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?

Bunny,

Her first paragraph sarcastically implies that a man displaying poor sexual matters SHOULD risk being accused of rape (the "poor lamb" statement is the key her).

Her second paragraph juxtaposes the vague statement "get a shot at justice" with the idea that only a tiny amount of men are unfairly accused. So, what is she implying other than what I stated?

Buffy,

"I am expressing astonishment that you are so, so concerned about the impact on the 2-3% of men accused of a crime they didn't commit compared to the impact on the 97-98% of women who accuse them of a crime they DID commit."

This is a complete straw man. Where on earth did I say I was MORE concerned with the 2-3% than the 97-98%. I am not suggesting the law needs to be moved in the other direction and I have actually been involved in a rape trial resulting in conviction. This thread was about whether women's previous sexual history should be brought into a trial and all I have said is that it should only be brought in should she "open the door" in her witness testimony. Otherwise, it should be left out.

I am against changing the current law as I think it is about right, coupled with sensible guidance from the judiciary.

Why am I not astonished that Larry thinks the law which leaves 85-90% of all rapes unreported and a 6% conviction rate of all reported rapes, is "about right"?

Sounds like a really effective rape law doesn't it?

I think Buffy's statement is more about how many men define rape as "poor sexual manners" and get away with it.

Buffy,

I really cannot imagine you being intimidated! Quite the reverse.

However you do keep insinuating that you really don't care about the law where men are concerned. Your rhetorical question complete with ironic italics about treating a man with impeccable fairness and justice may be preaching to the choir in this forum but shows a casual disregard for due process.

Buffy,

I do understand what you are saying and I think that you are coming from a perspective that you feel to be fair and right. However, the justice system does give far greater weight to preventing innocent people going to jail than securing convictions. That is why the bar is set so high at "beyond reasonable doubt" rather than balance of probability. Does it mean that a lot of guilty people get off? I am sure it does and it will apply more to crimes which are hard to prove, such as rape.

Buffy/Basil, what reforms do you want to see to the law with regards sexual history?

Are you saying that if a woman can be proven to be lying about her sexual history, that the defense should be prevented from doing so because this will reduce the chance of a conviction?

That isn't a change to the law.

It isn't an answer to my question, it's just something you wanted to air. Again. You've criticised previous posters for saying the current law is about right, yet you have no suggestions for how to improve it. Criticism is easy.

Larry Her first paragraph sarcastically implies that a man displaying poor sexual matters SHOULD risk being accused of rape

Let me clarify that for you then. A man who displays 'poor sexual manners' and goes on to have sex on a woman who is obviously not willing has raped that woman. A man who displays 'poor sexual manners' and nags and nags a woman into having sex with him who eventually gives in has almost certainly raped that woman.

Setting a new bar of enthusiastic consent in law would remove those quirky doubts for the sexually ill mannered and make life easier for all men and women (apart from rapists of course, who would no longer have the 'but she let me do it, m'lud, so it can't have been rape' defence, the poor lambs)

As pp have said, rape isn't about sex. It's about the level of entitlement men feel they have over women's bodies, about power and humiliation.

www.theguardian.com/commentisfree/2013/sep/26/michael-le-vell-acquittal-rape-defendants

Interesting about false reporting from today's Guardian.

grimble interesting, enlightening article. The comments section was predictably vile though

Is the defendant's previous sexual history typically investigated? I presume it must be, given the DPP was on radio 4 a while back arguing in favour of not giving anonymity to rape accused on the basis that rapists are typically serial offenders. It must be absolutely relevant to look thoroughly at the accused's past sexual behaviour as if he has a history of being sexually coercive then he is more likely to have committed the crime.

or is that not allowed?

or is that not allowed?

an application can be made by the prosecution to disclose that information and the judge makes the decision on whether it should be disclosed. its the same as the defence making an application to disclose the witnesses history.

Do we know what criteria the judge uses to decide that it can be disclosed?

I presume that the criteria would be similar?

So the victim/witness cannot have their past sexual history brought up unless they make reference to it themselves?

Similarly, if the defendant makes any reference to their past sexual history then it can be examined?

Not a lawyer. Would like to hear if that is the case.

Notrude, it's to do with the definition of consent. Consent is defined in the Sexual Offences Act 2003 and applies to both rape and sexual assault. See definition

Someone who is very drunk may not have the capacity to consent. It is up to the court to judge whether the defendant had a reasonable belief that the witness had consented, including whether the witness had capacity to do so. The conviction of Ched Evans was partly based on this, that it was obvious his victim couldn't walk properly etc because

...of her alcohol consumption.

So if both a man and a woman were drunk and both complained afterwards that they did not consent to the other's actions, either case could be taken forward, as I understand it.

I don't know where you are getting your links from but feel free to post them if you want.

yoni the decision to disclose is made on a case by case basis. Which IMVHO is as it should be.

The onus is the applicant to show need. The presumption is against disclosure. There is some assistance in case law for a judge hearing applications. I can't link right now as not in my study. Apologies.