sexual history of rape victims

[dorade]

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?

Buffy

Yes, that is the problem with juries they come with they're own preconceptions - no matter what a judge says to them. On other occassions it might be a strength. So, is the answer to do away with juries and to have Judges determining the facts of the case. I'd have no problem with that, its what magistrates do anyway.

sabrina I have come across cases where a defendant's prior sexual history has been aloowed to be introduced.

One in particular was where the defendant had had several sexual relationships with much younger women (16yrs).

The reason it was allowed to be brought up was because he had asserted he only ever had sex with women his own age (he late forties). So it was brought up to challenge something he said.

That's interesting wordfactory - It was a genuine question.

Are you able to say in what circumstances in court, at the present time, a woman's sexual history becomes relevant?

Well it's case by case sabrina.

The presumption is that a victim's history is not relevant.

The defence have to make an application to allow any evidence before the jury. They have to convince the judge that it is sufficently relevant and goes to the heart of the case.

It's certainly not an application made by the defence in every case and every application is not successful.

I think if I were to change anyhting about rape laws it would be to toughen up this part.

But it's difficult. If a judge refuses such an application, it makes an appeal more likely as the jury didn't get to hear the full defence case.

Word, is the same true of other crimes? So if a victim of GBH has a history of getting into fights and the accused is cla

...claiming that the assault was self defence, is the victim's history admissible?

"She danced with the defendant with whom she had had sexual intercourse on two previous occasions about 12 months before, during a relationship which had lasted 3 weeks. She kissed him and agreed that she went willingly with him outside the club for a cigarette."

The issue with this kind of evidence is that, as a juror, you are trying to judge the facts. On balance of probability (as you cannot know the witness's actual actions or state of mind as you were neither there or in her head), a woman is far more likely consent to have sex with someone in the above situation than in a very different situation (chatted as strangers, sober, no flirtation, no relationship history). It is thus "evidence" for the defence. Clearly the witness will refute this in her own oral testimony and provide a different narrative. However, IMO, it would be hard for a juror to cross the rubicon between "I think he raped her but I really don't know" and "I am sure that he raped her". It is not a moral judgment nor in any sense a denial of her right to withhold consent at any point, it is merely the difficulty of being sure as to what happened when you have two conflicting narrative versions of events.

Buffy,

You make the point that there is no such thing as pure objectivity. I think I would agree with that. However, better educated people come close as they have been taught over years to disregard their "fast and lazy" initial thoughts and try to put more mental effort into solving a problem based on its own merits. As a juror, this would be listening to the evidence and, above all, taking one's guidance as to law from the judge. That is also, fundamentally, me experience of jury service.

moderately in other cases, a witness can be questioned on pretty much anything. And the defence do not need to make an application.

Obviously a judge will step in if it's utterly irrelevant, or bullying or a fishing expedition and ask what the point is. 'Could I ask where this line of questioning might actually lead?'

And if a defendant has previous convictions, he needs to tread carefully, as accusing a witness of poor character can open up having his own character placed in front of the jury.

"On balance of probability (as you cannot know the witness's actual actions or state of mind as you were neither there or in her head), a woman is far more likely consent to have sex with someone in the above situation than in a very different situation (chatted as strangers, sober, no flirtation, no relationship history)."

Is that you being objective Larry?

Because the assumption that a woman is more likely to consent to have sex with a man she has stopped having sex with as opposed to one she has never had sex with, is hugely prejudicial and not even remotely objective.

I can't imagine going to bed with most of my ex partners - the idea absolutely repulses me and frankly I'd be more likely to consent to sex with a random stranger, than with the father of my children, for example.

But that seems to be something that most men aren't aware of - the level of repulsion women can have for men they no longer shag. So much for objectivity.

"I can't imagine going to bed with most of my ex partners - the idea absolutely repulses me and frankly I'd be more likely to consent to sex with a random stranger, than with the father of my children, for example."

What a fantastic example of scientific argument! A self chosen sample of one and the sample being oneself. I can see a Nobel here.

Firstly, I suspect that statistically a woman is FAR more likely to have sex with someone she has already had sex with. I cannot back that up right now but I will take a look to see if I can evidence it. Secondly, the testimony exampled above was concerning a 3 week relationship and an admission that she had flirted and willingly kissed the individual concerned. Would you flirt and willingly kiss the father of your children? The three things combined: previous sexual history, flirtation and physical intimacy would to me, and I suspect to 99% of other people, be more likely to lead to sex than no previous history and no preamble.

On balance of probability (as you cannot know the witness's actual actions or state of mind as you were neither there or in her head), a woman is far more likely consent to have sex with someone in the above situation than in a very different situation

If she consented to sex, then there would be no rape trial. Unless you're saying that women consent to sex and then cry rape in the morning Larry? Are you saying that is a common occurrence?

"If she consented to sex, then there would be no rape trial."

Classic. So, let's do without trials altogether, let's go straight from accusation to sentencing as "if she consented to sex, there would be no rape trial".

Sabrina,

It really worries me, with statements like that, that one day you may be on a jury and have someone's freedom in your hands.

Are you saying that it' a common occurrence for women to consent to rape and then cry rape in the morning Larry?

It really worries me that you could be on any jury, Larry, with your superior "I know better than anyone" attitude.

Firstly, I suspect that statistically a woman is FAR more likely to have sex with someone she has already had sex with

larry that's risible. How can anyone (even an actual woman) possibly say that? On what do you base that assumption?

*consent to sex

Larry, a woman is FAR more likely to be raped by a person she has already had sex with than by a stranger down an alley. Rape within an existing relationship is far more common than stranger rape.

"Are you saying that it' a common occurrence for women to consent to rape and then cry rape in the morning Larry?"

Nope. That is a ridiculous straw man you are punching. I accept the research findings of 2-3% of false accusations.

"It really worries me that you could be on any jury, Larry, with your superior "I know better than anyone" attitude."

I have been. We convicted. HTH

If you accept the 2-3% figure for false accusations - then why is it relevant in a rape trial that a woman was drinking, dancing and flirting? If she's more likely to consent under these situations, then that's fine - but irrelevant. She consented. There would be no accusation of rape, and therefore no rape trial.

You would only think it relevant if you thought it was common that women drank and flirted, then consented to sex, then cried rape in the morning.

Sabrina,

Do you actually think a man accused of rape should be tried or do you think the accusation is enough to convict in and of itself? That is what you have explicitly said in both your last posts.

If it is, I suspect that you have lost me and even most of the hard core on this board. If not, can you please clarify "If she consented to sex, then there would be no rape trial."?