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?

[wordfactory]

I think it probably does help rape culture persist but as a feminist and an ardent proponent of our CJS, I can't see how you square that circle. All witnesses to any crime have to be subject to rigorous scrutiny, which includes honesty and history. Rape can't be made an exception wihout seriously eroding a defendants right to a fair trial.

[SabrinaMulhollandJjones]

A woman's past sexual history should have no bearing on a rape trial - she is not more/less likely to have been raped in a particular instance just because of her past sexual activity.

I note how this instantly went into a discussion on 'false accusations' within about 3 posts and Declan Harvey, and that the true demigod of 'women lie about rape' has been evoked already. Why, except in a very exceptional circumstance, would a woman's past sexual history be an indicator of her making a false allegation?

Sigh. Back to the gardening for me.

[scallopsrgreat]

You keep saying you are a feminist wordfactory, yet nothing you say seems to indicate that. There seems to be a lot of that on this thread If you were a feminist then you wouldn't be prioritising a very very few women lying over the thousands and thousands of men who lie. You would understand the dynamic going on there and how men have used women's "untrustworthiness" against them for centuries. You would understand how it benefits rapists to have the focus taken away from their actions and on to the actions of their victims or other women.

And no-one has said that they witnesses have to be subject to rigorous scrutiny, we are just questioning what sexual history has to do with that.

[Norudeshitrequired]

Yet because I do not see hysteria in the newspapers every time there's confusion over whether someone who can be shown in court to get into fights sometimes claims someone else assaulted them, I can't help wondering if there's some sort of unconscious double standard when it comes to rape.

I don't think its a double standard as such from a reporting point of view. I think the reporting difference is in the fact that rape is a heinous crime, often people accused of committing rape are shunned by their neighbours, local community etc and beaten in prison for being a 'nonce'. Somebody accused of assault isn't viewed in quite the same negative manner. However, I am aware of many cases where somebody accused of assault has gone down the self defence route and the victims previous history if aggression has been questioned in court. Just because it isn't in the newspapers doesn't mean it isn't happening everyday.

[Norudeshitrequired]

People claim innocence of a whole variety of offences on a regular basis. A defendant receives approximately one third off his sentence for pleading guilty at the first available opportunity so if the defence has no case and is highly likely to result in a conviction then the defence solicitor will advise his client accordingly and the advise should be that 'the evidence is overwhelming and if found guilty after trial then you will be looking at a much higher sentence'.
Obviously some defendants will think they are capable of winning any case and will reject the solicitors advice and go to trial regardless and take the risk.
However, most people will only take the risk of a higher sentence if they think that they have a reasonable chance of acquittal.
Therefore it stands to some reason that most of the cases going to trial have some air of doubt and some chance of acquittal (of course there are the exceptions of people who think they are invincible). It is therefore the role of the court to ensure that the case is properly tested and that the defence and prosecution should both test the witnesses accordingly.
It might not be nice, but it is the way it is and I don't see a reasonable alternative way of testing witnesses reliability.
I agree that a woman who is sexually promiscuous shouldn't be assumed to be a pathological liar who is making false accusations, but the jury needs to be able to decide that to be true or not.

[wordfactory]

scalops you do not get to tell me that I am not a feminist! You do not get to belittle other women and their opinions! This is a highly contoversial area that the vast vast majority of women lawyers struggle with. But perhaps that's because we are just silly little women who can't possibly be feminists.

[OhDearNigel]

Yoni, past convictions can be brought up in evidence if they are very relevant. For example i had a domestic rape case where a previous, collapsed domestic rape trial on his ex wife was used as bad character. Bad character is governed by tight restrictions and the side that wants to use it has to apply to the court.

[BasilBabyEater]

Slightly tangential but I've always thought it was highly illogical that a woman who is promiscuous, should be thought less likely to be a reliable witness about rape, than a "virtuous" woman.

If you view a promiscuous woman as someone who isn't fussy who she goes to bed with, then surely you should see her complaint of rape as being more likely to be true than that of the Mrs Virtue? After all, if she's usually perfectly happy to shag most blokes she meets, if she's so annoyed about shagging this one that she's gone and reported it as rape, then chances are she's telling the truth, no? Because after all, if it was just a bit of common or garden shagging, she wouldn't have noticed it, the fact that she has, makes it likely that it was rape.

[wordfactory]

A woman's previous sexual history cannot be brought up easly in a rape trial. An application has to be made the judge in private. As it would have to be to bring up a defendants past convictions. Judges don't take the applications lightly. You have to have to show good reason. It is certainly not an application made in every case and every application made is certainly not successful.

[scallopsrgreat]

I am not telling you whether you can be a feminist. I am certainly not belittling you. I am saying what you are posting here is not indicating you are a feminist. You can be and call yourself whatever you want.

[wordfactory]

I agree basil and in the case I mentioned earlier it was not the victim's promiscuity that brought about the application but the fact that she kept asserting she wasn't. If she had said nothing on the issue then there would have been no basis for an application IMVHO.

[wordfactory]

scalop how very big of you!

[scallopsrgreat]

Indeed. I'm generous like that!

[larrygrylls]

A lot of rape cases are essentially tests of credibility between the accuser and defendant. In a case in which I was a juror of a knifepoint rape, previous bladed offences were admitted into evidence. They clearly challenged the defendant's assertion of being a "peaceful" man.

If an accuser's case were based on it being unusual, for instance, of going home with strangers but the defence could prove a history of rand encounters, it would go to her credibility.

[BasilBabyEater]

But it would go to her credibility if she told the truth as well, because promiscuous women who have lots of one night stands, are not supposed to be rape-able.

Damned if you do...

[BasilBabyEater]

Sorry, x-posted with Buffy

[wordfactory]

For sure that's true Buffy.

In fact, I think it's common among prosecution witnesses in all sorts of cases to over egg the pudding, based on what they think sounds more credible.

This is often the cause of difficulties in securing convictions across the board. Because once a witness is found to have lied about one thing...

I think the police and CPS are getting much better inthis area though.

[scallopsrgreat]

"why might a women wish to construct a defence based upon her "sexual good character"?" Isn't this part of the problem - she isn't the one on trial? She shouldn't have to construct a defence. She is a witness.

And I don't think someone's possible violent history is the same as their sexual history. The latter is far more personal, invasive and open to interpretation.

Agree with your reasons why a woman might lie about her sexual history Buffy/Basil.

[scallopsrgreat]

There is a thread in Relationships at the moment which is explaining this. A woman is a key witness. She has no solicitor. She doesn't know what defence the man will be using until she is cross-examined in court. Effectively she is blind-sided.

The CPS are trying to change this somewhat by providing counsellors and other prefessionals for rape victims who will take them through the court process prior to them testifying.