The Kobe Bryant case, if nothing else, has spotlighted the various legal issues surrounding rape cases. I took issue in an earlier thread with the fact that alleged sex-crime victims’ names are normally not made public, while alleged sex-crime offenders’ names are.
Another issue: rape shield laws. In essence, this says that the sexual activity of an alleged victim is presumed to be irrelevant. To present that information to a jury, defense attorneys have to prove to a judge it is relevant. However, the sexual activity of the alleged offender is generally considered relevant, and prosecutors will find it far easier to introduce evidence relating to prior sexual activity of the alleged offender than the defense will in introducing evidence relating to prior sexual activity of the alleged victim.
It seems that the general perception is that defenders will try to paint the alleged victim of a promiscuous slut, and that jurors will be thus persuaded to believe that the victim ‘was asking for it/deserved it’.
Quite frankly, I think that’s a crock of shit. There simply isn’t a lawyer in the land that would try to convince jurors that ‘the victim was asking for it’. Nor do I believe that anyone believing stuff like that would actually make it on the juror panel. But people are scared of the very perception, thus these laws. I don’t think any sane person likely to end up on a juror panel believes that promiscuity either encourages or justifies rape.
(Yes, sometimes victimes will be painted as promiscuous slut - but I think most people understand what this is, and what it (does and doesn’t) mean).
That does not mean I believe that prior sexual activity is automatically irrelevant: Kobe Bryant’s team is trying to raise reasonable doubt by saying that genital injuries in the victim were caused by earlier sexual activity. That, to me, seems to be a reasonable defense, not just in this case, but in any case.
Imagine, for example, someone accused of beating someone who shows up in the emergency room the next day with bruises. Suppose that person was known to have been in a fight two days before the alleged attack, and possible in another fight the next morning, and that medical opinion was that the bruises in question could reasonably be viewed as possibly having come in one of the other two fights. That information would have to be considered relevant, and be admitted, no?
If we believe that it is less worse to let a guilty person go free than it is to jail an innocent man, I would hope that the law be as equal as possible, and in cases of conflict, tilt in favor of the defense.
It can happen, it has happened. If it is permitted, it will happen again. It has nothing at all to do with people being “progressive” or not, either. Rape is a horrible crime, and most people are scared silly of the idea that horrible crimes can happen to good people like them or their close relatives and friends. So, they grasp at straws. Blaming the victim is a way for those who fear becoming a victim to invent an illusion of safety.
Even if it were the case, rape cases hardly have a monopoly on the ‘blame the victim’ strategy. Why the apparent double standard that is applied for only sex-related cases?
It seems to be a matter of history. Before the introduction of rape shield laws, it seems to have been the defense tactic of choice. Likewise, there is a social stigma attached to having been raped. See also “madonna/whore complex”, “sexual double standard”, “good girl/nice girl double standard”, and similar stupid practices.
I’m not sure there is a double standard. Can you describe a comparable “blame the victim” strategy in another sort of case that doesn’t involve self-defense?
I’m fairly sure that there are lawyers who would try it, because I’m absolutely sure that there are jurors who would go along with it, especially in the case of a celebrity. A number of people I work with think the alleged victim was a liar who was looking to have consensual sex with Bryant and some point saw the possibility of a payoff. They thought this from the day the story hit the papers. They didn’t just think that there wasn’t enough evidence to say that Bryant was guilty. They didn’t think there wasn’t enough information to form an opinion either way. They formed an opinion that the alleged victim was a liar and it was impossible for Bryant to have raped her .As best I could tell from the discussion, their opinions were based on the views that
He didn’t need to rape anyone, because it would have been very easy for him to find someone willing.
Why would she have gone to his room if she didn’t want to have sex?
Once she went to his room intending to have sex, she had no right to change her mind- for any reason.
They didn’t even need to have her painted as a promiscuous slut.
And now a question for Bricker- is the OP correct in stating that the sexual activity of the defendant is generally relevant?
Prior bad acts are generally inadmissible against an accused, unless to show a common plan, scheme, motive, absence of mistake. Unless falling in to that relatively narrow area, the prior sexual activity of the accused isn’t relevant.
In days gone by, evidence of “deviant sexual practices” could be admitted to show the accused’s “lustful disposition.” That’s a thing of the past.
I demur – some “activity,” if deemed relevant to whether he has acted similarly (e.g., allegedly forced sex on someone on the first date) in similar previous circumstances, is by rule fully admissible; and the exception is broader than (but more or less includes) your ‘deviancy’ example from days of yore.
See Fed. R. Evid. 413:
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.
(b) 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.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, “offense of sexual assault” means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved–
(1) any conduct proscribed by chapter 109A of title 18, United States Code;
(2) contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person;
(3) contact, without consent, between the genitals or anus of the defendant and any part of another person’s body;
(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).
But . . . as to the putative victim – almost any “activity,” even if alleged to be relevant to whether she has acted similarly to what the defense contends (i.e., allegedly had consensual sex with someone on the first date, etc.) in similar previous circumstances, is by rule fully inadmissible:
Rule 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition
(a) Evidence generally inadmissible.
The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
In case anyone’s wondering, almost all states have an analogue to Federal Rule 412, and many may have one to Rule 413.
And this is what makes me wonder about the dispute in the Bryant case, though from what little I’ve followed, Bryant may be prevailing on the principal points of his argument . . .
Some of the type of evidence that Bryant is seeking would clearly (in the fed. system) be among the (very narrow) class exempted from the Rule 412 “shield.” I don’t know about the Colorado version of the Rule, but 412 goes on to say:
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
So . . . as I understand it, Bryant will get her underwear (should have gotten it already) as there is police evidence of record (I think) that semen samples were found showing she had had sex with someone other than Bryant before she went to his room – and there seems to be some suggestion that when she showed up for a med. exam a day or two later there may have been evidence of sex with (another) non-Bryant guy. As she’s claiming abrasion resulted from Bryant’s forcing himself on her, this is clearly within the exception to the shield (again, in fed. land – maybe Colo. is different). It’s one of the few things that escapes the shield.
I’ve deplored previously the 412/413 dichotomy.
“Ladies and gentlemen, defendant is a man who previously forced himself on an innocent young woman on a first date. Therefore you should find he did that here.” – No problem. Admissible.
“Ladies and gentlemen, prosecutrix is a woman who (a) has admitted to having consensual sex on each of 500 consecutive first dates/(b) has admitted to having a sexual predisposition to leading men on up until the last minute, and even of saying yes when she means no.” Not admissible, even though it is of clear evidentiary value, if only circumstantial, to (i) whether she actually might have consented to sex with a stranger in this instance (because no matter how you cut it, the prosecution is going to trade on the inference/knowledge that most women don’t do this); and (ii) whether defendant subjectively believed that consent existed. Well, hard lines for defendant, because (presumption of innocence notwithstanding), he can’t use this possibly-relevant evidence.
“But the fact that she had 500 consensual one night stands has nothing to do with whether she might have had a consensual one night stand here!”
Maybe in your world. Not in the world I, or for that matter any woman of my acquaintance who was asked to evaluate what had likely been the true nature of another woman’s likely behavior in a given instance, live in.
I get in a bar fight. I get the crap beat out of me. I’ve gotten in 50 bar fights over the past five years (none my fault, I swear) and am the town bad boy. Well – “prior bad acts” exclusion or not, my behavior on the night of the fight, as well as my history of provoking fights, are going to come to the jury’s attention one way or another when it comes time to prosecute the guy who beat me up. What’s that you say? They may not prosecute him at all because barroom brawls are notoriously he said–he said affairs, with provocation on both sides? Well then – the smart thing for me to do is avoid any situation that looks like turning into a barroom brawl. “But that’s not fair – it’s as if I told you you could never go to a bar at all!” Well friend, yes – certain bars, yes. Certain situations I just don’t mess with. It’s not faaiiir, but I realize I could get involved in something I wouldn’t know how to stop, and the law might not be of much use to me after the fact. Especially if I know I have predelictions (drinking too much or getting aggressive when I drink . . . or hooking up with strange dudes) that might increase the near occasions of things going wrong.
“Rape is a crime of violence.” Well then, perhaps it should be treated as such. “Er . . . well but it’s unique because it has a sexual element. Er . . . but it’s not really sex, because it’s not anything to do with desire, because if I woman says she didn’t consent, desire or perceived desire is irrelevant . . . and did we mention it’s a brutal crime of violence even when little or no force is used and the alleged coercion is only ‘mental coercion,’ or when it’s a drunken alleged ‘date rape.’”
It’s not to mock; I actually was having a debate with a freshly-minted “woman’s study” major. She was of the firm belief that until about 1970, men had the de jure and de facto right to “just take a woman off the street and do what they wanted,” or to rape with impunity from pretty much any penal sanction; you know, it was the days of the patriarchy and stuff. I mentioned in passing that to the contrary, till Coker v. Georgia, rape had carried a possible death sentence in 17 jurisdictions. That’s how lightly the patriarchy took rape. Remedial measures bending the usual default standard that all possibly relevant evidence is presumptively admissible, especially when the remedy is based on the false assertion that “women just taken off the street” were without a remedy (when in fact they had and have substantially better chance of seeing a case of real rape taken seriously by a prosecutor and jury than I do of having a case of real barroom GBH and mayhem upon me being vindicated).
In Sweden, we have experience of this sort of thing. We have basically the same laws here; irrelevant details aren’t allowed. For some unfathomable reason, this law simply isn’t followed in rape cases. The victim’s previous sexual conduct, clothing, reputation, everything is dragged into the open, and it does affect the outcome. It’s one of our big social problems here. You be glad you have it better.
What really pisses me off is that the accusor is protected from the media (in most cases) but the accused is not. I think everyone’s name should be withheld until the trial is over. It is nearly impossible to overcome a false charge of rape in this country.
Sorry – in order better to answer the OP, I should have contrasted Rule 412’s exclusion of any information about the alleged victim with the provisions/policies that (in any other case) would deem such information potentially relevant and admissible.
1. Relevant Evidence Generally Admissible
Rule 401. Definition of “Relevant Evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
2. Character Of Alleged Victim Generally Admissible
Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
(a) Character evidence generally
Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
. . .
(2) Character of alleged victim - Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused [is admissible]
So . . . in my barroom brawl example, it’s quite okay for my attacker (in his unlikely but hypothetical trial for beating me up) to say, “Yeah, well, you’ve got to understand, that Huerta was one mean and belligerent S.O.B., and I thought I had to break his face to save my own;” or to say any other mitigating fact that might make his actions toward me or another victim seem less unjustifiable; except that the only words he can’t substitute for “mean” and “belligerent” are (in the analogous context where the question is if he was led on to believe he had consent to sleep with a woman) “promiscuous” or “horny.” Why presumptive relevance should depend on which behavioral adjective is in question is beyond me.
3. Evidence Of Habit To Prove Actions In Conformity Therewith
Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
“That idiot Huertaalways starts talking about somebody’s mother being ugly after he’s had the eleventh Midori shot.” Presumptively relevant by Rule to proving I did the same last night before you were provoked into decking me.
“I’ve never seen Jane drink schnapps without going home with some guy and giving up the goods.” Presumptively irrelevant by Rule to proving her sexual escapade last night was, also, voluntary.
"But are we going to endorse ‘blaming the victim’ and putting her conduct on trial?!?! "
No. But, because of the legal fiction of innocent-till-proven-guilty (which I’d imagine most here don’t want to abolish; I’ve had my doubts about it), and because (activist metaphors to the contrary) the alleged victim of either a barroom brawl or a sexual assault is not “on trial” or in penal jeopardy, it is the general rule that the law is less solicitous of an as-yet-unproven “victim’s” sensibilities than it is of a defendant’s liberty, or constraints on his ability to show evidence that he believes would help maintain that liberty. In this respect, the rape shield policies are quite anomalous vis a vis otherwise-broad principles that the criminal defendant can throw in any manner of defensive theories, even scurillous ones (remember Nicole Brown’s alleged involvement with Colombian drug gangs, part of O.J.'s defense to the murder charges, which was permitted?), with the check on scurillity being the jury’s tendency to backlash against truly irrelevant or unfair slander of the victim. Heck, in Texas and elsewhere there is a storied history of (sometimes successful, sometimes not) defending against a murder charge as follows: “He needed killing.”
I hope that’s not true. Though I suspect that one’s best chance of doing so is in the prosecutors’ discretionary decision whether to bring charges. Although they’re under intense political pressure, and are bombarded with such unprovable doctrines as “women don’t ever lie about rape,” I’d suspect some prosecutors confronted with flaky suicidal women who had sex with multiple men upon short acquaintance would understand that neither the demands of justice, nor the practicalities of bringing charges with a good chance of success before a jury (i.e., the dubious “victim” in a particular case, even if her past is concealed, will come off as the nut she is when testifying), militate in favor of absolutely bringing charges.
Secret trials strike me as inherently problematic in the U.S. at least. I doubt we’ll be seeing the accused’s names protected through trial.
I don’t understand the analogy. Tom goes out and gets into 500 fights, then one night does not want to get in a fight, goes to his usual fighting bar and does not try to start a fight, and Joe walks up to him and assults him because Joe is assuming that Tom will beat him up if he doesn’t strike first? If Joe had a reason to be afraid that Tom would harm him, his past behaviour (beating up Joe 500 times) would be relevant.
Jane goes out and has sex with someone in the bathroom 500 times. One night she’s only in the mood for beer. Joe follows her to the bathroom and forces her to have sex. What was he afraid would happen if he didn’t? Is his defense that he was afraid she would beat him up if he didn’t rape her? What harm would come to him if he did not have sex with her?
A better analogy would be that Tom went to the bar 500 times and bought Joe a drink. One night he didn’t feel like buying drinks so Joe took money out of Tom’s pocket by force to buy himself a drink. Is Joe going to try to use the defense that Tom did something willingly 500 times it was okay to use force to make it happen the 501st?
The point is: in a given situation, was past experience or reputation perceived by the accused as relevant to whether his actions were wrong or disproportionate? I never said that Joe had sex with Jane out of self defense. Rather, the theory is, Joe had sex with a passed-out Jane, say, because he knew Jane routinely liked to go out and get schnockered and have sex. Joe was wrong (Jane thinks Joe is ugly, unlike her previous 500 hookups), but Joe claims his mistake was a reasonable one.
Or . . . Tom bought Joe drinks 500 times. Tom goes out to have a cigarette, leaving his wallet on the bar. Joe takes a fiver out, reasonably assuming (he says) Tom won’t mind spotting him the 501st. Tom does. Is Joe forbidden to point to Tom’s history in explaining his subjective belief that his taking of money was not without Tom’s consent?
Or . . . Tom is the town bully but (as you say) has decided to stop fighting. He hasn’t, though, decided to refrain from the boisterous political and personal arguments that have customarily preceded such fights. Joe finds himself in just such an argument with Tom, when Tom (good-naturedly; after all, he’s forsaken violence) jokingly (per Tom) shouts “I oughtta kill you for saying that about me mum!” Joe is forbidden from putting that “joking” comment in context.
The problem with all your counterexamples is that they take for granted that “force” not only is alleged to have been used by the defendant, but is definitely known to have been used (by virtue of Joe’s missing teeth and swollen-shut eyes." But of course, in many rape (or “rape”) cases, there is either (i) no allegation of actual force being applied (i.e., “he told me I wasn’t leaving the room without putting out, and I was terrified”) or (ii) an allegation of force being applied, but little or no physical or third-party evidence that force or physical contact (other than the physical contact necessary to complete intercourse) did take place. Now, if actual force or mere threat of force were used to complete the sex act, sure, that’s rape. But, that’s the $64 question. Barroom fights, by definition, tend to happen in public places, and tend to be forceful enough that the combination of dozens of corroborating witnesses, and grievous physical injuries, removes any element of doubt about whether Tom committed the predicate act necessary to establish battery, GBH (viz., beating the unholy crap out of Joe), and reduce the inquiry to whether Tom’s mens rea is also culpable. Even in such circumstances where the underlying act (forcible violence) is rarely in question, determining ultimate liability may be a murky question.
Because rapes (and especially “date rapes” or the like) happen, by definition, out of the public eye, third-party corroboration is not available; physical evidence of the forcible nature of defendant’s conduct (beyond the fact of intercourse, which is often not in dispute) is not available; in such situations, whether force was used is one of the ultimate factual questions, rather than being a baseline assumption, and defendant should, I’d argue, be allowed to adduce any available facts to show that (a) he didn’t use force; (b) he wouldn’t have needed to, because she consented. If one of these corroborating facts was that she had consented to non-forcible drunken sex 500 times before, well, that’s a “habit,” which (as to all other forms of habit) is presumptively admissible to prove action in conformity therewith.
Look, these debates generally only come up in the borderline (i.e., “date rape”) situations. I know, I know, there will be a parade of horribles about how allowing any reference to the accuser’s past or credibility will equal carte blanche for (as my friend put it) “just taking women off the street and raping them.” But (anecdotal evidence aside), as to acts that we can probably all agree are culpable rape, deserving serious punishment (e.g., abducting a stranger off the street and inflicting visible injury on her by force), neither the victim’s past, nor the rape shield law, should or would really be relevant – the woman’s bleeding, bruised, and abducted; so what if she’s the town tramp? The jury would stand a decent chance of convicting nonetheless – just as juries routinely convict defendants who murder admitted drug dealers or petty thieves or other “unattractive” characters (whose characters are not excluded from evidence).
The problem comes when activists (who really want to re-define “rape” or “coercion” or “force” to broaden them dramatically beyond the consensus understanding of forcible sexual intercourse) pursue their aims by rigging the evidentiary rules. It’s a gray area, he said/she said, we were both drunk, no-evident-physical-signs-of-force, “date rape” scenario? Hey, women don’t lie about “rape,” tie goes to the runner, and we’ll achieve resolution of all the pesky ambiguities about who said or consented to (or was likely to say or consent to) what by putting our thumb on the scale and decreeing that her foibles and predelictions are off limits, his are fair game.
I think you’ve hit the nail on the head with this one. It’s fairly counter-intuitive, given the historical definitions and popular conception of rape, to accept as equally ‘valid’ some of the broadening of the term.
I’m one of those that, if I were a proponent of the death penalty, would call for capital punishment of rapists. As it is, I advocate the harshest punishments possible. However, I am always torn because I can not in my mind equate some of the violent acts that I associate with rape with some of the things covered by the law- how the term has been divorced from force or the threat thereof.
As far as the rules of evidence goes, I understand that it was standard practice to paint the victim as a ‘slut’ in order to avoid a conviction, and the new rules have helped with that somewhat. However, while I would like to see them preserved (for both sides- unless there has been a prior rape prosecution of the accused, or a history of rape accusations from the victim), I would like to see some tightening up of the language in the charges. If we need to, a separate class of felony with different rules, and not using the ‘rape’ label.