right to do it, and the answer is, invariably, no.
I kind of get the impression from your post that we’re not really disagreeing on this, although I may be wrong. I think what I’m really getting at here is that while I think “there was implied consent” or “she didn’t say no” is a viable defense for rape, I don’t think “she asked for it” is a viable defense for rape (or for murder) because the appropriate response is, So?
I suspect, though, that I simply may be confusing your slang with mine. When I hear “she asked for it” I think, Oh, she was an uppity bitch that needed to be taken down a peg, which is of course abhorrent and not a viable defense; whereas you may well have meant, by “she asked for it,” that she really was literally asking for sex.
Clarification?
I meant “she was asking for it” in the literal sense of “Consent.”
The thing is, rape is different, and not just for the survivor. It’s different for the jury as well. People truly do still hold to the idea that a woman’s sexual past can negate rape.
I don’t know if you meant to imply that I must not take the presumption of innocence lightly because I question the validity of the slut defense–I’ll assume you didn’t. But since it could be read that way, let me make it clear–I do not take the presumption of innocence lightly. That does not mean I cannot and will not question the validity of common misogynist BS “defenses” of rape.
And while you may think that “asking for it” means consent, it is usually meant as “well, she was wearing a short skirt/was fooling around with me/was drunk therefore she had it coming.” Sort of like, “Well, he was asking to get mugged for walking around that neighborhood at that time of night.”
Oops, my mistake. I followed Merritt’s link here and didn’t realize the article linked to above was about two different cases. Merritt’s linking post only mentioned Bryant, a case I have followed closely. Didn’t mean to disrupt your thread. Hell, I had no plans to post but was upset by many of the comments thinking they were about the Bryant case.
The other case sounds much more difficult, and I’ll keep my nose out of that discussion.
On the one hand, I can certainly see wanting to restrict playing off of the jury’s unfounded prejudices, like white defendants in the 1960s in teh south getting acquitted of murder of blacks by all white juries.
On the other hand, I am reminded of the Jovanovic case a few years back where a man was convicted after the Rape Shield laws prevented him from submitting testimony (e-mails between the “couple”) of their interest in consential S&M.
For instance, the jury was not allowed to see this quote from a Rzucek e-mail:
“Yes, I’m what those happy pain fiends at the Vault call a ‘pushy bottom.’ ”
In a footnote, the court says, “The defense explains that the Vault is a club catering to sadomasochists, and a ‘pushy bottom’ is a submissive partner who pushes the dominant partner to inflict greater pain.”
When Judge Wetzel censored this and other pertinent e-mails, the appellate court points out, he “almost completely prevented Jovanovic from presenting the viable defense that the complainant had reason to fabricate the nonconsensual and violent elements of her story.”
Would the jurors have had reason to question the complainant’s credibility if they had seen the “pushy bottom” e-mail? Or this personal e-mail confession by Rzucek to Jovanovic—which Judge Wetzel also deleted—concerning her relationship with another man?
” . . . he was a sadomasochist and now I’m his slave and its [sic] painful, but the fun of telling my friends ‘hey I’m a sadomasochist’ more than outweighs the torment.”
There’s no doubt that Rzucek and Jovanovic engaged in a sadomasochist relationship during the 20 hours in question, but is the rest of her story of being subjected to violently nonconsensual brutality true?
Not being able to read the full range of her e-mails, the original jury could not judge the credibility of her testimony. Nor could she be cross-examined about the e-mails.
Then, in New Jersey, a man was convicted of rape in a standard he said/ she said case, where he said that there had been previous flirtatious behavior before consentual sex, and she said there had never been any flirtatious behavior and it was rape. The Rape Shield law prevented him from calling witnesses to testify that they had witnessed this previous flirtatious behavior that she had denied — previous flirtatious/sexual encounters were not admissible, even though the defendant was trying to use it show directly that the alleged victim was lying. The NJ Supreme Court reversed the conviction last year:
“Without the testimony of independent witnesses from the Cumberland County Prosecutor’s Office who were able to give examples of J.S.’s public shows of affection toward defendant, it was less likely the jury would believe that J.S. passionately kissed defendant and grabbed his buttocks, and that in turn made it less likely the jury would find believable defendant’s consent defense. Had J.S. contradicted Frost’s and Seay’s testimony describing J.S.’s physical advances toward defendant, as well as her sexually alluring remarks, the case would not have boiled down to a “he said-she said” dispute. The credibility determination between J.S. and defendant may well have hinged on the presentation of seemingly disinterested witnesses whose testimony had no partisan flavor, testimony that would have buttressed defendant’s assertions. Each piece of evidence delicately supported another in the presentation of the consent defense, and the removal of key pieces of evidence presaged the total collapse of that defense. Applying another metaphor, the jury was given a book with missing chapters.”
The problem is that in most cases, evidence has multiple interpretations. Evidence that the claimant is “slutty” “a big tease” “into S&M” may not be admissible evidence to show that she is a bad person, but it should always be admissible to show that she is a liar after she has affirmative says (or implies) “I am not slutty” “I am not a tease,” or “I am not into S&M”. If your defense does not let you show that your accuser is lying or misleading on the stand, then a defendant has nothing.
But you can’t let a jury only hear evidence for one purpose. Once they hear it, they hear it.
In my world, “implied consent” means that if, after a good date, when the woman invites me back to her apartment for a drink, I am justified in kissing her goodnight without being sued for assault. I am NOT justified in groping or raping or anything like that. That WOULD be assault.
Actually, no, you’re not justified. I think it’s always a bad idea to assume someone wants the same level of physical contact as you without asking. But, even if you didn’t ask for a kiss, if you leaned in to give her a kiss and she backed away, you would not, in any way whatsoever, be justified in forcing her to kiss you. If you lean in to kiss her and she leans in, too, and doesn’t try to stop you, then fine. But if she backs away or says no, then you would have absolutely no right or justification to kiss her anyway — regardless of how well you thought the date had gone up to that point.
Re: the “she was a slut” defense — the problem is that far too many people out there use that to dismiss the very real evidence of rape. It’s a sad, sad, pathetic world we live where this defense is even attempted, let alone bought. I don’t care if the woman had sex with 12 men in one night, if she said no to the 13th man, that is rape. No ifs, ands, or buts. And if she is unable to give consent, that’s rape, too.
ut they found a medical man who was willing to say “there, her head just moved a bit, so she must not really be unconscious” (which is odd, since I’ve seen plenty of drunk-unconcsious people make spontanious movements),
You know, even dead bodies move on their own from time to time. There’s a new defense for those accused of murder: “see, the arm twitched there, s/he wasn’t really dead at the time, so my client is not guilty of murder.” And do these people really think that a person can continue to pretend to be unconscious while being raped with a pool cue, a snapple bottle, a lit cigarette?!?! And pretend so well that people who view the tape later actually think that it’s a snuff film, and that the body that’s being raped is actually a corpse?!?!?!
In America, celebrities don’t ask to have sex, they just say yes (or no) when asked. And they get asked a lot.
Yeah, that’s true. But that doesn’t mean that celebrities aren’t or can’t be guilty of rape. Rape isn’t simply about “gettin’ some” — it’s about power and control, and issues of entitlement (which, certainly, celebrities tend to have a problem with).
There are issues of control involved on the victim’s part, too. And one fairly common way for a rape victim to attempt to gain some level of control (or rather, feeling of control) over what just happened to them is to have consensual sex — either with another man, or sometimes even with her rapist. The consensual sex after the fact does not, in any way whatsoever, mean that she wasn’t raped. The fact that the victim had semen from another man does not, in any way, prove that she wasn’t raped by Bryant (it doesn’t prove anything, either way, actually).
Richard, BOTH cases you cite are cases in which the conviction was overturned, because it was clear that rape shield laws had been misunderstood or misapplied by the judge. To quote that Village Voice article:
Don P wrote:
This claim is just factually incorrect. The Democrats have never overwhelmingly supported a federal third-trimester ban.
I overstated my case, but I think it’s still true that such a ban could have been passed if the Republicans weren’t against it. The Democrats have proposed a late-term ban like this one in the past five straight congresses, and the Republicans have always killed it in committee. There have also been amendments to PBA bans that would have done essentially the same thing, which the majority of Dems have voted for and the majority of Repulicans have voted against.
Also, remember what Gore said about late-term abortions during the Bush/Gore debates:
This represents, I believe, pretty much the mainstream view among Democratic Sentators. Certainly, Gore’s position was not objected to by any mainstream Democrat.
Ampersand:
I don’t understand the point of your Gore quote. Clinton himself said he would have signed, rather than vetoed, the PBA bans that Congress passed while he was President if those bans had included a health exception. And as I explain above, any such ban would be virtually useless, because a physician could either perform the PBA anyway under the health exception (if he deemed it to be safer than any alternative procedure), or substitute a different procedure instead.
I see no evidence that a third trimester ban, either with or without the constitutionally-required health exception, could have gained even a majority of votes from either party, let alone “overwhelming” support from the Democrats. As I said, both parties have controlled both chambers simultaneously in the thirty years since Roe, and neither has come anywhere close to passing such a ban. And the bills introduced by the Democratic leadership in response to the Republican PBA bills were essentially a political gambit to undermine the GOP’s rhetorical advantage on the issue. The Democrats had to send a signal saying, in effect, “Look, we don’t like PBAs/late-term abortions either.” But they never made any serious attempt to ban any kind of late-term abortion. And the same health exception loophole would exist for a third-trimester ban as for a PBA ban anyway. Many states already have third-trimester bans on the books, with the required health exception. There are over 10,000 third trimester abortions a year in America. Show me a single case of a physician being successfully prosecuted anywhere in the United States in the 31 years since Roe for performing an illegal third-trimester abortion in violation of a state law banning such abortions. To my knowledege, there has never been even one such prosecution, because all a physician needs to do to render any third trimester abortion legal in a state that bans them is to state that in his medical judgement the abortion is necessary to protect the woman’s health. The health exception required under Roe effectively permits abortion on demand for any reason at any time during pregnancy. The anti-abortionists are right about that.
After a short while I stopped reading TalkLeft because she was so biased in favor of defendants…and particularly against sexual assault victims. I didn’t think I could really believe anything she wrote or that there was much truth in her perspective.
Thanks to the folks above for your persistent efforts in making arguments in support of rape/sexual assault victims.
Your examples show that a couple of incompetant lower court judges have misunderstood the rape shield laws, creating an injustice until higher courts overturned the conviction. To me, that doesn’t suggest that rape shield laws are a problem; that suggests that incompetant judges are a problem. Surely you’re not suggesting that there are no examples of judges screwing up and creating an injustice apart from cases involving rape shield laws?
What I am saying, and perhaps this was unclear, was that the two cases I described are analytically indistinguishable from the case at issue. Also missing from my post above was the fact that — at the time these cases were decided — pro-rape-shield advocates were incensed that the court decisions essentially eviscerated core parts of the rape-shield law. They were right. Taking the cases I cited serious, the rape shield law has nearly NO scope.
Take Jovanovic:
In the Jovanovic case, the Defendant wanted to make the argument “Because the woman had a history of liking S&M, it is more likely that the violent sex we engaged in was consentual.” This evidence was admissible even though the woman did not prosecute any of those previous S&M episodes as rape.
In this case, the Defendant wants to state, “Because this woman wants to be in porn movies and do weird sex stuff, it is more likely that in this case she was agreeing to make a porn movie and do weird sex stuff.” This is admissible, even though she did not press charges for any other related activities.
The evidence to be admitted is nearly identical in the frame in which it can be admitted (and in the other frame for which it should be excluded).
Proponents of rape-shield laws press the argument that it is protecting against making the argument “She is a slut, therefore she is not a credible plaintiff,” or “she is a slut, therefore she must have been asking for it.” It is certainly the case that some jurors will hear the “slut” evidence discussed and immediately assume that the plaintiff is lying about the rape. That is unfortunate.
The point, though, is that evidence of previous sexual conduct is usually relevant for some OTHER reason. Evidence of a predilection for S&M is evidence that the woman in Jovanovich actually consented to consentual violent sex. Evidence of a desire to be in porn is some evidence of agreement to be videotaped having sex. [Note: not necessarily GREAT evidence or CONVINCING evidence, but certainly of SOME persuasive value.]
I’m happy to have a rape-shield law that merely prevents the attorney from saying “Slut = Bad.” But a rape shield law is a law of evidence, not a law of attorney argument. So does the evidence of prior sexual history come into the case? Does not evidence of prior sexual history help defendants make their case?
You wrote at TalkLeft “it’s simply not true that because someone sleeps around or shaves her private parts, she cannot be a victim of rape.” I agree 100%. But, the fact that someone shaves her private parts can be SOME evidence demonstrating that she was preparing to film a pornographic movie. The fact that she had previously had sex with multiple partners at the same time can make it more credible that at any specific occasion she consented to have sex with multiple partners.
A rape shield law says that certain evidence cannot be admitted for the PURPOSE of attacking the woman’s character. But that same evidence CAN be admitted for other reasons — such as permitting the Defendant to make his defense. With that understanding, the evidence limited by the rape-shield law becomes miniscule.
I have seen nothing in this case, so far, where the Defendants brought in evidence about the Plaintiff that was irrelevant to their defense. (The defense attorney looked like he went over the line in some of his statements and filings, but that is not a “Rape Shield” issue — as I said before, rape shields are evidentiary rules.)
The point of the cases I cited were, again, not that the judge’s went over the line, but that the line they went over was so very close to where the line would be if there was no rape-shield laws at all.
I’ve got to agree with bean about the statement Richard Bellamy made about shaven genitals.
Shaven genitals have nothing to do with porn in and of themselves. There are a myriad of reasons that a person might shave their pubes. For an operation, for esthetic reasons, for sexual reasons confined to themselves and their sexual partner(s), for medical reasons. Your statement makes it sound like anybody who has shaved their genitals is hoping to be in a porn film.
The second part of the statement also makes no sense to me. Because I have consented to have sex with my partner in the past makes it more likely that I consented to have sex with the person who raped me? Are virgins the only ones beyond suspicion then?
In criminal cases the prosecution can not bring in past crimes as evidence (unless the accused presents it first). I believe that the same should go for crime victims, thus my approval of rape-shield laws.
But, the fact that someone shaves her private parts can be SOME evidence demonstrating that she was preparing to film a pornographic movie.
Whil I wouldn’t recommend doing this for health reasons, I know women who shave their genitals all the time. And trust me, it has nothing to do with starring in a pornographic movie.
Jake: Are virgins the only ones beyond suspicion then?
Apparently so.
Look, I said that this is not the BEST evidence, but there is always multiple ways to interpret the evidence. The fact that there is an alternate explanation does not make the evidence inadmissible.
Regarding the Jovanivich case, Ampersand said “a couple of incompetant lower court judges have misunderstood the rape shield laws, creating an injustice until higher courts overturned the conviction.”
The ‘injustice’ in question was the inability to show an e-mail written by the woman, involving another relationship, ” . . . he was a sadomasochist and now I’m his slave and its [sic] painful, but the fun of telling my friends ‘hey I’m a sadomasochist’ more than outweighs the torment.”
How does being engaged in a previous sado-mosochistic relationship make it more likely that she consented to sex with the Jovanivic? The same way in which consenting to be filmed having sex before makes it more likely that she would consent to be filmed having sex this time.
I think you are confusing conclusive evidence with probative evidence. If it is common practice to shaving ones genitals before starring in a porn movie, then the fact that she shaved her genitals increases the likelihood that she was here.
Could she testify, “Of course I didn’t want to be filmed. If I had, I would have shaved my genitals that day.” Of course, so how it the opposite any different?
I think my point about evidence of past actions is still valid. If the prosecution isn’t able to bring up the defendant’s past as evidence, the defense should not be able to bring up evidence about the victim’s past. The reason that for this, in my mind, is that we are attempting to pass judgement on this single act – not the acts of a lifetime. If the defendant believes that his past provides a context for the jury that would result in acquittal then he is free to introduce that into evidence. Likewise, if the victim believes that his past provides a context for the jury that would result in conviction then he should be free to introduce that into evidence. In all other cases the past should not be allowed to be introduced into evidence.
Do you disagree with my belief? If so, why? It is possible that I’m wrong about rules of evidence WRT the defendant’s past.
Richard wrote: The ‘injustice’ in question was the inability to show an e-mail written by the woman, involving another relationship… How does being engaged in a previous sado-mosochistic relationship make it more likely that she consented to sex with the Jovanivic?
You forgot to mention the most essential point – that the email was written from the woman to the accused rapist. Taken as a whole, the emails conveyed the fact that the woman seemed to be iniatiating and seeking an S&M relationship with the accused. And that – not the previous relationship you’ve focused on – is why the emails were relevant, and should not have been excluded. As the higher court wrote, “the fact that the complainant made these statements is relevant to establish that she purposely conveyed to Jovanovic an interest in engaging in consensual sadomasochism with him.”
That’s very relevant to a defense of “she consented.” And to withhold that evidence is unjust.
Similarly, if (in the case we’re discussing) the alleged victim had EVER written an email to the accused saying “I’d really like it if I could pretend to be unconscious while you and your pals videotape yourselves shoving various objects into my body,” then I’d certainly regard it as fair game to bring into evidence, regardless of rape shield laws.
However, she didn’t write any such email. She allegedly said so verbally, and the accused were allowed to testify that she allegedly said so. That also strikes me as fair; that directly pertains to if she consented to the video or not.
What strikes me as illegitimate is to present evidence like “she shaved her private parts, therefore she must have agreed to be videotaped pretending to be unconscious while this group of men penetrated her with various objects.” That’s not fair, because that she shaves her private parts has nothing to do with if she agreed to do this video or not.
The only purpose of bringing it up is to imply to the jury that she’s a slut, therefore she must have agreed to be treated this way. But I don’t think implied (or probative, as you put it) evidence is valid applied in this way to this sort of question.
Here are the Rules of Evidence, as I understand them as they related to Rape Shield laws.
1. All relevant evidence is admissible. “Relevant” is defined broadly to mean “makes an point in contention more or less likely.”
2. Relevant evidence is not admissible to the extent that it is substantially outweighed by the possibility of prejudice. Therefore, even without a rape-shield law, some relevant evidence can be excluded if it is very prejudicial. I agree with this rule in a civil context. I do not agree with the rule in the criminal defense context. I think all criminal defendants should be able to admit all relevant evidence, no matter the possibility of prejudice. Nonetheless, this is the rule in both criminal in civil contexts.
3. Rape shield laws essentially flip the burden in #2. No prejudicial evidence about the victim’s previous sexual history is excluded, unless the prejudice is outweighed by its relevance to the defendant. Since I disagree with #2 in criminal contexts, I am going to of course disagree with #3. Putting aside present examples, think of what it does. It says, “There is evidence that is relevant to the defendant. This evidence is not seriously outweighed by the risk of prejudice. Nonetheless, we will not let the defendant bring it into evidence.”
Just the way the rule works — when it is working well — I cannot see how it could be properly applied in a way that would give a defendant a fair trial.
I should say also that, based on what I have seen and read, the boys in the case at hand are in my mind guilty as sin. I am glad that they are going to re-try to case. But the miscarriage of justice I blame entirely upon the jury not properly doing its job — not the defense attorneys doing theirs.
What strikes me as illegitimate is to present evidence like “she shaved her private parts, therefore she must have agreed to be videotaped pretending to be unconscious while this group of men penetrated her with various objects.” That’s not fair, because that she shaves her private parts has nothing to do with if she agreed to do this video or not.
I certainly wouldn’t buy it. But that’s different than whether it is relevant. So, since you are insisting on this point (and because it was called “seriously fucked up”), I do wonder about your answer to the question I posed above. What if a victim in another nearly-identical case wanted to take the stand and say, “Porn actresses generally shave their pubic area before staring in a porn movie. I did not shave my public area that day. Therefore, it is clear I was not intending to perform in the movie.”
Would you exclude that testimony in the trial? That seems to me to be very relevant evidence to demonstrate she did not intend to be in a porn movie. And, if you let the victim testify in one direction on relevance grounds, how can you exclude the defendant here from testifying in exactly the opposite manner to make exactly the opposite point?
Since I keep on bringing up the “shaved” thing as an example of something rape-shield laws should block, let me quote how the defense attorney talked about it to the jury:
Contrary to Richard’s interpretation, the defense did not bring up her being shaven to establish that she was preparing to appear in porn; they brought it up to suggest that she was “a sexual person!” (e.g., a slut).
What if a victim in another nearly-identical case wanted to take the stand and say, “Porn actresses generally shave their pubic area before staring in a porn movie. I did not shave my public area that day. Therefore, it is clear I was not intending to perform in the movie.”
Sigh… the rape shield laws don’t prevent rape victims from bringing up their own characteristics or pasts, if they want to. That makes perfect sense, since the (alleged) victim, unlike the defense, has no interest in improperly prejudicing the jury against the victim.
I think the prosecutor in your hypothetical example is an idiot, for letting her testify that way. But rape shield laws don’t and shouldn’t prevent the (alleged) victim from testifying about her own past.
However, the testimony in your hypothetical case is more relevant than the real-life case we’re discussing, because the witness has testified that she directly relates shaving her private parts to appearing in porn videos. That makes it relevant in your hypothetical case in a way that it’s not relevant in the real-world case.
(However, she’d be very foolish to do so, since rape shield laws don’t prevent the defense from bringing in evidence to directly discredit the (alleged) victim’s sworn testimony. So in the example you give, the victim would be opening the door to the defense trying to prove that she was in fact shaven that day, or that she has in fact appeared unshaven in porn in the past.)
And, if you let the victim testify in one direction on relevance grounds, how can you exclude the defendant here from testifying in exactly the opposite manner to make exactly the opposite point?
In the real-world case we’re discussing, it’s not relevant. To make it relevant, they’d have to establish that she had said at some point that she shaved specifically in order to prepare for porn videos, rather than shaving as part of her general grooming ritual, or any time she was prepared for the possibility of consensual sex. They did not, so far as I know, establish that or even attempt to establish that.
I suppose that in a hypothetical case in which it could be shown that an (alleged) victim did shave when she was intending to appear in a porn video, but did not generally shave in other circumstances, then in that case it would be relevant. But that’s not what went on in the real-world case we’re discussing.
Richard wrote: “There is evidence that is relevant to the defendant. This evidence is not seriously outweighed by the risk of prejudice. Nonetheless, we will not let the defendant bring it into evidence.”
No, that’s not what rape shield laws say at all. What they say is that all evidence regarding the (alleged) victim’s sexual past is, in practice, very prejudicial. Therefore, any such evidence must bear a strong relationship to the defendant’s case to outweigh the risk of prejudice.
The same way in which consenting to be filmed having sex before makes it more likely that she would consent to be filmed having sex this time.
Possibly, but it should never be assumed. Consent to do something one time does not imply consent on all future days. And, for another thing, consent to being filmed having sex (once or repeatedly) still does not, in any whatsoever, imply consent to be raped. Filming the rape does not change that.
If it is common practice to shaving ones genitals before starring in a porn movie, then the fact that she shaved her genitals increases the likelihood that she was here.
Just because it might be “common practice” for porn stars (professional or amatuer) to shave their genitals before starring in a porn movie, that does not mean that a woman who shaves her genitals is likely going to be in a porn movie. That’s just faulty logic. Hell, most people who are going to have brain surgery shave their head before surgery (that’s “common practice”), that doesn’t mean that someone who shaves their head is going in for brain surgery.
The quotation from the defense attorney does seem to go over the line to me, but I don’t see how it in any way implicates a “rape-shield” law, in either direction. “Rape shield laws” are rules of evidence — what evidence the defendant can bring in about the victim’s character. It does not relate to how lawyers address the jury (except to the extent that they can’t talk to the jury about evidence that was excluded.)
Sigh… the rape shield laws don’t prevent rape victims from bringing up their own characteristics or pasts, if they want to. That makes perfect sense, since the (alleged) victim, unlike the defense, has no interest in improperly prejudicing the jury against the victim.
But if it is relevant if the victim wishes to bring it up, it is equally relevant if the defendant does.
Consider three parallel cases:
A kills B. A is prosecuted and pleads self-defense — that B attacked him. But there were no witnesses. A wants to bring in evidence that B is generally a very violent person to support his position that B attacked him first. He can bring in that evidence. [Even though the victim’s violent disposition does not itself prove that he started to fight in question.]
A takes stuff from B. A is prosecuted for theft and pleads innocent. He claims that B gave him the stuff as a gift. A wants to bring in evidence that B is generally a very generous person who often gives large gifts to absolute strangers in order to support his contention that he received a gift. He can bring in that evidence.
A has sex with B. A is prosecuted for rape. He claim that B consented to have sex. He wants to bring in evidence that B is a very sexual person who often consents to sex in situations like the one that they were in in order to support his contention that B consented to sex. Under a rape-shield law, he may NOT bring that testimony in.
Bean’s comment above that certain types of evidence make conclusions somewhat more likely, but should not be assumed, is exactly right. Rules of Evidence are not rules of judgment. Evidence should be admitted in a criminal trial if it is at all relevant. It does not make sense to me that the three examples I gave above do not all come out the same way. Now, maybe they should all come out consistent with the rape-shield law because none of the claims are relevant or dispositive. My view, though, is that they all be permitted, for the same reason — that they make the subject at issue somewhat more or less likely.
I feel as though the main argument in favor of rape-shield laws are that juries can be biased against sexually active women. That is certainly possible in many cases. But it strikes me more as an argument against the concept of the jury than in favor of any particular exclusionary rule. Juries are probably often biased against black male defendants. Should a “race-shield law” all defendants to testify behind a wall through a voice modulator so that a mostly-white jury won’t be able to see their race? If A slips and falls in Walmart, should Walmart be able to hide behind a “corporate shield law” to keep the jury from learning that the defendant is a big corporation with lots of money, which will make them more likely to give a big payoff?
I feel like the commenters are putting too much weight on “unfair prejudice against the victim.” Juries always come with biases. It is the prosecutors job to say, “Here’s a bias you might have. Look past it to the facts of the situation. ” Even the over-the-top statement by the defense attorney you quoted — it’s possible some jurors would believe that anyway (after all, they could likely tell the status of her pubic hair from the video). Will they be considering it in their deliberations? Likely some would. Are the 12 jurors sitting there thinking, “Gee, I never thought of it that way, she likely IS a sexual person.” No, they had the bias — if at all — before the attorneys started making their statements.
My view is to put everything out there, and trust the jury to decide. I certainly understand the contrary position, but if it is taken, it should be across the board, not just in rape cases.
BTW, did you know that laws similar to the rape-shield law work the other way, too? Generally, if a person is arrested for assault (or theft or murder or embezzlement) for the second time, the fact of their first conviction is not admissible. But if a person is conviction of sexual assault or child molestation, that fact IS admissible in any subequent prosecution for sexual assault or molestation? Talk about unfair prejudice, do you think any jury will take a defendants defense seriously at once they hear that he has already been in jail for raping someone else? I sure don’t.
But you know what? I completely agree that the evidence should be admissible. Because I think it IS more likely that a convicted rapist in fact raped this time. Which is why a disagree that previous convictions for regular assault shouldn’t be admitted. And, comparably, why I think rape-shield laws are misguided and unfair to the defendant.
BTW, did you know that laws similar to the rape-shield law work the other way, too? Generally, if a person is arrested for assault (or theft or murder or embezzlement) for the second time, the fact of their first conviction is not admissible. But if a person is conviction of sexual assault or child molestation, that fact IS admissible in any subequent prosecution for sexual assault or molestation? Talk about unfair prejudice, do you think any jury will take a defendants defense seriously at once they hear that he has already been in jail for raping someone else? I sure don’t.
Actually, that’s not true at all. Prior convictions cannot be brought up in any of those cases (including sexual assault or molestation) unless A) the defendant takes the stand and B) it can be shown to be a pattern relevant to the current case (and that is also true in murder, assault, theft, embezzlement, too). I’ve had my fair share of frustration in trying to prosecute a rapist or batterer knowing full well that they have a history of these things and knowing that the jury will never know it.
Bean,
Please pardon my lack of citation. Perhaps you are unfamiliar with the Federal Rules of Evidence. I do not know. My knowledge is based upon the Federal Rules, specifically on Federal Rules of Evidence 413 and 414. These rules are NOT limited to cross-examining a witness who took the stand to demonstrate a pattern. They are permitted in ANY situation (prosecutor’s case or in rebuttal) for ANY relevant reason. Further, they are taken out of the realm of the extreme prejudice exception.
If your experience is that these Rules are being misapplied, I’d be happy to hear it. Or perhaps you just work primarily in a jurisdiction that whose rules deviate greatly from the Federal Rules.
Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
Rule 414. Evidence of Similar Crimes in Child Molestation Cases
(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
Actually, the same applies to other crimes:
Federal Rules of Evidence number 404
Other crimes, wrongs, or acts
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
This is similar to the rules you cited. Included in the rules of evidence for sex offenses cases is the following:
In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
(Bolded text mine.)
In all cases where the prosectution wants to include previous crimes, the reasonable notice is required. In addition, such evidence is often ruled irrelevant or prejudicial and not allowed.
The difference being, of course, that prior commission of a sexual assault or child molestation can be used to prove bad character “in order to show action in conformity therewith”, and commission of other crimes cannot. Also, except in extreme cases, this rule will trump the “prejudice” exception, while conviction of other crimes often will not.
Under the Federal Rules, a prosecutor can say, as soon as the trial begins, “He raped before, therefore he is a bad person prone to raping, therefore he is more likely to have raped now.” That is what the Rules are there to allow.
Like I said above, I approve of this rule. I think rapists are more likely to rape again, and that child molesters are more likely to molest again, and that evidence that a man is a convicted rapist or molester is relevant and should be considered by the jury.
I am surprised that there has been so much effort put forth to show that rape-shield laws and rapist-conviction laws are no different from the law in other situations. If they weren’t, they wouldn’t need a whole new law!
Rape shield laws make it HARDER to get in testimony about victim character in rape cases than in other types of cases where victim character is arguably a factor. The laws I quoted above make it EASIER to get in testimony about a previous rape conviction than about any other conviction. That is why the laws are there!
I think it is fair to argue that it is correct/appropriate that the laws be different for sexual assault than in all other cases — although I disagree. What seems patently incorrect (to me, at least) is the argument that the laws actually aren’t any different!
Hey, if you want to introduce past sexual crimes as evidence of bad character on the part of the victim, fine. Or past crimes of any sort on the part of the victim for that matter. However, past hearsay of the victim’s sexual proclivities seem out of bounds to me. Just as we are not allowed to say that the accused has been acquitted of rape on X occasions in the past.
Exactly, Jake.
Four women (I think) claimed William Smith of the Kennedy family either tried or succeeded in raping them, and the MO was the same as the alleged attack on the woman who finally pressed charges. However, it was not allowed as evidence–they were unproven accusations at best. Rumors/unproven accusations about the accuser, however, are often bandied about. She’s “bad news,” everyone “knows” she’s a slut, her ex boyfriend who’s pissed off at her for breaking up with him sees a way to get back at her, her high school rivals see a way to take her down a peg, everyone knows that she’s a lying whore, but no one can say exactly how they know. Except that they just know, or that they’ve “heard” it. The way we heard about Life Cereal’s Mikey and the Pop Rocks.
Also, I find this idea that rape is easy to prosecute rather silly. Rape is one of the most difficult crimes to prosecute; the rates of conviction are very low. This can be due to lack of compelling evidence, shame and fear on the part of the survivor (who either doesn’t accept what happened as rape at first, or is afraid of being harrassed, dragged through the mud, and having her private medical records open for perusal by the defense), and some very ignorant ideas about women. Such as, women who shave their bikini line or get a bikini wax must have consented to what happened. They aren’t perhaps going to the beach and wearing a bathing suit that requires such grooming (and many bathing suits require some interesting shaves). Being “a sexual person” becomes grounds for reasonable doubt.
Rumors/unproven accusations about the accuser, however, are often bandied about.
As evidence?
Under the Federal Rules, a prosecutor can say, as soon as the trial begins, “He raped before, therefore he is a bad person prone to raping, therefore he is more likely to have raped now.
Which FRE is this?
Rape-shield laws exclude particular types of evidence (the “she’s a slut” sort) because they are held to be more prejudicial than probative. You can introduce evidence that the accuser had consensual sex with the defendant previously, or that the injuries came from sex with a different partner.
Under the Federal Rules, a prosecutor can say, as soon as the trial begins, “He raped before, therefore he is a bad person prone to raping, therefore he is more likely to have raped now.
Which FRE is this?
That is FRE 413, quoted above.
Here is an example:
“When his blood sample provided a DNA match, however, defendant admitted having sex with A, but argued it was consensual.
The government sought the court’s permission to introduce testimony from witness B that defendant had raped her approximately two years earlier. Consistent with its reading of congressional intent in adopting Rule 413, the government sought admission of B’s testimony to show defendant’s propensity to rape.”
There are some other procedural safeguards in this case, but the relevant factor is that for no non-sexual crimes can evidence of committing a prior crime (especially, as here, where the prior rape was never tried in court), can this evidence be admitted to show a propensity to commit this sort of crime. It is specifically PROPENSITY evidence that is allowed only in sexual assault cases and nowhere else.
The case cites some statutory history:
” Similarly, sexual assault cases, where adults are the victims, often turn on difficult credibility determinations. Alleged consent by the victim is rarely an issue in prosecutions for other violent crimes–the accused mugger does not claim that the victim freely handed over his wallet as a gift–but the defendant in a rape case often contends that the victim engaged in consensual sex and then falsely accused him. Knowledge that the defendant has committed rapes on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.”
Now, as I said above, I am not objecting to this. I definitely think this evidence should be admissible. I am just trying to demonstrate that the law is DIFFERENT in sexual assault cases (on both sides) than it is in non-sexual assault cases — which others seem to be denying. I think this evidence should be admissible for all crimes, and not, as is specifically demonstated here, only is sexual assault/ child molestation cases. The evidence that limit is wrongheaded is in the fact that it is already extended to child-molestation, where consent is NOT a good defense.
Isn’t it the case, though, that propensity evidence would only be admitted when consent (rather than, say, identification) is at issue? Presumably if a car thief claimed the car was given to him to borrow, a propensity for stealing (common plan, motive, etc.) would be admissible to show that in fact the behavior was theft rather than borrowing.
Consent isn’t a defense in child molestation at all, generally.
Let’s try this one, which involves child molestation in the 2nd Circuit.
The sponsors of the legislative amendment that introduced Rule 414 noted that, in contrast to Rule 404(b), Rule 414 permits evidence of other instances of child molestation as proof of, inter alia , a “propensity” of the defendant to commit child molestation offenses but that [i]n other respects, the general standards of the rules of evidence will continue to apply,” (bold added)
Doesn’t get much clearer than that.
From the same case:
“The Judicial Conference of the United States opposed enactment of Rule 414 on the grounds, inter alia , that, as it reads, the Rule could be interpreted as requiring the automatic admission of uncharged acts of sexual misconduct without consideration of such concerns as a defendant’s Sixth Amendment right of confrontation, and without any Rule 403 balancing to exclude evidence that is both unreliable and highly prejudicial.”
“The legislative history of Rule 414 reveals that Congress meant its temporal scope to be broad, allowing the court to admit evidence of Rule 414 acts that occurred more than 20 years before trial: No time limit is imposed on the uncharged offenses for which evidence may be admitted; as a practical matter, evidence of other sex offenses by the defendant is often probative and properly admitted, notwithstanding substantial lapses of time in relation to the charged offense or offenses.”
Try also, this one, which doesn’t specifically state that it is being admitted for propensity, but based upon all the facts, there is no other possible reason for it to be admitted.
In the Eagle case, in the trial of a man for molestation of an 8 year girl, the jury was allowed to hear about his previous conviction for “carnal knowledge” of a 14 year old girl. Two unaddressed issues is that, in general, it is a different “propensity” that causes men to molest post-pubescent girls as pre-pubescent girls. In the 14 year old was post-pubescent at the time of the carnal knowledge, it would still be statutory rape and immoral (of course), but it wouldn’t be probative at all of whether the defendant was likely to molest an 8 year old. Also, the 14 year old girl in case one was his wife during trial #2.
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