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 didn't just regret it afterwards"

Rape myth. Right there.

If I regretted giving my friend the tenner afterwards, do you think I'd report her for theft?

Women who regret sex, generally put it down to experience.

On the whole, they don't accuse the unsatisfactory sexual partner of rape.

Because women aren't hysterical mad loons, as misogynist culture would have us believe.

I expect there are a few people out there who would accuse their friend of theft when they regretted lending them a tenner. We don't hear so much of them in the media do we, probably because it isn't run by people who have a vested interest in ensuring that people can borrow tenners from their friends willy-nilly.

Basil,

"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"

Also, in the real world, not all sex is cut and dried and entails "enthusiastic" consent. There is duty sex (from both men and women) and sex for procreation. There is also drunken sex where two people end up having sex without either having actively consented and without necessarily there being a lot of enthusiasm. Most people in the above situations do not accuse the person they were with of rape or sexual assault. However, even if a very few do, the law has to try and deal with it. The majority of people would not want two people who have drunken sex together to try to press rape/sexual assault charges against one another because they had not obtained "enthusiastic" consent. So the concept of concept has to be broader than this concept of "enthusiasm". Although it is ill mannered to nag for sex, someone who agrees to sex to shut someone up is not being raped and nor should the criminal or civil law deal with this kind of situation. Equally, a man who reluctantly has sex with his wife who is ovulating and is begging him to and only just manages it has not been sexually assaulted despite his clear physical lack of enthusiasm.

The law is not there to judge manners or spy inside people's bedrooms unless sex has actually been without consent of any nature. To pretend a definition of consent is trivial and can take care of all real life situations is simplistic. If it were the case, we would not need judges to interpret the law for us. A good judge will review the alleged facts of the case and guide the jury as to the facts that they should be judging, guided by the law.

"If I regretted giving my friend the tenner afterwards, do you think I'd report her for theft?"

No you personally wouldn't but a tiny fraction of screwed up and vindictive people might. Which is why if you had accused your friend of theft, they would have a right to defend themselves in a court of law and be able to claim consent as a defence.

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.

It does, I completely agree. We can choose whether or not to rape. I choose not to, because I don't want to have sex with a woman who doesn't want to have sex with me.

Also, rape isn't about sex. It's about power, control, humiliation and fear.

Why d'you think the media don't go on about those screwed up people the way they go on about the screwed up women who make false rape allegations, Larry?

Basil,

Because rape is a serious crime and nicking £10 is not. The media is also fairly interested in the accusations made against the McCanns by the Portuguese police, and that is wending its way through a court of law as I write. I suspect false accusations of murder are pretty rare too but, as it is a serious crime, it gets a lot of coverage.

However, I take your point that the media is overly focused on a small number of false rape allegations. That does not mean an accused rapist does not deserve to be assumed innocent until proved otherwise.

Right.

And you don't think it has anything whatsoever to do with the fact that mostly, the victims of rape are women and the perpetrators are men and that men constructed a narrative which said that women were "the weaker vessel", more likely to lie, to be unreliable, to sin, to be vicious, which enabled them to rape women and be believed when they said they hadn't Larry?

You don't think there's any residue of that six to ten thousand year history of misogyny left in our media or law?

It's solely down to the seriousness of the crime and nothing to do with the likely perpetrator group vs the likely target group?

I have to jump in on this.

I get that juries find it difficult when there's not physical evidence and just one word against the other, but rape myths are a bigger problem, because the big thing about rape myths is that rapists know them too and target their victims accordingly

I know someone who was raped by a colleague after a night out. He went straight back to the work drinks and boasted about the 'great sex' so she had a text within half an hour from another colleague joking about it, thinking it was consensual. This was a rapist who knew all about the 'she was drunk then changed her mind' myth and had prepared his grounds for his 'false allegation' defense with people who were her friends and colleagues.

This is why they target drunk women, or women they know have had several sexual partners. It's because they know these women are less likely to be believed. They know juries are affected by rape myths, and it's why using a woman's sexual history in the courtroom is not the same as a history of selling things at cash converters.

And the idea that the more often a woman has alleged rape means its more likely to be a false allegation, is just plain stupid.
Just by looking at the numbers, 24 (even if more) false allegations against 80000 rapes and 1000 something convictions, it's far more likely explanation is that these poor souls have been unlucky enough that it has happened more than once.

not all sex is cut and dried

Seriously? It's not that difficult to tell the difference between a willing and unwilling partner. And if it is that difficult, then a simple question, 'Do you want to do this?'

The majority of people would not want two people who have drunken sex together to try to press rape/sexual assault charges against one another because they had not obtained "enthusiastic" consent.

And if someone is so drunk that they isn't capable of giving 'enthusiastic consent', or answering above question, then yes, it is rape.

isn't >aren't.

Sorry, retyped part of it and left the grammar incorrect.

There is also a lot of myth surrounding juries not believing women who have been promiscuous in the past. Men have been previously found guilty of raping prostitues, I don't think we can argue that a prostitute doesn't have sex with different men.
Juries are not stupid, they do have a mind of their own and are capable of reaching a considered verdict after hearing ALL of the relevant evidence. Juries are not made up of just men who have patriarchal antiquated views, they usually have a cross section of ages, sexes and class groups.

"And if someone is so drunk that they isn't capable of giving 'enthusiastic consent', or answering above question, then yes, it is rape."

And if the man is also very drunk, has he been sexually assaulted? Contrary to myth, some men can get erections even when too far gone to be able to give rational consent.

I have never argued that there isn't a right to defence, of course there is.

I'd assume there are a fair few men who have sex they regret. I never hear about that motivating them to make a sexual assault claim. Why is that?

I have never argued that there isn't a right to defence, of course there is.

I'd assume there are a fair few men who have sex they regret. I never hear about that motivating them to make a sexual assault claim. Why is that?

Larry - apparently (my understanding) if both the man and woman are drunk then only he can be charged with rape under the law as it now stands. So all this feminist shit is bollocks because there is no equality. If anyone can clarify that a woman can also be charged for raping a man too drunk to consent then I will take it back.

Basil I agree that the right to silence has been eroded, but it hasn't been removed.

A jury may infer something from silence. But often they won't. I think many people can imagine why a person might want to stay schtum at a police station.

That is a heap of difference from insisting a defendant must prove his innocence. We're talking about an entire switch of the burden, there.

A woman can be charged with sexual assault for having sex with a man too drink to consent, with that assault carrying the same sentence as rape, yes.

A man can be charged with raping a man too drunk to consent, yes.

A woman can be charged with sexually assaulting a woman too drunk to consent, yes.

Hope that's helped.

Moderately - could you post me a link or something on that to confirm that it is accurate because everything that I can find indicates that the law regarding being too drunk to consent was brought in in 2007 and only includes women who were too drunk to consent - I can't find any mention of men being too drunk.
Also - what happens if they are both too drunk to consent?

A lot of men are really invested in ensuring that they have the right to fuck women who don't really want to fuck them, without being perceived as rapists.

Buffy,

The numbers are complete conjecture. It is impossible to know how many false accusations are made and equally impossible to know how many women are raped. I believe the general consensus is that between 2 and 3% of allegations are false. That is admittedly a low number, but certainly not 24. I suspect that comes from a recent home office survey that showed that in about 18 months, there was only strong enough evidence to prosecute a woman for false allegations in 35 cases. However, in a her word against his word crime, the same caveats apply to false allegations as the rapes themselves I.E only a small subset will get to court due to lack of evidence.

The statement "giving those women a better shot at justice" is ludicrously vague. Is what you are saying that you would like to lower the burden of proof to balance of probability or even further that anyone who is accused is guilty? Personally, for any crime, regardless of who commits it, I think someone is entitled to a defence. What you are actually implying, without having the courage to state it clearly, is that you would like to imprison all men accused of rape without a trial, as the collateral damage of a mere 2-3% being imprisoned wrongly is worthwhile collateral damage to improve society. It is a view....one I and most other people would disagree with, however.

larry did she really say she would like to imprison all men accused of rape without a trial ?!

Where?

Buffy I hope you're not including me in your description.

At no point have I said I am interested in protecting rapists. What I am interested in is protecting the CJS.

Women have a lot more at stake in the CJS than ensuring we get more convictions for rape! Women need every bit as much protecting from the police and the state, as men. More actually, since IMVH the police and the state serve the patriarchy!