sexual history of rape victims

(402 Posts)
dorade Tue 24-Sep-13 23:29:20

As I understand it, judges have the discretion to allow the defence to question a rape complainant on her sexual history. (Please correct me if that is not correct).

Can anyone explain to me why judges need this discretion and under what circumstances, if any, the use of it could be justified?

Suelford Wed 25-Sep-13 07:44:49

There is a lot of discussion about it in this case: R v A, but it's too early in the morning for me to attempt to summarize it! Basically they feel it is relevant evidence, and not allowing it wouldn't give the accused a fair trial.

QueOnda Wed 25-Sep-13 07:54:21

Message withdrawn at poster's request.

wordfactory Wed 25-Sep-13 07:56:41

In some cases it can be relevant.

For example, where the victim makes certain assertions about her sexuality/sexual history, the defence should be able to offer evidence that she has lied.

I came across this once as a lawyer, and think it was the right call of the judge.

I think of it as a bit like past convictions. They're irrelevent until they're not.

NicholasTeakozy Wed 25-Sep-13 08:11:17

I must be really hard of thinking, 'cos I've always struggled to understand why a womans sexual history has anything to do with her present. It's seems as if they're saying "you consented to having sex with these men, so you must've consented this time you say you were raped". It's irrelevant. Or maybe I am thick and it is relevant. hmm

YoniMatopoeia Wed 25-Sep-13 08:14:37

I thought past convictions couldn't be brought up before the verdict, and are only disclosed afterwards?

I'm with you nic. I can't think of a scenario where a woman's sexual history is relevant.

wordfactory Wed 25-Sep-13 08:33:10

In a case I had the victim insisted she was in a monogomous relationship with her partner and had been for many years. The defendant was asserting that he and she had been in a sexual relationship 'on the side' for a while.

The judge made the decision that the defence were allowed to challenge her evidence and place before the jury information showing that she had not been monogomous for many years.

Had she not have brought that issue up, it wouldn't have been relevent or allowed.

wordfactory Wed 25-Sep-13 08:34:53

yoni past convictions can be brought up if a defendant tries to paint himself as clean and honest.

If he says nothing, they can't be brought up (except in some very unusual cases of similar fact etc)

What strikes me about your example word is that the defendant in your case thought (or perhaps was encouraged to think, who knows) that having a socially acceptable, 'pure' sexual history would make her accusation more likely to be believed.

ErrolTheDragon Wed 25-Sep-13 09:17:11

Buffy - not quite, it was about whether she had or hadn't been in a relationship with this specific man - the relevance was whether she'd lied about this more than whether they'd had the affair, from what word said.

I can see that yes: if she'd lied about their relationship how can we trust that she's telling the truth about the rape. I do get that.

What I thought was interesting though was why not just say "yes, I was in a relationship with this man" <gasps from the gallery> "...but even though I am not conforming to your ideal of how a woman should behave sexually, he still raped me". And be believed.

Rather than people thinking that she's obviously a slapper therefore we can't trust what she says about the rape.

Unless of course she was lying about the relationship because she didn't want her long term partner to find out grin I know individual cases are complex.

wordfactory Wed 25-Sep-13 09:56:03

In that case, there were a number of issues.

First, the victim (and she was a victim as the defendant was convicted) stated quite categorically that she was in a monogomous long term relationship. And she used that relationship to bolster her allegation that the defendant raped her, in that any sexual activity outside that relationship would not be consensual.

Second, she denied being in a sexual relationship with the defendant in particular prior to the rape.

Both allegations were patently untrue and I think it was only fair that the defence could challenge them. On both counts.

So the defence were allowed to present evidence of numerous sexual encounters the victim had had whilst in her supposedly monogomous relationship and also evidence of an ongoing sexual relationship with the defendant.

There was unarguable evidence of both!

I'm not arguing that the wrong decision was made in this case at all, clearly I have no information whatsoever about it smile

I'm just saying that this:

the defence were allowed to present evidence of numerous sexual encounters the victim had had whilst in her supposedly monogomous relationship and also evidence of an ongoing sexual relationship with the defendant

...the fact that she lied about these things, is interesting. I'm wondering why she thought lying would be helpful. And one reason why she might have thought this was that she would be more likely to be believed if her sex life was more socially acceptable.

Am I making sense confused?

wordfactory Wed 25-Sep-13 10:23:34

You are making sense Buffy.

And it was a conundrum to all involved.

TBH the fornesic evidence was pretty damning. The woman was raped. If the victim had said nothing but 'X raped me,' it would have been enough. He probably would have had to plead.

But she made a ridiculously convoluted statement containing so many many lies! And she made even more stuff up in the witness box!

I came to the conclusion that she was a deeply unpleasant career criminal with only a passing relationship with the truth. And she nearly undid the case against the defendant wiht her lies.

Norudeshitrequired Wed 25-Sep-13 10:23:50

The woman's sexual history might be relevant in cases where the main argument is related to consent. It has been known for women to willingly have sex and then accuse the man of rape because:
.They have reunited with a partner
.They made a tipsy (but not blind drunk) 'mistake'
.It's morning and the beer goggles gave worn off
.She has a reason to be vindictive against the man
.Somebody found out that she slept with somebody who is less than desirable........

Sexual history would not likely be allowed to be mentioned in court in a brutal woman dragged down the back alley by a stranger type rape. But it might be allowed in a case where the woman has a history of promiscuity, slept with the accused at a party and has accused people before.
The aim of exposing the history is to establish who is telling the truth.

wordfactory Wed 25-Sep-13 10:25:09

It was a real eye opener for me as a feminist.

It smashed much of my naive preconceptions about rape and victims.

Goodness me rude I think you've managed to cram almost all rape myths ever in that one post.

YoniMatopoeia Wed 25-Sep-13 10:51:24

Oh my. norudeshitrequired - your post is rape myth bingo. I call house.

I don't think it's rape myth bingo, just a list of reasons why some women have made false accusations of rape.

Others include having to explain away a pregnancy or an STI.

These aren't rape myths, but genuine reasons why some women have made false allegations, however small that number of women might be.

Why can't we have a discussion about rape and rape myths, without anything which might hint that women do make false allegations, being leapt upon. The rationality of conversation has to come from both sides.

It becomes a problem when some people (not you world) emphasise the false allegations as evidence that calling into question a woman's previous sexual history is a rational and sensible response to all rape allegations.

It speaks to the idea of "legitimate rape" and the assumption that women, particularly sexually experienced women, will of course be manipulative and untrustworthy.

Nobody can deny that some women behave very badly. They are a very small minority though, and sadly this is extrapolated (by some people) to cast all women under suspicion. Rather like if we were to automatically convict men accused of rape, until such time as they could prove their innocence, just because some men rape women and then lie about it.

Norudeshitrequired Wed 25-Sep-13 11:22:27

www.bbc.co.uk/newsbeat/21016808

There are two false rape accusations made every month, so it isn't all myth.

www.dailymail.co.uk/news/article-2358759/Leanne-Black-finally-jailed-FIVE-false-rape-allegations-ex-boyfriends-years.html

www.bbc.co.uk/news/uk-wales-23645807

A couple of cases there that shows it isn't all myth.
It is important that sexual history is noted where it is deemed to be relevant. If the judge doesn't deem it significantly relevant then it won't be disclosed. In some instances it is necessary to disclose to ensure a fair trial

Norudeshitrequired Wed 25-Sep-13 11:24:24

Perhaps the women who make false accusations should be held to blame for the need to disclose sexual history in certain cases and not the judges or defence solicitors who are just doing their jobs.

A friend made the comment of if it was a burglary you wouldn't get the victim being asked if they'd previously given things away to charity

A couple of cases there that shows it isn't all myth

Oh for Christ's sake nobody has said it's all myth. What we have said is that there are very few instances, and those very few false allegations and other deceptions by women should not be allowed to dominate the way that rape cases are tried by the courts and reported in the media.

Yet they do.

It's not difficult to grasp.

Norudeshitrequired Wed 25-Sep-13 11:36:28

A friend made the comment of if it was a burglary you wouldn't get the victim being asked if they'd previously given things away to charity

No, but it might be relevant if they regularly sell stuff to cash converters and have made several burglary reports previously.

What we have said is that there are very few instances, and those very few false allegations

2 every week is quite a lot.

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