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, me too - the starting point of presuming there is a very good chance that the victim is lying.

With a crime that so rarely has witnesses or any physical evidence available, it's hugely problematic. A woman's word is often the only evidence and if that's by default questionable then proving guilt "beyond reasonable doubt" is near impossible.

Who said anything about the man being gay? Some straight men indulge in anal penetration with female partners wearing dildos.

I don't get this. It still implies that there are 'degrees' of assault, that the victim can be held partly responsible for what happened to them if they are deemed to have 'led on' the perpetrator. To have asked for it in some way.

It's not about whether the perpetrator was led on, it's about the defence and prosecution trying to establish who is telling the truth - was the person forced or were they a willing participant. Only the two people who were involved at the time know the actual truth so anything deemed relevant to establish the truth can be applied for disclosure to the jury.

rude deemed relevant is what I think we disagree on.

Whether a woman is promiscuous or if she is a virgin is completely irrelavent when it comes to deciding the guilt of her rapist.

The victim having a varied and busy sex life doesn't make a rapist any more or any less guilty. Rape and sex are very different things.

See for me, with my legal hat on, it's not so much that a victim is considered a liar, but simply that in any case where there is little corroboration, one person's word against another person's must always be treated with caution.

So for example, if I said you stole my phone and there was no evidence whatsoever that you had done so, other than my word, a jury would be instructed to proceed with caution.

Obviously, rape is one offence where cases often typically do hang on one person's word against another. So there is always going to be an amount of due caution.

As for the male rape analogy, I think a better one would be a male on male rape where the defendant claims consent. If the victim says nothing of his sex life then it should not be relevant, but if he states he is not gay, then the defendant is allowed to make an application to raise evidence to the contrary.

Buffy a past enjoyable and active sex life wouldn't be deemed relevant. It has to go to the heart of what the parties are saying about this case.

Yes, the victim may lie because he felt he had to. But that would still be a lie. Misleading the court. Committing perjury.

We can't allow lies to go unchallenged because we understand they may be made as a result of societal attitudes.

That's like the government eroding habeus corpus to stamp out terrorism. The end doesn't justify the means.

I do think there's a case for saying that applications to admit sexual history should be considered highly unusual. That the burden on the defence be tightened in this regard. What we need are some CofA cases!!

The problem of rape trials where consensual/non-consensual is the core argument boils down to its adversarial nature and the wording of the law. The prosector has to prove that something didn't happen i.e. that the defendant didn't have a reasonable belief of consent. If the defendant had to answer the question "how did you gain consent?" posed by an inquisitorial judge, then previous history would be irrelevant, or at least would be if rape myths were less prevalent in society (as they impact on the "reasonable" bit).

That said, I have not attended a rape trial so perhaps I am mistaken and it does happen. If it already does, it doesn't get reported. Which is another issue, of course.

The other thing that bothers me is that the crime being prosecuted is rape at one point in time. Did the defendant penetrate the witness with his penis without reasonable belief of consent?

What has the previous sexual history got to do with ascertaining belief unless they see a woman who has had a number of sexual partners as owing them a shag? What is stopping them ensuring enthusiastc participation? Are so many people in this country having such shit/rapey sex lives that they can't discern between said enthusiastic particpation and rape when on a jury?

I am constantly baffled at the amount of discussion around this.

If a boxer gets punched out of nowhere when out on a Saturday night with his mates, the fact that he spars in training and fights for cash every few months means nothing in the context of that one incident. I can't believe that anyone would think otherwise. Even if he said "come on, have a go", his attacker would possibly still be at fault, because you can't consent to GBH (R v Brown).

I don't know, Buffy. But the prosection has to make the case - that's the basis of our system. So, as far as I understand, the prosection has to prove they didn't. The accused doesn't have to say anything. Perhaps posters with legal knowledge can clarify.

If a boxer gets punched out of nowhere when out on a Saturday night with his mates, the fact that he spars in training and fights for cash every few months means nothing in the context of that one incident. I can't believe that anyone would think otherwise. Even if he said "come on, have a go", his attacker would possibly still be at fault, because you can't consent to GBH (R v Brown).

But if the accused argues that the boxer punched him first / threw a punch but missed due to intoxication then the jury would have to ascertain who was being truthful and whether the accused acted in self defence. The boxer simply saying I was minding my own business would have to be contested by the defence if the accused says that things happened differently.

"Are so many people in this country having such shit/rapey sex lives that they can't discern between said enthusiastic particpation and rape when on a jury?"

Yes, sadly.

And sticking your penis into someone without their consent is like self-defence because...?

The defendant could point out that the injuries the victim has is from a recent boxing match or from training. Thereby making the fact the man is a boxer relevant to the case. However your scenario is a little different as there would be many witnesses.

Her exprience would only be brought up if it's relevant to the case and generally to point out a lie.

The analogy I was making was about history, not about the "event" itself.

A lie about what? Just the fact that she lied, like about getting a 2:1 rather than a 2:2 on a CV? Would that mean she lied about the incident in question? Why does a lie about matters sexual mean she is lying about the incident anyway?

Oh, I geddit. She's a witness, so it's about proving the witness unreliable. Oh, for abandoning our current adverserial system for rape trials. Ascertain the truth (beyond reasonable doubt), rather than play courtroom games with rape-myth steeped juries that make the reasonable doubt greater than it sould be.

Oh, and all of those men that get stuck in on these tyes of threads - I'm not going to give you any tips on avoiding a rape charge, but ensuring enthusiastic consent and not shagging drunk/drugged women or those in mental crisis seem to be fairly sensible moves through the current sexual zeitgeist. Revolutionary, I know.

Debris you are correct.

It is for the prosecution to prove guilt beyond reasonable doubt. This is the central plank of the CJS.

The defnedant does not even have to raise a defence. He doesn't have to prove anyhting.

Insisting that a defendant in a rape case has to prove consent, destroys this central plank. And even suggesting that he has to at least give evidence about it, destroys the right to silence.