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 and Debris

Yes - I'm not sure - I think it's an objective test, ie what the reasonable (and sober) person would have thought.

Beatrix

I wholeheartedly agree with you. It has however been suggested by some MRA's gits that this is exactly what should happen to complainants in cases where the defendant is found not guilty.

Sorry I didn;t put that across properly, I'm tired, and this subject just seems to cut and dried to me, that the whole argument makes me slightly incoherent!

Buffy, I think my question is at the crux of a discomfort I've felt for ages about rape law and one that as taken me a very long time to articulate.

Please, someone answer it in a lived legal context. No pressure, but have sense that my whole non-work future is based on your response .

In essence, it's about who gets to define rape.

But if the "reasonable" person is one who is full of rape myths, then where does that leave the victim?

I would love for the jury to believe that, in that single act of penetration, consent must be given, either in word or deed i.e. that the person that is penetrated is wanting that penetration and actively and freely demonstrates that willingness. I don't believe that juries do so. And I say that because I don't believe that the general public believes that the test I describe is necessary.

Ms or Mr Reasonable is more like larry and believes that the lead up to that one event is relevant to the reasonableness. It's not. Just check before you stick your cock in, fgs. And dont create a situation where you don't get an honest answer. I'd love to hearhow this is so difficult.

captainchaos and Beatrix I also agree and in fact in a case I know about, where the defendant was found not guilty, the judge stated at the end that the victim had honestly believed she had been raped (the subtext being that she therefore had not made a malicious complaint).

I always have [http://www.dailymail.co.uk/news/article-1360801/Haydor-Khan-cleared-rape-climbing-wrong-bed.html this case] at the back of my mind when discussing rape cases. Because it seems to demonstrate all that is wrong with our system. Where's the justice for the victm in that scenario?

sorry, this case

You can know that you have been raped and the jury doesn't believe you. Maybe the judge was ruing the jury's decision?

Debrislide that was exactly the case. The judge was saying that even though the jury found the defendant not guilty of rape, that the victim had not lied and so there were no grounds for the defendant to bring a malicious prosecution claim.

Debris

This is from the CPS website. At the end of the day it comes down to an objective test.

"The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions:

Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).

If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element)."

It's not objective, though. It is subject to the jury's opinion i.e. it is still subjective as far as it pertains to them.

ergo, rape-myth-busing among the general populace is still a worthwhile endeavour.

Thank you.

That's partly why there is 12 members of the jury - to collectively be a representative of the 'reasonableness' out there in the general population.

mmmm....?

Buffy The test of reasonableness is not limited to sexual offences. Its logic stems from the long established idea that there is the concept of the 'guilty mind' (often given its latin name 'mens rea') required to convict.

Lesser offences that do not carry custodial sentences sometimes do not carry this requirement and are known as strict liability offences.

Buffy Then the test is no longer fit for use.

Just out of interest, when googling around this issue, I found a link on AFM that encouraged MRAs to aquit if they were on a jury in rape trial. Any rape trial, howevee clear cut. I'm not going to link so they don't get directed here.

I have pondered the strict liability issue. But it wouldn't work in cases of penetration, because of the consent issue.

Mens Rea is so easily discredited in the cases of rape as to be a non-issue, really.

Thank you all. I have renewed vigour in challenging rape myths. It is the only way to ensure more convictions of rapists.

Yes, it was never fit for use. Who thought it was?! And made law!

No such thing a rape culture, no siree.

The Sexual Offences Act 2003 requires the defendant to show that his belief in consent was reasonable. In deciding whether the belief of the defendant was reasonable, a jury must have regard to all the circumstances, including any steps he has taken to ascertain whether the victim consented. In certain circumstances, there is a presumption that the victim did not consent to sexual activity and the defendant did not reasonably believe that the victim consented, unless he can show otherwise. Examples of circumstances where the presumption applies are where the victim was unconscious, drugged, abducted or subject to threats or fear of serious harm.is a defence if the defendant believed that the victim was consenting, even if this belief was unreasonable, and this is a matter of fact for the jury.

From www.cps.gov.uk/publications/prosecution/rape.html

Interesting.

Sorry, this is rogue "is a defence if the defendant believed that the victim was consenting, even if this belief was unreasonable, and this is a matter of fact for the jury"

Why is there a state of non-consent only in certain circs? I am always in a state of consent, unless I indicate otherwise.

Wow, since starting this thread I've not had the chance to get on MN and now there are 324 posts. I'll go away and read...

Debris I am always in a state of consent

you've lost me.