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?

[GermanGirlinLDN]

I can not understand why it would matter in any way. Rape is rape whether I slept with one men or with 100.

[wordfactory]

german it wouldn't be considered relevant usually.

[larrygrylls]

Word,

I think that you have made all the key points.

In reality, the bar is very high in cases that, in the main, depend on verbal testimony. The interpretation of "beyond reasonable doubt" that the judge used in the case where I was the juror was "are you sure". "Sure" is a very high bar for a lot of people as it internally implies close to 100%. These days people brought up on a diet of CSI are very wary of verbal testimony; they want people in white coats to provide forensic proof, which is almost impossible in issues involving consent. Having said that, my jury convicted despite the fact that the case was 20 years old. However, the issues were more whether it happened at all and identity, as opposed to consent. I don't think juries are "rapey", at least judged by my limited experience (half of them are women anyway, on average). They try to take their responsibilities very seriously and are guided by the judge.

[ModeratelyObvious]

Women often believe tape myths as well as men, larry.

[larrygrylls]

"I can not understand why it would matter in any way. Rape is rape whether I slept with one men or with 100."

Clearly, but I don't think anyone would try to defend a case by saying "she is a slapper, she was asking for it" these days. The trial would not last very long and would end up in a guilty verdict in less than one day.

However if the alleged victim says "I could not possibly have consented, I only met him that night and I am not like that" then she is trying to use her recent acquaintanceship as evidence of non consent. She is then opening the door to the defence to bring another witness to prove that her statement of her own likely action is untrue. As Word said above, the best thing to do is stick to the facts and not try to prosecute the case on behalf of the Crown.

[larrygrylls]

"Women often believe tape myths as well as men, larry."

Yes, but equally you get silly statements such as "oh he must be guilty, he is xx race and they don't respect women where he comes from".

Not all jury debates turn on exact analysis of evidence.

[larrygrylls]

Buffy,

Not sure that is true. The judge will take time to expand on "reasonably" to the jury. In addition, the system is (rightly in my opinion) always weighted against the prosecution. It is the fundamental basis of the legal system. It is a popular trope, particularly on this board, to say this is somehow wrong in rape cases. However, it is far harder to suggest improvements without making very specific exceptions to general criminal law for one crime or making an accusation in itself proof, something which would be an anathema for most people.

How would you change the system?

[ModeratelyObvious]

Buffy, the prosecution, not the victim, has to prove that beyond reasonable doubt. There isn't any way round that though - the crime is defined and the standard of proof is defined.

The jury may well believe the witness statement (ie the victim's statement) beyond reasonable doubt.

[ModeratelyObvious]

I think that changing that definition is a better place to start than beyond reasonable doubt, yes.

But can't the prosecution already ask what steps he took to ensure he had reasonable belief? The definition is from the 2003 Act and I think it was changed then.

My understanding is that rape cases which get to court have a conviction rate in the same ball park as other violent crimes (56% vs 63% comes to mind but could be wrong) but that many fewer actually reach court. So somehow that "reasonable belief" test is probably being applied earlier when the CPS decide what to prosecute, or when the victim decides whether to go to the police.

Does that make sense?

[Norudeshitrequired]

Consent, as it stands, seems to be the absence of a forceful "no" whereas I think it would be better if what was required was a definite "yes".

But the jury would still have to decide whether there was a definite yes if the accused says there was and the witness says there wasn't. Therefore you still need to cross examine both parties to enable the jury to be able to reach a decision.
Looks like the only sure fire way is to change the law so that a man has to carry around a contract and get the woman to sign it prior to sexual contact. Then you might have the argument that she was forcibly co-erced into signing it or that she changed her mind after signing it.
It really doesn't matter whether the change the law or not because there will still be disputes about he actual sequence of events where a woman says she was raped and the man says it was consensual.

[ModeratelyObvious]

Norude, my impression is that not many cases like that reach court.

[ModeratelyObvious]

That's the trouble, Buffy, there never is a comparison because the exact same act can be "harmful" or not depending on consent. No one could reasonably believe that breaking legs was ok whatever the context.

[wordfactory]

I think we start to mess around with the burden of proof at our peril.

Once we begin to ask a jury to accept what the prosecution put to them, and make it the resonsibility of the defendant to disprove it, we have a very different system that places much more power in the hands of the police and the authorities.

We've protected our CJS from endless government onslaughts, let's not rip it up ourselves in an attempt to solve the problems associated with one offence.

[worldgonecrazy]

Consent, as it stands, seems to be the absence of a forceful "no" whereas I think it would be better if what was required was a definite "yes".

I definitely support a "yes means yes" campaign. Unfortunately, culturally, "nice" girls are supposed to put up some resistance, and we even make jokey songs and graffiti about it, i.e.. Sir Jasper and the "Oh, please do not do that."*

This places the wider problem with society, with expectations that "good" girls will put up some resistance, and it is to be expected by men that women will say no when they mean yes, just because they don't want to be thought of as easy. In an ideal world, there would never be any doubt about consent, because the reason a woman said "no" would always be because she did not consent to sex, and never because there is a societal expectation that there should be some resistance from "nice girls".

• a suggested alternative:
  
  Oh, please do not do that
  Oh, please do not do ...
  Oh, please do not
  Oh, please do fuck off, I've already said no.

[CaptChaos]

Not sure if this makes sense, but please bear with me, I'm thinking it through.

Surely part of the problem here is that in rape and sexual assault cases the burden on the prosecution is to prove that any crime actually happened. In other violent crime cases, it's more about who committed the crime. So the concept tested in court is different and maybe this is why so very few rape reports actually make it to trial?

It does make me slightly ragey when I hear opinions which state that just because a woman has had many sexual partners, then she in some way 'invites' rape or even that she deserves it. I'm not saying that that happens in court now, but it did used to and it still happens in police interviews.

[CaptChaos]

I also agree that the assumption that 'men just can't help themselves' devalues men and women. Normal, rational, non-rapey men can help themselves. It's only rapists who 'help themselves', and even then it's a conscious decision.

We do need to look at the whole concept of consent, as PP have said. Consent as it stands is too easy to fiddle about with, tacit consent can and is still considered consent by an alarming number of people, as evidenced by people, when told of a rape asking why she didn't fight, why are there no injuries etc.

[BasilBabyEater]

Wordfactory, regarding the right to silence, it has been in effect been sort of abolished anyway.

As soon as the wording for the statement the police have to read out when they arrest someone changed, that abolished the right to silence. Yes you're still allowed to remain silent, but now the jury can read something into that silence which in the old days, they were instructed that they weren't allowed to.

I'd like to take issue with this:

"Looks like the only sure fire way is to change the law so that a man has to carry around a contract and get the woman to sign it prior to sexual contact."

This works if you see sex as something men want to get from women and aren't much bothered if women want it or not, so long as they've technically consented (in writing in this case) - ie if you see all men as rapists.

Most men don't want women to sign a contract waiving their right to bodily integrity; they want women to enthusiastically welcome and participate in sex with them. Because they're not rapists.

HTH.

[Norudeshitrequired]

Most men don't want women to sign a contract waiving their right to bodily integrity; they want women to enthusiastically welcome and participate in sex with them. Because they're not rapists.

How does a jury decide if the woman was enthusiastically welcoming at the time and didn't just regret it afterwards?
Of course if a woman said no and the man still had sex with her then it is rape. I'm just confused as to how we can expect a jury to reach a verdict on what actually happened without any cross examination when both parties are suggesting a different version of events.

[BasilBabyEater]

I don't think I suggested no cross examination Norude and I'm not sure how your last post is related to the quote you used from my last post?

[ModeratelyObvious]

And also most women don't say that sex is rape without having signed such a contract because, you know, it was sex that both parties clearly wanted.

I might give a friend a tenner for a cab,I don't have to sign a contract with her to say I'm doing it willingly and I won't sue her for theft. Because we have a conversation about it, check it's ok etc. do you also think we should have a contract then?