elisheva

More here: Rape Crisis Scotland - News

And here: Feministing

Rape is one of the most horrifying things I can imagine. There's no reason to torture a rape victim (whether male or female, but this article seems to deal only with women) by interrogating and humiliating them. As if having had sex in your life means it's your own fault if you get raped.

Indian Summer

I don't know. I'm torn on this. I'm not totally comfortable with the idea of humiliating a rape victim, but at the same time, a defendant is entitled to every defense possible. If the defense is trying to imply that the sex was consensual, then I can see why the victim's past sexual history would be called into question (ie. if she's had one night stands, ever accused someone of sexual harassment, how many partners, etc.) Victims are almost always made uncomfortable on the stand, and it's the prosecutor's job to prepare them for that as well as possible.

elisheva

Wow. I pretty much completely disagree with you there. First of all, defendants AREN'T entitled to "every defense possible," as far as I'm aware - some defenses aren't recognized as valid by the court, for example. And having had consensual sex in the past in no way implies that all sex in the future is probably consensual too. How many partners and one night stands only gives the defense a chance to try to portray the victim as a whore or a promiscuous girl. And if she's a whore, hey, it doesn't matter if she was raped! She was probably asking for it somehow! Or she provoked it with lewd clothing and behaviour. I know that's not what you're suggesting the sexual history should be used for...but in practice, that's what it IS used for.

And it's not about plain "discomfort on the stand" - it's about real emotional torture, to the point where one girl apparently killed herself after a humiliating interrogation about her sexual history. That;'s an extreme case, but too many cases of rape and sexual harassment or abuse go unpunished because the victim is afraid to come forward, afraid of how she'll be treated, just wants to forget about it and not have to relive the ordeal or go through any more pain related to it. Allowing sexual history of the victim to be used as evidence in rape trials makes that even worse, and it creates a system where the victim is the one being put on trial, having to prove she didn't cause her own rape.

The ONLY related issue I could see being relevant is if the victim has a history of making accusations of sexual harassment or rape.

Indian Summer

I should clarify that I meant all defenses valid by court. Needless to say, I'm not saying they should be able to totally make something up and run with it that has no precedent. But it is a common legal strategy to try to claim rape was consensual sex the victim woke up regretting.

You and I know that, but it doesn't change the fact that if the defense is going to try to claim that the victim and the defendant had consensual sex, both of their sexual pasts will be entered into evidence. This is hardly something unique to Scotland.

That's not what I (or the defense) would be trying to say. It's a very valid defense practice to try to ruin a witness' credibility, and an issue with rape trials is that the victim often doubles as a witness by their very testimony. It's not meant to be comfortable, but it's reality.

And it's not for you or I to judge, really. We can have our own beliefs, but if the defense attorney claims that the alleged victim came on to the defendant, that she changed into a negligee, whatever... it is relevant to the case.

That seems to be the exception rather than the norm. Unfortunately, in the world we live in, the victim should almost expect to have their credibility torn apart on the stand. I don't know about Scotland, but in the United States the accused has a right to confront the accuser.

And that's sad, but it's not what we're talking about in this case. There's an application process so there's clearly some standards the defense is supposed to respect when introducing the alleged victim's sexual history. As you said yourself, the previous example is an extreme case- it isn't the norm.

I think the biggest issue I'm seeing with your post is that you're calling the plaintiff the victim right from the start. I support the notion of innocent until proven guilty. Until the verdict comes down, it's an alleged victim. If the defense wants to try to claim the alleged victim and the defendant engaged in consensual sex, and for whatever reason the alleged victim's feelings about it changed later (whether it be from regret or underhanded motives- like a financial settlement), it's the defense's prerogative as it's allowed by law.

That's putting one hell of a handicap on the defense, though. What you're saying is basically that regardless of the circumstances, the defense can't make a case for consensual sex. If the defense is only allowed to reference the incident in question, it becomes he said-she said, and as your whole post demonstrates, there's a predisposition to sympathize with an alleged victim and believe their word over the defendant's. Whether or not it's a comfortable subject to be discussed, their sexual past does come into play- if this is an alleged victim who picks up a guy at a bar every Friday night for a one night stand, that's an important fact if the alleged rape occurred after being in that bar on a Friday night. At the very least, it gives reasonable doubt that the original intentions were rape.

sunnykerr

In Canada, rape victims (or, I should say, when there's a trial for rape, the presumed victims) can be questioned about their sexual past, too, but only insofar as it directly relates to the case at hand. And (or so my law professor told us in class) there's a stringent standard as to what qualifies as "directly relates to the case at hand."

And, I gotta say, I agree with that. Because, absolutely, it is completely abhorant that a victim should be further victimized by the very legal system that purports to protect her. (Or him)

However, however much abhorant it is to think so, not every case out there is clear-cut. Not every person is a good person.

So, so long as the standard upon which the questioning of the victim is based remains stringent and measured... I do think that there are instances where an absolute refusal to question the circumstances or the history of the person could prove to be a greater disservice to justice.

Indian Summer

Right... I'm not claiming that a forty year old should have to testify about one night back in 1983 that she got drunk and had sex if that's not the norm for her. But there is a place in a trial for the normal sexual activity of a victim- if this is a girl who goes out once a week looking for a one night stand, that should be mentioned, because it goes toward the state of mind at both parties at the beginning of the encounter.

Exactly. We want to believe a victim's telling the truth 100% of the time, but it isn't the case. There are cases where the victim's lying, whether it's to get money from the defendant or just to sully someone's name. It's not the norm, but it does happen, and we'd be remiss to pretend it didn't.

I agree with you totally. The idea that something as important to a rape case as the victim's normal pattern of sexual behavior couldn't be considered in the trial worries me a great deal. What's next? I dread the day that past patterns of behavior are thrown out of the court system because they do give a look into the alleged victim's mind and sometimes motivation.

sunnykerr

The thing I want to make very clear, though, is that this is a very sensitive issue. I don't believe that the accuser's sexual history should automatically be off limits, but it wasn't that long ago where it was an open book and trials were literally free for alls in terms of questioning the accuser.

We need to be so very careful and sensitive in these matters, because we already know that a lot of sexual abuse doesn't get reported because the victims are ashamed, afraid or perhaps even plain ignorant of their own rights.

I tend to shy away from absolutes. I don't think they serve anyone. So I don't think there should be a law that says that the sexual past of every and all accusers is off limits. However, we also have to remember that this is a horrendous crime and victims of it shouldn't be re-victimized just because they had the courage to come forward.

Indian Summer

Oh, I agree totally with that, which is why I think having an application process in place to question an alleged victim's sexual history is a good idea, since it doesn't allow for a free for all. It doesn't seem like it's working particularly well there, but I do think it's a good sign that such a measure is in place.

That said, I don't think an alleged victim must be "re-victimized" when being questioned, or always is. There's no reason to be ashamed of your sexual history in most cases, and it's the prosecutor's job to prepare the alleged victim as well as possible. I think the easiest solution to this would be limiting the kinds of leading statements that a defense attorney could make. For instance, he/she could ask the alleged victim how many one night stands they have had, but not take it a step further by alleging this makes him/her promiscuous. Kind of let the jury interpret the facts for themselves.

sunnykerr

I agree that there is no reason to be ashamed of one's sexual past when one's been raped... but, having never suffered that horrendous crime myself, I can't say that I know how I would feel being even asked about it... I can imagine, though, that I would feel really sensitive about it.

People who are victimized, regardless of the form the victimization takes place, often feel at least on some level that something they did brought this treatment upon them. Obviously, I think that's wrong, but people aren't rational and, especially when they've been victims of a crime, you can't expect them to comparmentalize too well.

So, all I'm saying is that, even though I know and fully believe that a victim's sexual history is nothing to be ashamed of, I still think it's a sensitive subject given the context of this interrogation. And, if we expect them to bear witness to their own violation, we have to make sure that they'll be as protected as it is logical to expect them to be.

TheAngel

The problem there is that if you have a conservative jury, it's possible for them to see the victim of a crime, especially a sexual crime such as rape, as someone that "asked" for it. Or was a tease and led on the other partner involved. The thing is, this sexual encounter is different than all others because she said "no" so if she's had sex with a thousand different men it doesn't matter because this time she said "no" and he didn't stop. It's this case, this coupling between the two, that is on trial, not the sexual histories of either people.

Indian Summer

Once again, though, that's the prosecutor's job during jury selection to weed out such jurors. Constructing a jury isn't about taking the first people who walk into the room, lol.

sunnykerr

I agree. We shouldn't take the responsibility off the prosecutor's back to do his or
her job during jury selection even in sensitive cases.

Not to mention that it's also the judge's job to indicate quite clearly that "she brought it on herself" is never, ever, an acceptable response to rape. If the judge needs to overturn the jury's decision to do that, then he or she can also do that. It is well within their right and their job description to do so.

TheAngel

But, if you ask a majority of people, would you consider yourself sexually conservative, would you consider yourself sexist, would you consider yourself ______? Then they are going to answer that question very subjectively. We all see ourselves in a certain light but say a woman doesn't consider herself sexually conservative, she's had a couple of partners but has always been in committed relationships at the time,etc. Then when she listens to the victim's testimony it is revealed that the victim has had over a dozen one-night stands in the last six months, that she has not been in a committed relationship for several years, and that she works as a bartender for a local college bar. The rapist says that she was asking for it, she wore a tight t-shirt and short shorts and that she was flirting with him and that in the heat of the moment he didn't hear her say no or feel her fighting because she thought she liked it like that. Suddenly that woman that didn't see herself as sexually conservative might see the victim in a different light, like perhaps she was looking for a sexual encounter and changed her mind, or that it wasn't totally the rapists fault, that he was led on. But, what did the fact that the victim had had one night stands in the past have anything to do with her being raped in the present?

GrhmLz

Actually, consent between both parties is about the only legal defense there is to use in criminal, sexual assault cases. What other claim can a defendant make except that there was no sexual contact at all? However, most defense attorneys will not go with that strategy unless it's true. Especially, if there is sufficient DNA evidence to back up that some form of sexual activity occurred!

However, cases involving violent crime are different from cases that involve white collar crime because we are dealing with harmful, offensive, physical contact against someone's will. That is how assault is defined by the law, therefore; we should expect that debate will arise between a victim's rights vs. defendant's rights.

Actually, I live in the U.S. and disagree.

Normally, it's the victim's sexual history that is allowed into Discovery for the defense. The defendant is protected in criminal procedure (not civil) because it's the state's job to supply the burden of proof.

It wasn't until very recently, through the political pull of victim's rights activist groups, that rape victims were even acknowledged that way by the State ... as the victim!

You see, crime was considered a grievance against the State not against the afflicted party. The rape victim was merely considered a witness for the state, in order for them to help prove their case. However, that has started to change.

True. It is!

However, I think there is a difference between attacking someone's credibility vs. someone's character. When someone's credibility is attacked, the goal is to establish a pattern of inconsistencies (lying). Character assault is different because now we are entering shady territory which deals with the question of morality and values when it comes to sex.

Actually, it's the Judge that presides over the court in criminal matters and He/She decides what is relevant. Either party can object but the judge oversees the rules of law and determines what may or may not be admitted into evidence.

Therefore, I disagree. This isn't about "personal beliefs." We are debating the same points lawyers do on a daily basis. My law professor once said that law is a mixture of science and art. The science lies in the fact that we have a set code of laws and procedures to abide by but the fine art of drafting a persuassive arguement/interpretation of the law before the court is just as important. It can make or break a case!

Well, actually, it may never even get to that point if there is enough evidence to suggest a conviction will be eminent. Before it even reaches the trial phase, there is the pre-trial stage in which the district attorney (prosecutor) may offer a plea-bargain to the defendant. There may be an offer of lighter charges and a reduced sentence in exchange for a guilty plea. Many times, a defense attorney will advise their client to take it if they believe there is enough evidence for a conviction. Most cases end here with the exception of some that do make it all the way to trial!

Well, innocent until proven guilty is a debatable standard to me. Innocent people can be proven guilty (it's happened, DNA evidence has recently exonerated people sentenced to Death Row) just like Guilty parties can be proven NOT GUILTY! Which brings me to the following:

The standard in criminal court is Beyond a reasonable doubt BUT many people are deceived by the true meaning behind a verdict. My law professor taught me that the court is not proving a defendant's innocence with a GUILTY or NOT GUILTY verdict. When a NOT GUILTY verdict is passed down, all the court has determined is that there wasn't enough evidence to convict the defendant on the charges. They are not saying the defendant is innocent; therefore, people who have committed crime can be found not guilty due to a lack of evidence meeting the beyond a reasonable doubt standard of proof.

While the scenerio you are presenting is a possibilty, I find it to be slim at best and I'll explain my reasons.

First, the District Attorney that handles the case is responsible for making a decision whether or not to pursue the charges. Usually if the DA feels there is not enough reliable evidence to bring about a conviction, he/she will drop the charges. However, that does not mean there are no slip ups in the system because there are some over-zealous prosecutors (example: the Duke case). But, I also believe that is in the minority as well!

Secondly, a rape victim that has acquired medical treatment shortly after the alleged incident isn't likely to be someone that thought about it and changed her mind. There are ways to obtain physical evidence to indicate whether forced intercourse or consensual intercourse took place!

Thirdly, the stigma attached to rape victims and the cross-examination process by the defense is highly widespread/acknowledged. I'm a woman that has never been sexually assaulted, thank god, and I even know this stigma exists. Unless there is some evidence that can be presented to the court that indicates an alleged victim has a history of perpetuating financial fraud, I have a hard time believing the motive would be financial gain. Why? Because you don't have to pursue criminal charges to obtain financial restitution. Why would a woman subject herself to the strain of a criminal trial when she could go straight to civil court to obtain money? Afterall, both courts have different burdens of proof and different damage awards. Criminial Court takes away a defendant's freedom through imprisonment while Civil Court awards money damages. It would be easier for a woman to go to civil court where the burden of proof is lighter ... a preponderance of the evidence. The court only has to believe it could have happened to award money damages to the plaintiff and it doesn't matter if the defendant was found not guilty in a criminal court.

Sorry, but for me, I'd have a hard time buying financial gain as a defense unless the defense attorney provided some serious evidence to the contrary. Suggesting/implying it is not enough. Regret? That's a possible motive I might buy a little bit more but I would still need to see evidence to establish a pattern where an alleged victim frequently seeks retribution. But, once again, suggestion/implication not enough.

I strongly disagree. Here's why:

I think what the counter-argument being made here is that gender stereotypes accompany the admittance of a rape victim's sexual history. The fact is that women account for the majority of sexual assault cases, not men! And like Elisheva pointed out, unless there is evidence from the past to suggest that the rape victim is a habitual liar or she has a history of making false allegations, how is sexual history relevant? Afterall, the point of the defense claiming "Consent" is to prove she lied! The fact that a woman may have had one-night stands, multiple partners, or changed her mind (whether or not I may personally agree with it) does not prove she lies. All that proves is that she has sex or doesn't have sex... just like men do!

See, divulging a woman's sexual history is a gender-biased tactic by the defense to imply that women who sleep around like men have bad character; therefore, she isn't credible! It's a deceptive ploy that juries can buy into, depending upon their own personal values or biases. Therefore, it's possible to have all the right physical evidence to prove a rape occurred, but a potential rapist can be set free by the personal bias that sexual history invites into the court room.

Plus, here's another problem with divulging sexual history. How do you prove it's the truth? Because there is no concrete evidence to prove a woman sleeps around unless you have witnesses come forward to testify! Then, the defense is using heresay. Who's to say a particular witness is telling the truth when people are known to slander other people's character all the time? There are bad break-ups, poor family relationships, etc... that can lead to potential perjury by a potential witness attacking the alleged victim's character! And a potential rapist is never going to admit to it... of course if there's a scenerio in which a woman went to a bar and got raped by someone she met that night... the man's going to claim it was a one-night stand! What else would he say when he doesn't want to face the consequences?