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?

I have posted nothing to imply that a proper trial shouldn't take place.

What I'm questioning is whether the woman's previous sexual history, or her behaviour on the night in question is relevant. It smacks of victim-blaming to say that her drinking, flirting, dancing etc is or should be read as an open invitation for rape. Or that she consented.

*or is somehow an indicator that she consented.

Sabrina,

The statement "If she consented to sex, then there would be no rape trial" directly implies that no women consent to sex and then accuse a man of rape. Not 2-3% but 0%. I just cannot parse it for any other meaning.

Please would you answer my question larry?

Or, let me phrase it another way? In your worldview, what evidence could a man reasonably bring if he knew that a woman had consented but subsequently accused him of rape? Given that in the real world, there are no action replays.

Yes I am talking about the 2-3% of false accusations. I know that this is a low number but it does mean that in 2-3 of every 100 rape trials, an innocent man is stood in the dock. This is not a vanishingly small statistic.

Buffy,

"Several times on this thread now, you've attacked posters based upon what "they said". Except what you're arguing against is what you wish they'd said.."

Please read her post. I am only making one assumption here, that I can translate from plain English into plain English. The phrase "if she consented to sex, there would be no rape trial" can only mean one thing. It is explicit. I do not wish she said it, she said it. You can read it for yourself.

Fine - deliberately misunderstand me if you like.

You said in the 'club' scenario a woman was more likely to consent (because you're obviously an authority on women, aren't you Larry. Being a man and all that). My point was that if she genuinely consented, then there would be no rape accusation, and hence no trial.

Unless you believe that women routinely consent, then later on cry rape, then that scenario is not relevant to the trial.

It is, once again, examining the woman's behaviour, rather than the man's, and saying that a woman has a partial responsibility for her own rape.

Eldritch,

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

Because in my life I have known many people have on off relationships. Clearly, if two people are attracted enough to have sex once, there is a higher probability of them having sex again, given that we know there was at least an attraction. How many threads on here are there re FWB and on/off relationships.

Sabrina,

"Unless you believe that women routinely consent, then later on cry rape, then that scenario is not relevant to the trial."

The sole point of the trial is to separate the 97.5% of rapes from the 2.5% of false allegations. That is what the entire case is about. Again your post makes it seem like the trial is an inconvenient irrelevance.

You seem to have entirely ignored my question as to what evidence you would accept from a man in trying to prove consent had been given.

Because in my life I have known many people have on off relationships

OK, thanks. For my part, I don't think one can extrapolate from that to any kind of general rule for men or women. I disagree that it could be any kind of common sense argument to use when deciding consent.

If I was raped by someone I knew I know I wouldn't report it because they would want to discuss my sexual history. I haven't had many sexual partners but even so I'm not prepared to talk about my past in court.

"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"

Found any evidence yet?

You sneer at me for only being a sample size of one, but I'm pointing out that your commonsense idea that women are more likely to consent to sex with a man they've already had sex with, is just wrong. I don't claim that every woman everywhere is repulsed and horrified by the idea of shagging some of their exes, just that it's reasonable to suppose that they're as likely to be that way inclined as "on-off relationships" inclined and so therefore your "objective" assertion that a woman is more likely to consent to sex with a man she used to shag, is wrong.

However it is a common assumption and one of the reasons most rape victims don't report. Because they know that many people have that ridiculous assumption because the other POV isn't really given much of an airing, is it?

Larry, you are considering it from the man's point of view. As always.

I don't consider a woman drinking, dancing or even flirting in a club to be valuable evidence that she might have consented and then regretted it in the morning. You obviously do.

I don't believe that a woman's behaviour should be examined, as to me there is no relevance to her behaviour as to whether she was raped or not. Her behaviour is not on trial - his is.

The far greater problem here is, as evidenced by ArcticFunky's post, a reluctance for women to report at all - particularly in cases where there is already a relationship and where the victim has been drinking. And that's due to the victim blaming and rape myths so pervasive in society - and which many jurors take into the courtroom with them.

You know, if we lived in a mirror image of patriarchy, where women had set up a society which oppressed men for thousands of years and men were only just beginning to gain some basic human rights, the fact that a woman had been drinking, flirting and kissing someone she has previously had a relationship with, would be taken as evidence that the wicked rapist man targeted her knowing that she was vulnerable to being accused of consenting. It would be considered common sense, really.

But we live in a patriarchy, which says that it's evidence that she's more likely to have consented than not.

From an objective POV, which one is more fair?

Lucky we have an objectivity expert available to advise.

Sabrina, sadly to the victim it seems that they are the ones on trial. If the perpetrator has a previous criminal record of a sexual nature, it can't be mentioned unless found guilty, yet the victim's behaviour can be used as evidence against her. How can that be right?

Unfortunately, mirry, I know that only too well. It is not right at all.

Except to people like Larry.

But - it doesn't matter what the statistics are of women having sex with their exes, or whatever.

What matters is the specific evidence in this trial, of this man, and this woman, and any other evidence such as other witness statements, CCTV, forensics.

Sabrina,

Let me assure you that I did not enjoy being a juror at the trial I attended. All the jurors felt very sorry for the poor woman and felt the questions asked to her aggressive and unpleasant. The difference between us is that I think the defendant has to be allowed to make his case in front of a jury.

I would be very happy if a kinder format were devised to try cases. However you are all ducking the issue of suggesting how a defendant should be allowed to make a case on an issue of consent.

Who on earth is even going to be collating statistics about sex with the ex, anyway?

Just as it doesn't matter what the statistics are about 20 year olds committing muggings, or black youths getting into fights, or single mothers shoplifting.

The case in court needs to be judged on the evidence in court, not on any stats.

You seem to have entirely ignored my question as to what evidence you would accept from a man in trying to prove consent had been given.

He has the presumption of innocence under UK law.

The evidence presented, which would normally mainly be the testimony of the victim, has to stand up to rigorous questioning by the Defence. But - I don't see why the woman's actual behaviour need be relevant to whether she consented or not. Unless you believe that women invite rape by their behaviour - or that women are obliged to have sex with a man after flirting with him, going outside with him for a cigarette, etc etc.

The defendant's lawyer makes the case for his reasonable belief in her consent based on whatever his reasonable belief was based on, on the specific occasion, at the point where he penetrated her.

By the way, I think (but haven't checked) that the 2-3% false allegation rate refers to all allegations, whether or not they reach trial.

I am absolutely on board with a fair trial, but I would also hope from the point of view of trust in the CPS, that the proportion of false allegations reaching court (in all crimes) is less than the starting percentage.

Part of the difficulty is that it is a defence (I think) for a defendant to show that he reasonably believed that she consented. In which case, his understanding and inferences from her behaviour would be highly relevant.

So he will be saying what she did, how she acted and how she habitually acted (if they know each other) led him to believe she was consenting. And she will be cross-examined to get her to admit she did do and say those things, act in that way etc.