You indicated that past promiscuity makes it more likely that an alleged victim consented. I am honestly curious if, in your mind, long past promiscuity, with nothing in her recent past, also makes it likely she consented.
The problem here is that I think all you people are playing games, and I’m loath to play along. So how about you take a position here instead of JAQing?
Do you believe that the claim that a tenuously-connected person had consensual sex with you is equally believable and likely if that person is a promiscuous person versus if they are not?
Answer that forthrightly, and then we’ll see how that applies to your question.
[FTR, nothing I’ve said here implies that rape shield laws of this sort are necessarily bad. The rationale for rape shield laws is that they protect the victim from being revictimized by the defense counsel, or the jury from being prejudiced, and as such they amount to a trade-off between relevance and other worthy considerations. What I’m addressing here is the claim that prior sexual history is always irrelevant, which is a ridiculous and illogical claim.]
Not really, no. Not in the case of a rape case. If they claim it was not consensual it seems very unlikely to me you could establish any connection between the alleged prior promiscuity of the rape victim and the likelihood the claim is true or false.
They are behaving exactly as their male peers are. And they are doing so for the same reasons–because they don’t know how to drink (I’ve been confused-drunk maybe twice in my life, and both cases were when I was young and didn’t understand how much alcohol I was consuming and how it would effect me). They are doing it because it’s fun. They are doing it to impress people and fit it. Exactly like the dudes. And it’s not like getting-passed-out-drunk is the story behind all rapes. If a girl gets a little tipsy and heads to another party with a boy she just met and he turns out to be a rapist, she’s told her behavior was unwise. Men get tipsy and head out with a guy they just met all the time.
If townies haunted a college campus, looking for drunk frat boys they could beat up with impunity, no one would say “Well, why do those frat boys drink so much? They should show sense!”. They would demand that the college do something to make the campus a safe environment.
It’s not like even all rapes are on college campuses (why do we always talk like they are?). We live in a society where women are supposed to live under much more severe restrictions to movement and association than men, and then we accept that as normal.
I do not believe that a pattern of promiscuity makes a woman more likely to falsely accuse a man of rape, which is really what is relevant here. If anything, I would think a woman who had had sex with hundreds of men and never cried rape is more believable, not less.
Why do you think a promiscuous woman is more likely to lie about consenting to sex?
ISTM you’re avoiding the question by resolutely focusing on a direct connection between the “alleged prior promiscuity” and the claim of it being non-consensual. But that’s not how the logic works.
The point here is that there are two mutually inconsistent claims, call them A and B. One or another is true. Anything that decreases the likelihood that A happened increases the likelihood that B happened, and vice versa. So anything that has a bearing on the likelihood of A having happened automatically has an indirect bearing on the likelihood of B having happened. Saying “such-and-such is irrelevant because it has no connection to B” when such-and-such has a direct connection to A is a logical error.
[To use an illustrative example I came up with last time this was discussed here, imagine we have witnesses and video of so-and-so robbing a bank. He is arguing in court that it was his identical twin brother. Is evidence that the guy has an identical twin brother relevant to whether he is guilty of robbing the bank? Follow-up question: are people with identical twin brothers less likely to rob banks than other people? Correct answers are yes and no.]
The question is not about protection. The question.is about whether or not prior sexual history in the case at hand is probative is proving or disproving consent.
To take an example People v. Jovanovic 700 N.Y.S.2d 156. Accused claimed that complainant and he had a consensual S & M encounter. Complainant stated that she had been held against her will. At trial, the judge refused leave to the Defence to adduce emails in which the accused had stated her liking of and participation in, S & M activities including some with the accused. Accused was convicted. On appeal, the conviction was vacated as the emails had been improperly excluded.
Now why was that the case there? It was not due to any value judgement on the complainant. Rather it was since the prosecution case theory was built upon her being held against her will in S & M activities. The emails gave evidence which rebutted this theory to the extent of i) that she did at time enjoy S & M and that ii) **her state of mind **towards the Accused was such that she was willing to have sex with him earlier. Both of these bolstered the defence claim that the encounter was consensual.
Did the emails definitively prove the matter one way or the other? No. Its rare for single pieces of evidence to do so. What it was was evidence which supported the defence theory and thats why it was relevant.
That is in my opinion, probably the best change that Rape Shield laws have brought as it makes the defence state exactly why they want to adduce history rather than a mere fishing expedition.
Same issue here.
The likelihood of a woman falsely accusing a man of rape is relevant to the question of guilt here, but it’s not the only relevant factor. So saying something has no bearing on the likelihood of that particular aspect is not the same as saying it has no relevance at all to guilt or innocence.
Again. To the extent that something bolsters the defense version of events, it’s relevant. The fact that it’s not relevant to all sorts of other things doesn’t make it irrelevant in total.
I don’t really see the relevance or the link between sexual history and consent in any one given situation. So no, promiscuity does not make it more likely to me that on this instance, she is lying.
You could make the opposite argument - a woman who had a sexually promiscuous past may be less likely to lie about the most recent incident. After all, it’s not like she is guarding the myth of her virginity. A previous virgin with morning after regrets could be argued to more likely to falsely accuse. But that argument seems weak as well.
No, I don’t believe that.
I believe a promiscuous person is* less* likely to bring forward a false accusation.
Well I think that’s completely illogical, as above. Nonetheless, having said I would address your question if you addressed mine, I will.
As indicated earlier, there’s no black-and-white answer to these things. You would need to consider the totality of the circumstances. In most cases, I would think even a history long in the past would increase the likelihood of that same type of activity having been repeated in the present, as compared to someone who never had that history, though obviously not as much as a more recent history would. But it would depend on the overall context.
That’s not the question. The question is:
Is a promiscuous person more likely to have had consensual sex with some tenuously-connected person than a non-promiscuous person?
Wrong! Just because I said yes to him and him and him does not mean I lose the right to say no to you. Nor does it make it more likely that I will falsely accuse someone of rape. Promiscuity does not equal consent.
I completely agree to all these statements.
[QUOTE=raventhief]
You could make the opposite argument - a woman who had a sexually promiscuous past may be less likely to lie about the most recent incident. After all, it’s not like she is guarding the myth of her virginity. A previous virgin with morning after regrets could be argued to more likely to falsely accuse. But that argument seems weak as well.
[/QUOTE]
[QUOTE=Latro]
I believe a promiscuous person is less likely to bring forward a false accusation.
[/QUOTE]
Yes. That could well be the case. But each case facts are different. A woman who is (say) married and is very promiscuous behind the back of her husband might have reason to lie about a particular encounter being rape. An otherwise straight man might lie about a homosexual encounter.
I can think of several circumstances (theoretical and actually seen in law reports) where a promiscuous individual had reason to lie about promiscuity and also where a a generally chaste and prudish person also had reason to lie about an encounter being consensual.
You can’t make any hard and fast rules.
I think FP may be missing a factor here. The question under discussion is not did this person have sex with that person. We are discussing evidence at a rape trial, so the question becomes did person a have consensual sex with person b and then falsely accuse person b of rape? Stripping the question of the accusation makes the discussion far less relevant. If you are merely assessing someone’s likelihood to have had sex with someone else, perhaps logically sexual history could be relevant. But that’s not the topic under discussion.
Eta: that’s why your bank robber hypothetical isn’t really logical or relevant. In that case, evidence says he was there, and he says he wasn’t. In the rape trial, the question isn’t "did sex occur? " Assuming both parties agree sex took place, the question is "who is lying about consent? "
Provided you define “promiscuous person” as “someone more likely to have consensual sex with a tenuously-connected person” then the answer is certainly yes. The first rule of tautology club is the first rule of tautology club.
Otherwise, without a *useful *definition of “promiscuous” your question is itself useful only as a rhetorical exercise.
No, that’s not the question. The question is “did consent occur?”. The insistence of focusing on “who is lying?” is just an attempt to skew the logic.
[If you wanted, you could do the same in the bank robber case. You would say: “The question is 'is the guy lying about not being there?'”, at which point you would observe that having an identical twin brother doesn’t have a bearing on whether someone would lie about not being in a bank.]
To the contrary, what you’re doing is an empty semantic exercise, devoid of any substance whatsoever. Observe:
Suppose the defense counsel graciously agrees to refrain from bringing up any evidence that the alleged victim is “promiscuous”. Instead, he will bring up evidence that the accuser is “someone more likely to have consensual sex with a tenuously-connected person”.
Are you OK with that?
If you are talking about evidence at a rape trial, I would say exactly the opposite. The only question at a rape trial is whether or not the accused had consensual sex. It is very emphatically not if the complaining witness is lying - she is not on trial. Only the accused is on trial, and if he is found Not Guilty, that does not show that the witness was lying, except accidentally.
Not Guilty means that the prosecution did not produce enough evidence to show all the elements of an indictment beyond a reasonable doubt.
Regards,
Shodan
Wait, are you saying that’s actually the definition of “promiscuous” you’re using here? Because if so, then your previous question is indeed completely tautological.
I’m not sure what you mean in asking if I’m “OK with that.” I’m just wondering how you define promiscuity.
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More or less. Unless there’s some nuance you’re reading into it that I’m not seeing.
The questions are i) was there consensual sex and ii) did the Accused know or should in the circumstances have known, that the complainant was not consenting.
Rape is not (yet) a strict liability crime.