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?

And the men who don't want to hang on to their unearned privilege including the right to rape - just in case - reject that view.

Surely it is easier and more definitive all round for men to gain consent than the apparent minefield men face reading minds and body language I can't understand why any man would argue against a method that would ensure you weren't raping someone.

Well I can...

Would the cleanest way be more examples of what evidence the defendant would have to provide to show he had ascertained his reasonable belief in consent?

So that a scenario of the sleeping woman who moaned would be one where the defendant had taken insufficient steps to check his belief.

Of course there is.

It's just that many people oppose it because of rape myths and structural misogyny.

No system is ever perfect. There will always be a tiny percentage of people (or a larger percentage, who knows?) who will be sent to prison for crimes they didn't commit. The public as a whole accept that that is the case - people get convicted for murder, robbery, burglary, fraud etc. that they didn't do, from time to time. It's rare I believe, but it's not unknown. In order to punish the ones who are guilty, we accept that sometimes mistakes will be made and innocent people will be wrongly convicted and when they are, we look at the systems that led to that and if possible, modify them so that that mistake isn't made again and we compensate the unfortunate victim of the miscarriage of justice.

It's only with rape, that the public at large cannot countenance the thought of even one man going to prison for something he didn't do. I suspect that the reason for that, is that uniquely as a crime, it is men doing to women what many people sub-consciously feel they have a right to do anyway - so unlike with burglary or fraud or whatever, they are simply outraged by the thought of one going to prison for not even having done it in the first place. They're not nearly as upset by men going to prison when falsely convicted of robbery, because they know that he's not entitled to commit robbery in the first place.

In the Haydor Khan case, that Deb linked to earlier, he was drunk, apparently stumbled into the wrong hotel room and had sex with a woman he apparently thought was his girlfriend.

He was found not guilty, which is interesting, because I always thought that neither drunkenness or ignorance were considered a reasonable defence in law?

How did he get away with that? A crime was committed, there is a victim and a assailant - but somehow he's not culpable? Because he was pissed.

Good point Sabrina

With regards to ignorance, the maxim is that ignorance if the jaw is not a defence, ignorance to facts is because it will go to the defences perception of the facts and mens rea. So the classic example is someone walking down the street and they see a person getting mugged, they intervene and use force but the people involved are actually actors.
It would be a defence to plead ignorance to the facts I.e. I did not know they were actors.
It would not be a defence if the person claimed they believed it was legal to best up actors.

Now it's a very simplistic examples but that's the distinction although the maxim of ignorance being no defence is often repeated the correct term is ignorance of the law is no defence.

Wrt the point on drunkeness it is not a defence to crimes of basic intent such as rape but it wasn't run as a defence in that case.
The defence didn't claim that he could not be guilty due to intoxication, rather they said that the man held a reasonable belief as to consent and although this belief might seem implausible the mans drunkeness was how he came to reasonably hold such an implausible belief.
This is different to running a defence of intoxication. It leaves the matter of reasonable belief in the hands if the jury as the deciders of fact and they used mental gymnastics to accept this version of events.

A terrible decision but to my mind it wasn't one based on any jurisprudence or legal philosophy, it was one which was left in the hands of the jury to decide what happened as a matter of fact and that they managed to somehow crowbar through the door of "reasonable doubt"

Apologies for all the typos
Autocorrect is not my friend

But how did he demonstrate that he believed he had consent? She was asleep. How could someone consent when they're asleep? Whether a case of mistaken identity or not?

That jury must have believed that it is reasonable that he thought he could just get into bed and have sex with his sleeping girlfriend.

I couldn't tell you.
As far as I remember from reports when the case happened the timeline he claimed was along the lines of he tried to initiate sex with gf, she wasn't interested. He went to toilet. Came back to wrong room and got in bed with the victim but who he believed to be his gf. She did something which made him believe his gf had changed her mind. (Can't remember what this was.)

I was just addressing the two points with regards to the bekief that the accused had relied on ignorance or intoxication in a way which the law forest normally allow.

Tbh I don't think that the problem for rape convictions is one that stems from the law being inherently lacking, I do think it is a societal problem which then gets reflected in juries decisions.
So in the case now being discussed you have juries accepting ludicrous claims of reasonable belief that you don't get in other consent based crimes such as assault or theft.
The accused didn't get off through any legal tactic or loophole. He got off by quite simply saying "oh, I didn't think I was raping her" and it being believed by a jury in circumstances they'd never do for other offences.
Had the man been accused of punching someone or stealing a car and had said to the jury "I thought they were allowing me to punch them\ I thought the stranger was consenting for me to take their car" then the judge would have had to leave that to the jury as a matter of fact to be decided also, so it's not a legal occurrence that only apies to rape. The difference is you wouldn't find 12 people from across society who'd accept that explanation but you will when it comes to rape myths.

Yes, and if he had had sex with his sleeping girlfriend, she could have made a rape complaint on those grounds.

And a jury would have found him not guilty again MO, because men are entitled to rape sleeping women who are their girlfriends - in fact, it's not rape, it's just bad sexual etiquette.

Quite possibly, Basil.

But the actual crime fell in some kind of loophole I think.

There's no loophole it's just juries, ie members of society, believing the unbelievable.
As I say, it's no different to any other consent based offence in the way it is treated by the law, it's a matter of what juries are willing to believe when it comes to rape in contrast to other offences

Mayor, in that instance, wasn't there a loophole because of identity and intent? There was a discussion on here but I can't remember the conclusion.

Yes I think MQ is right.

It's not he law itself which is at fault here; the law's quite clear that he committed rape.

It's the jury which weren't prepared to convict him, because his life is worth more than her's. Juries will bend over backwards to believe the most preposterous stories, if the defendent presents as sympathetic enough. There was a case discussed here some time ago now, where a woman was pulled down an alley way and anally raped and the jury believed the rapist's tale that it was consensual sex that she'd been ashamed of the next day.

Even in the classic stranger rape scenario, juries are prepared to believe a man in a suit above a woman, to the extent that their bar for conviction becomes not beyond reasonable doubt, but beyond any doubt whatsoever. Which is a massive difference in practice.

That's not a weakness in the law; that's the fault of a misogynistic society.

"Mayor, in that instance, wasn't there a loophole because of identity and intent? There was a discussion on here but I can't remember the conclusion.
"
I don't remember the exact discussions on here but I do remember pe

"Mayor, in that instance, wasn't there a loophole because of identity and intent? There was a discussion on here but I can't remember the conclusion.
"
I don't remember the exact discussions on here but I do remember people making statements along the lines if "so essentially he's saying I'm not guilty of raping x because I thought I was raping y" due to the issue of his gf also earlier saying no that they were saying even if it was his gf it would still be rape.
That's a fundamental misunderstanding of what his defence was actually saying.
His defence was that he thought it was his gf and he thought his gf was consenting.
There's no catch 22 or legal loophole etc. there's just him saying I had an honest belief she was consenting.
Now whether or not that is true is a matter of fact for the jury to decide, it is there domain exclusively. No judge or lawyer can make decisions on matters of fact so once the defence put this forward it is in the hands of the jury.
So it's not a loophole or a grey area etc. it's the same for any consent based crime.
If I was accused of rape/assault/ theft and my defence was that I believed I had consent, then no matter how ridiculous or warped my reason for the belief it would be for the jurors to decide if I had such a belief.

If he reasonably believed it was his girlfriend, and it had been, then yes, he was raping his girlfriend. But he wasn't charged with that so couldn't be found guilty of it.

My personal view is that his belief it was his girlfriend wasn't reasonable and so he couldn't have had reasonable belief that he was having consensual sex, but the jury obviously saw it differently.

X-posted, mayor.