Maybe so. I’m not seeing that someone who has had a lot of sex, even with “tenuously-connected” partners, necessarily falls into that definition. Their history does not necessarily mean they are more likely to have sex with any given rando.
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Ok leave out the question of who is lying. i tried to edit quickly and phrased it very badly. if the sexual history of the victim is relevant, surely the sexual history of the accused is equally relevant? He is known to have a lot of sexual partners, thus making this partner more likely. It still doesn’t address the question of consent, which is kind of key in a rape trial.
Of course it does. If something has happened 7 times and now I’m alleging that it happened an eighth time, that’s more likely than if something has never happened and I’m alleging it happened now for the first time.
But that’s exactly the point. The history of the accuser having consensual sex is relevant to the likelihood that she had consensual sex again in this instance. The history of the accused having consensual sex is a lot less relevant to the likelihood that he had non-consexual sex in this instance.
That’s interesting. And I can see why email evidence in this case was relevant. It does indeed indicate a standing history of behaviour with respect to the two specific parties involved.
However, would this evidence be relevant if the email exchange was between the complainant and a third (unrelated) party with whom she had consensual S&M sex in the past?
Putting aside the particular issues with respect to sexual history and rape, the law of evidence in the US strongly disfavors the kind of evidence, which is labeled character evidence. The fact that a person has done something often in the past is usually not admissible to show they have done it on a particular occasion. This is because, as the commentary to the Federal Rules of Evidence reasons, “Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.”
In the law, it is not enough that evidence be probative. It must also be more probative than prejudicial.
I’m aware of that when it’s evidence against the accused. Is that also true when it’s evidence “against” the accuser? The law tends to be more careful about evidence against the accused, since the accused is facing punishment over it.
Depends. Sexual history with third parties (as opposed to with the accused) is always looked upon much more suspiciously by Courts (as the 19th-century judgement in post 17 shows). However, it certainly might be relevant to display her interest in S & M if during her own deposition she claims she disliked S & M and or is evasive.
My own Master’s dissertation was on rape shield laws across common law jurisdictions and from case law that I have read, modern Courts generally are permissive as far as permitting history with the accused to be adduced, while being hesitant to allow history with third parties to be led into evidence.
Richard Parker, I don’t think the U.S position is exceptional in this regard, character evidence is generally disfavored pretty much every except England and Wales since 2003.
Then why would history of prior promiscuity (as related to non defending party) be admitted to evidence for the defense, as per?:
If the question is “sex occurred, but was there consent?” I still fail to see what bearing her sexual history has on the question. It doesn’t matter if she had no partners prior to this instance or 100. That does not imply consent occurred this time. Humans are not logic problems to be puzzled out with probability calculations. A woman may say yes to several dozen men she wants to have sex with, and that doesn’t negate the possibility that she said no to the guy who is accused of raping her. The consensual sexual history of either party seems to me to have no relevance (or little - in some cases, the defense can argue that it does, as in the case of the emails above, which is the point of the exceptions under the rape shield laws) on the question of consent in this instance.
If the question is “Did sex occur (she says yes, he says no)” then the his sexual history seems if anything more relevant than hers. If he has a history of promiscuity, doesn’t that make it more likely that he had sex with this woman, even though he is saying he didn’t? If her history is relevant, then surely his is as well.
If the question is a logic problem ala “Woman A has had sex with over 100 men. What’s the likelihood that she had sex with Man B? Is it higher than Woman C, who has had sex with 1 partner?” Then yes, sexua history is relevant.
Obviously not “probability calculations” but the likelihood of something having happened is the core issue of criminal trials. You can’t say that something which changes the likelihood of the key accusation happening is not relevant just because it doesn’t completely prove or disprove it.
You are correct that the law is more permissive about allowing character evidence when it is presented by a criminal accused, for the reason you describe. However, in most jurisdictions and under the federal rules, evidence offered to prove that a victim engaged in other sexual behavior or evidence offered to prove a victim’s sexual predisposition is still forbidden. And the principal reason for the prohibition is the same reason as for the general rule, which is the belief that such evidence is more prejudicial than probative.
Another exception is if the evidence of prior conduct is about prior consensual sex with the accused. That too reflects an effort at line-drawing between prejudice and probative value.
But we’re already aware that you generally can’t bring in the victim’s sexual predisposition - that’s what this whole discussion is about. In your prior post you seemed to be casting that as only a subset of a general ban on character evidence.
And I’ve already observed (post #42) that one basis for the exclusion of sex histories is prejudicing the jury. But we’ve been discussing whether it’s also irrelevant.
Ah, but what if it is statutory rape? 
I believe you are a lawyer and I am not, but your point is valid. I was focusing mostly on the ‘not guilty means the complaining witness is lying’ thing.
Regards,
Shodan
Courts generally agree that it’s irrelevant for exactly the reason you stated - it serves to prejudice the jury.
However, if you wish to admit sexual history as it pertains to judgement in the court of public opinion, well then, you’re appealing to the lesser angels of human nature. In service of what?
It is a subset of a general ban on character evidence. Because of a particular history, it’s a specific subset of rules, but as Richard Parker explained, the reasoning is the same as in the general rule.
Specifically, under the federal rules,
To the extent that promiscuity is a character trait, evidentiary rules forbidding evidence about promiscuity are a manifestation of that principle.
Almost everything is relevant, in the strictest sense, in that almost any fact can be asserted to make some pertinent fact either more or less probable to have occurred through some tangled web of correlation. Promiscuity is no exception in that regard. The trouble is that in that regard, there are almost no exceptions, which is why there’s also the prejudice prong of the test for admissibility.
Irrelvant is not the same thing as “serves to prejudice the jury”. What I meant was , as Richard Parker subsequently put it more clearly that “such evidence is more prejudicial than probative”. Again, that’s not the same thing as irrelevant. Just that the prejudicial aspects outweigh the relevance.
Your post seems pretty misleading, based on your own link. Per your link, the general rule is:
(emphasis added)
So as a general rule, a defendant is allowed to offer evidence against the alleged victim. Subject to the limitations in Rule 412. And what’s Rule 412? That’s a rule which makes a special exception for sex offense cases.
F-P, I think there are two questions here.
Let’s look at some tests.
Joan has a lot of sex with a lot of different guys. Mary doesn’t. Neither one has ever accused a guy of rape before.
Frank says that he had consensual sex with Joan; Bill says he had consensual sex with Mary. Given these facts, if you had to choose one statement that was more likely, which one would you consider to be more likely?
I think everyone would agree that if you had to choose, Frank’s story is likelier.
But wait! It turns out that Joan accuses Frank of having raped her, and Mary accuses Bill of having raped her. Given that neither person has ever accused anyone of rape before, which story do you consider likelier?
Now, if you hear the stories from all four people, if you have all that information, is Frank’s story still likelier?
For me, absent the information of an accusation of rape, sure, the woman who has lots of consensual sex is probably likelier to have had consensual sex with someone. But adding that accusation into the mix suddenly removes that difference in likelihood.
I bake a lot of biscuits and give them to friends. My friend Martin has never cooked a biscuit. If Frank says I gave him one of my biscuits, and BIll says Martin gave him one of his, who’s probably telling the truth?
But if I say Frank stole one of my biscuits, and Martin says Bill stole one of his, is my proficiency at baking biscuits suddenly evidence that I’m lying about the theft?
The general rule is that you can’t do it, because it is not useful to producing just outcomes.
The rule about doing it in sex offense cases is that you can’t do it, because it’s not useful to producing just outcomes.
Can you provide an example of ‘useful’ relevance, in this context?
That’s just a logical error.
This seems pretty confused. For starts, you seem to be assuming that someone who never cooked a biscuit is unlikely to have a biscuit, so let’s work with that (if you meant something else you need to clarify).
But the real problem here is that - as previous - the relevance of the prior sexual history is in its having a bearing on one of two mutually inconsistent theories of what happened. In your case, it’s unclear what the alternative story is to the allegation being made, so it’s hard to say definitively how the logic would play out. If Frank and Bill are just denying that they got a biscuit from you or Martin, then it’s more likely that Martin is lying than that you are, since it’s more likely that you had a biscuit to steal than it is that Martin did.
I would assume that in such a situation evidence that you had baked biscuits and Martin never had would be admissible, in your respective cases.
[The more apt analogy would be if you gave out a lot of biscuits and Martin had a ready supply of biscuits but never shared any. Frank and Bill both admit to having eaten your/Martin’s biscuits, but claim you/Martin gave it to them. Your/Martin’s history or sharing or not sharing biscuits would be relevant in exactly the same manner as I’ve been saying here.]
That’s such a broad category that it’s virtually meaningless. Virtually everything in legal procedures is about “producing just outcomes” but it’s not helpful to reduce everything to that and claim it’s all one big rule.
Why are you putting quotes around “useful”? Whose use of the term are you referring to?