Comments on: What did she expect? http://crookedtimber.org/2003/10/13/what-did-she-expect/ Out of the crooked timber of humanity, no straight thing was ever made Thu, 24 May 2012 16:15:24 +0000 hourly 1 http://wordpress.org/?v=3.3.2 By: Ruth http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5892 Ruth Wed, 15 Oct 2003 18:12:35 +0000 http://crookedtimber.org/wp/?p=428#comment-5892 I'm going to make my last point first, because my note ended up being kind of long. Yes, rape can be a very difficult crime for a jury to weigh in on. But victims' sexual histories are not disallowed simply to make jurors' lives more difficult. They're barred because said histories have all too often been used not to help people make a reasonable assessment of the probablilty of consent, but rather to smear the victim's character. Evidence of sexual "promiscuity" still makes a woman look unsavory, plain and simple. Yes, by now, having had sex with a few boyfriends is considered normal by the majority of America (although still not everyone) -- but once you start introducing group sex, one-night stands, or anything else that sounds vaguely kinky or "easy," this serves not merely to call a victim's specific testimony about consent into doubt, but to cast aspersions on her character as a whole. After all, what she's done in the past is in all likelihood not only immoral, but also illegal (depending on the state), so who's she to go casting stones? Then, to address Pio's point: first of all, you seem to have misunderstood my comment. I wasn't positing that Bill Gates was accused of robbing someone, but rather that he was accusing someone of robbing him. This makes more sense, doesn't it? Secondly, I do believe this analogy, or something similar, is not unreasonable. Strong-arm robbery often takes place without other witnesses around: the point, for the robber, is not to get caught, and minimizing exposure helps. Robbers who are caught are sometimes convicted due to eyewitness testimony, and sometimes due to evidence that a) shows they were on the scene and b) shows that they are in possession of the victim's belongings. There's an inherent assumption in the prosecution of property crimes that if the suspect has the victim's stuff, and the victim says he took it, then he's probably guilty. No matter how much money the victim regularly gives to charity or to panhandlers on the street -- even to the suspect, who may have panhandled in the past --- this isn't the kind of behavior that gets introduced as evidence. If you want to connect this to the robbing-a-store concept proposed above, imagine a store owner who regularly takes pity on indigent customers and gives them small food items from her shelves. Does this mean that anyone is free to walk in and shoplift? No. And if a thief is caught on videotape taking something from the store, but he says the shopkeeper gave it to him, are juries likely to belive him? For cases of rape, while you're correct that the victim's word is often the only evidence that a crime has occured, it's not the only evidence that *sex* has occures. For that, we can get the same kinds of corroborating evidence that is introduced in robbery cases. The accused was on the scene: witnesses saw him; he left physical evidence. Semen, blood, and other physical evidence markes him as clearly having had sexual contact with the victim (a parallel to the robber having the victim's wallet, or the shoplifter having the stolen goods). What makes sex rape is lack of consent, but people are much more likely to be wishy washy about assessing what "consent" means for sex than they are for the transfer of money or property. I’m going to make my last point first, because my note ended up being kind of long. Yes, rape can be a very difficult crime for a jury to weigh in on. But victims’ sexual histories are not disallowed simply to make jurors’ lives more difficult. They’re barred because said histories have all too often been used not to help people make a reasonable assessment of the probablilty of consent, but rather to smear the victim’s character. Evidence of sexual “promiscuity” still makes a woman look unsavory, plain and simple. Yes, by now, having had sex with a few boyfriends is considered normal by the majority of America (although still not everyone)—but once you start introducing group sex, one-night stands, or anything else that sounds vaguely kinky or “easy,” this serves not merely to call a victim’s specific testimony about consent into doubt, but to cast aspersions on her character as a whole. After all, what she’s done in the past is in all likelihood not only immoral, but also illegal (depending on the state), so who’s she to go casting stones? Then, to address Pio’s point: first of all, you seem to have misunderstood my comment. I wasn’t positing that Bill Gates was accused of robbing someone, but rather that he was accusing someone of robbing him. This makes more sense, doesn’t it? Secondly, I do believe this analogy, or something similar, is not unreasonable. Strong-arm robbery often takes place without other witnesses around: the point, for the robber, is not to get caught, and minimizing exposure helps. Robbers who are caught are sometimes convicted due to eyewitness testimony, and sometimes due to evidence that a) shows they were on the scene and b) shows that they are in possession of the victim’s belongings. There’s an inherent assumption in the prosecution of property crimes that if the suspect has the victim’s stuff, and the victim says he took it, then he’s probably guilty. No matter how much money the victim regularly gives to charity or to panhandlers on the street—even to the suspect, who may have panhandled in the past—- this isn’t the kind of behavior that gets introduced as evidence. If you want to connect this to the robbing-a-store concept proposed above, imagine a store owner who regularly takes pity on indigent customers and gives them small food items from her shelves. Does this mean that anyone is free to walk in and shoplift? No. And if a thief is caught on videotape taking something from the store, but he says the shopkeeper gave it to him, are juries likely to belive him? For cases of rape, while you’re correct that the victim’s word is often the only evidence that a crime has occured, it’s not the only evidence that sex has occures. For that, we can get the same kinds of corroborating evidence that is introduced in robbery cases. The accused was on the scene: witnesses saw him; he left physical evidence. Semen, blood, and other physical evidence markes him as clearly having had sexual contact with the victim (a parallel to the robber having the victim’s wallet, or the shoplifter having the stolen goods). What makes sex rape is lack of consent, but people are much more likely to be wishy washy about assessing what “consent” means for sex than they are for the transfer of money or property.

]]> By: Barbar http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5891 Barbar Wed, 15 Oct 2003 05:27:59 +0000 http://crookedtimber.org/wp/?p=428#comment-5891 I should add: 3) Sexual history could be relevant if the accused and accuser have a history that suggests the accused couldn't be expected to think the sexual act was not consentual. I should add: 3) Sexual history could be relevant if the accused and accuser have a history that suggests the accused couldn’t be expected to think the sexual act was not consentual.

]]> By: barbar http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5890 barbar Wed, 15 Oct 2003 03:47:19 +0000 http://crookedtimber.org/wp/?p=428#comment-5890 Too Crazy, What you say actually makes sense. I imagine the counterargument is based on something like "If a girl has sex a lot, then it's harder to believe that she didn't really want it when she was 'raped,' because she's a dirty slut so anyway how could you blame the guy for thinking she had consented." I don't think Thorley will explicitly say that, though. In fact, he will call that a strawman and shake his head at you when you bring it up. Tut tut. Sexual history would be relevant, I think, if it shows that: 1) The accuser has a history of making things up, or a history of not making things up. 2) The accused has a history of raping people, or a history of not raping people. Of course this bit of evidence doesn't prove anything, but it might play a role. Too Crazy, What you say actually makes sense. I imagine the counterargument is based on something like “If a girl has sex a lot, then it’s harder to believe that she didn’t really want it when she was ‘raped,’ because she’s a dirty slut so anyway how could you blame the guy for thinking she had consented.” I don’t think Thorley will explicitly say that, though. In fact, he will call that a strawman and shake his head at you when you bring it up. Tut tut. Sexual history would be relevant, I think, if it shows that: 1) The accuser has a history of making things up, or a history of not making things up. 2) The accused has a history of raping people, or a history of not raping people. Of course this bit of evidence doesn’t prove anything, but it might play a role.

]]> By: Too crazy to be but anon http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5889 Too crazy to be but anon Wed, 15 Oct 2003 01:06:03 +0000 http://crookedtimber.org/wp/?p=428#comment-5889 Wait, why shouldn't experience be a plus for believability? I'm as likely to believe "I've had lots of kinky but consensual sex, and this wasn't consensual" than "I never have sex, and as soon as I went to visit this person, they raped me." First, statistically, most adults *have* had sex in the past, so if someone says he or she hasn't, there's a chance that they're lying. On the other hand, It's well known that men over-report and women under-report sexual experience, but this is probably unrelated to willingness to lie about being raped (which everyone underreports). Just some musings. Wait, why shouldn’t experience be a plus for believability? I’m as likely to believe “I’ve had lots of kinky but consensual sex, and this wasn’t consensual” than “I never have sex, and as soon as I went to visit this person, they raped me.” First, statistically, most adults have had sex in the past, so if someone says he or she hasn’t, there’s a chance that they’re lying. On the other hand, It’s well known that men over-report and women under-report sexual experience, but this is probably unrelated to willingness to lie about being raped (which everyone underreports). Just some musings.

]]> By: Barbar http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5888 Barbar Tue, 14 Oct 2003 19:57:13 +0000 http://crookedtimber.org/wp/?p=428#comment-5888 <i>I do think a reasonable person in trying to decide how likely it is that a woman may or may not have consented to <b>participating in an orgy or to anal intercourse</b> might take into account whether or not she had done so in the past just as a reasonable person might decide that such information may not find such information useful under the specific circumstances. Either way, it’s something a jury ought to be able to decide.</i> (emphasis added) What about vaginal sex? Why did you leave that out? I do think a reasonable person in trying to decide how likely it is that a woman may or may not have consented to participating in an orgy or to anal intercourse might take into account whether or not she had done so in the past just as a reasonable person might decide that such information may not find such information useful under the specific circumstances. Either way, it’s something a jury ought to be able to decide. (emphasis added) What about vaginal sex? Why did you leave that out?

]]> By: Thorley Winston http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5887 Thorley Winston Tue, 14 Oct 2003 18:42:03 +0000 http://crookedtimber.org/wp/?p=428#comment-5887 Andrew wrote: <blockquote> Thorley: the only time I can see that a victim’s history might be relevant is if she had made many unsubstantiated, spurious charges in the past. And even then, I’m not sure if that should be relevant or since I’m not a lawyer, if it would be admissable. </blockquote> It seems to me that it certainly is relevant and ought to be brought up to impeach a witness’ credibility if she were found to have lied in the past. Moreover I think a defense attorney ought to be able to argue and a jury ought to be able to consider the question as to why the accuser waited so long as she did to file charges. Whether or not such information makes a witness more or less credible and her charges more or less likely to be true (especially in a case with so little if any corroboration) is a question that a jury should address in its deliberations. <blockquote> But that’s not what you were saying. It’s like your store is robbed and it’s revealed that, in the past, you frequently let people in to purchase things. <p> Or, if your store doesn’t have barred windows or locks, and it is robbed. It might be said that you were unwise, and perhaps should have acted differently, but it doesn’t change the crime. </p></blockquote> No it isn’t and I think you’re missing the point by trying to make a false analogy much as the other fellow was with the specious comparison to profiling. It might help if instead of trying to make analogies, you go back and read what I actually wrote: <blockquote> If we had two cases with identical facts as in the soccer case but in one case the accuser had no history of voluntary participation in group sex but in the other case the accuser was a member of the Orgy of the Month Club, it seems to me that a jury might want to consider the accuser’s history in trying to decide (a) whether or not she was likely to be a voluntary participant and (b) whether or not the accused believed she was participating voluntarily. <p> While there is probably not a perfect correlation of “yes” or “no” responses to either scenario, a reasonable person on a jury might conclude that a woman with no history of group sex is less likely to be a voluntary participant then one who did. Either way, IMNHO a jury ought to be able to consider such information just as it can with the accused. </p></blockquote> It’s pretty clear that what I’m saying is in a case in which it is essentially “he said, she said” (no corroboration as in the soccer case, at least based on my reading of the article Chris linked) that central to the question of whether or not a rape was committed is whether or not the accuser was a voluntary participant at the time and/or whether or not the defendant(s) believed she was or was not a voluntary participant. Like it or not this is going to be a question that a jury is going to have to decide in making its finding as to the guilt or innocence of the accused. In which case they are going to have to decide what they believe was in the minds of the both the accused and his accusers. And yes, as impolitic as it may be to some, I do think a reasonable person in trying to decide how likely it is that a woman may or may not have consented to participating in an orgy or to anal intercourse might take into account whether or not she had done so in the past just as a reasonable person might decide that such information may not find such information useful under the specific circumstances. Either way, it’s something a jury ought to be able to decide. <blockquote> You said that if a woman had participated in an orgy it would make her accusations of assault less credible? Really? </blockquote> Nope, I said that a reasonable person might take that into account when deciding whether or not she was a voluntary participant or the accused might have thought she was a voluntary participant. Or they might not, either way a jury ought to be able decide that and a defense attorney should not be prohibited from trying to argue that she was a voluntary participant and let the jury decide how it weighs based on the other facts of the case. Andrew wrote:
Thorley: the only time I can see that a victim’s history might be relevant is if she had made many unsubstantiated, spurious charges in the past. And even then, I’m not sure if that should be relevant or since I’m not a lawyer, if it would be admissable.
It seems to me that it certainly is relevant and ought to be brought up to impeach a witness’ credibility if she were found to have lied in the past. Moreover I think a defense attorney ought to be able to argue and a jury ought to be able to consider the question as to why the accuser waited so long as she did to file charges. Whether or not such information makes a witness more or less credible and her charges more or less likely to be true (especially in a case with so little if any corroboration) is a question that a jury should address in its deliberations.
But that’s not what you were saying. It’s like your store is robbed and it’s revealed that, in the past, you frequently let people in to purchase things.

Or, if your store doesn’t have barred windows or locks, and it is robbed. It might be said that you were unwise, and perhaps should have acted differently, but it doesn’t change the crime.

No it isn’t and I think you’re missing the point by trying to make a false analogy much as the other fellow was with the specious comparison to profiling. It might help if instead of trying to make analogies, you go back and read what I actually wrote:
If we had two cases with identical facts as in the soccer case but in one case the accuser had no history of voluntary participation in group sex but in the other case the accuser was a member of the Orgy of the Month Club, it seems to me that a jury might want to consider the accuser’s history in trying to decide (a) whether or not she was likely to be a voluntary participant and (b) whether or not the accused believed she was participating voluntarily.

While there is probably not a perfect correlation of “yes” or “no” responses to either scenario, a reasonable person on a jury might conclude that a woman with no history of group sex is less likely to be a voluntary participant then one who did. Either way, IMNHO a jury ought to be able to consider such information just as it can with the accused.

It’s pretty clear that what I’m saying is in a case in which it is essentially “he said, she said” (no corroboration as in the soccer case, at least based on my reading of the article Chris linked) that central to the question of whether or not a rape was committed is whether or not the accuser was a voluntary participant at the time and/or whether or not the defendant(s) believed she was or was not a voluntary participant. Like it or not this is going to be a question that a jury is going to have to decide in making its finding as to the guilt or innocence of the accused. In which case they are going to have to decide what they believe was in the minds of the both the accused and his accusers. And yes, as impolitic as it may be to some, I do think a reasonable person in trying to decide how likely it is that a woman may or may not have consented to participating in an orgy or to anal intercourse might take into account whether or not she had done so in the past just as a reasonable person might decide that such information may not find such information useful under the specific circumstances. Either way, it’s something a jury ought to be able to decide.
You said that if a woman had participated in an orgy it would make her accusations of assault less credible? Really?
Nope, I said that a reasonable person might take that into account when deciding whether or not she was a voluntary participant or the accused might have thought she was a voluntary participant. Or they might not, either way a jury ought to be able decide that and a defense attorney should not be prohibited from trying to argue that she was a voluntary participant and let the jury decide how it weighs based on the other facts of the case.

]]> By: Barbar http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5886 Barbar Tue, 14 Oct 2003 15:11:41 +0000 http://crookedtimber.org/wp/?p=428#comment-5886 <i>Besides which, juries look at past behavior all of the time in evaluating a person’s credibility or state of mind. It seems only in the case in which a person is accused of a sexual-based offense that it is verbodden and then only in the case of the accuser.</i> How disingenuous. This is because some people think that the less sexual experience one has, the more credible one's charges of rape are. How could people think something so idiotic? I don't know, maybe you can help me out with that one. Besides which, juries look at past behavior all of the time in evaluating a person’s credibility or state of mind. It seems only in the case in which a person is accused of a sexual-based offense that it is verbodden and then only in the case of the accuser. How disingenuous. This is because some people think that the less sexual experience one has, the more credible one’s charges of rape are. How could people think something so idiotic? I don’t know, maybe you can help me out with that one.

]]> By: Barbar http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5885 Barbar Tue, 14 Oct 2003 15:06:23 +0000 http://crookedtimber.org/wp/?p=428#comment-5885 No really, Thorley makes a great point -- if someone has a history of consenting to sex, then their claims that a rape has occurred become less credible. And if someone has a history of participating in orgies, then their claims that they have been unwillingly gangbanged becomes less credible. See? No really, Thorley makes a great point—if someone has a history of consenting to sex, then their claims that a rape has occurred become less credible. And if someone has a history of participating in orgies, then their claims that they have been unwillingly gangbanged becomes less credible. See?

]]> By: carla http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5884 carla Tue, 14 Oct 2003 14:43:07 +0000 http://crookedtimber.org/wp/?p=428#comment-5884 I recommend that interested people head to "alas, a blog" and search out a long post and many comments by PinkDreamPoppies about rape. I haven't read the whole article, but the lightswitch comment is enough. And Andrew's right on the mark there, too. I recommend that interested people head to “alas, a blog” and search out a long post and many comments by PinkDreamPoppies about rape. I haven’t read the whole article, but the lightswitch comment is enough. And Andrew’s right on the mark there, too.

]]> By: andrew http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5883 andrew Tue, 14 Oct 2003 07:45:58 +0000 http://crookedtimber.org/wp/?p=428#comment-5883 Thorley: the only time I can see that a victim's history might be relevant is if she had made many unsubstantiated, spurious charges in the past. And even then, I'm not sure if that <i>should</i> be relevant or since I'm not a lawyer, if it would be admissable. But that's not what you were saying. It's like your store is robbed and it's revealed that, in the past, you frequently let people in to purchase things. Or, if your store doesn't have barred windows or locks, and it is robbed. It might be said that you were unwise, and perhaps should have acted differently, but it doesn't change the crime. You said that if a woman had participated in an orgy it would make her accusations of assault less credible? Really? Thorley: the only time I can see that a victim’s history might be relevant is if she had made many unsubstantiated, spurious charges in the past. And even then, I’m not sure if that should be relevant or since I’m not a lawyer, if it would be admissable. But that’s not what you were saying. It’s like your store is robbed and it’s revealed that, in the past, you frequently let people in to purchase things. Or, if your store doesn’t have barred windows or locks, and it is robbed. It might be said that you were unwise, and perhaps should have acted differently, but it doesn’t change the crime. You said that if a woman had participated in an orgy it would make her accusations of assault less credible? Really?

]]> By: Pio http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5882 Pio Tue, 14 Oct 2003 05:03:00 +0000 http://crookedtimber.org/wp/?p=428#comment-5882 Ruth: There is an obvious difference between a Gates robbery and a rape: in a rape such as this one, the only evidence that a crime has even been commited is the victim's testimony. In the rape case, it is amazingly unfair for the defense to be prevented from even addressing the main source of evidence. Again, in the Gates case, it is very doubtful Gates would ever be convicted on the evidence of a single eyewitness, so your argument is rather inapplicable. Unfortunately, rapes often occur in circumstances where the only witness and only evidence of the crime ever having been committed is the victim/accuser. While this poses all kinds of problems for the justice system, the solution is hardly to handicap the defense to the point where a fair trial is all but impossible. Ruth: There is an obvious difference between a Gates robbery and a rape: in a rape such as this one, the only evidence that a crime has even been commited is the victim’s testimony. In the rape case, it is amazingly unfair for the defense to be prevented from even addressing the main source of evidence. Again, in the Gates case, it is very doubtful Gates would ever be convicted on the evidence of a single eyewitness, so your argument is rather inapplicable. Unfortunately, rapes often occur in circumstances where the only witness and only evidence of the crime ever having been committed is the victim/accuser. While this poses all kinds of problems for the justice system, the solution is hardly to handicap the defense to the point where a fair trial is all but impossible.

]]> By: Ruth http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5881 Ruth Tue, 14 Oct 2003 01:18:15 +0000 http://crookedtimber.org/wp/?p=428#comment-5881 Well, even if we're talking only about a specific individual's past behaviour, there are still lots of problems with introducing it in court as a form of evidence. For example, consider this parallel: Bill Gates is a noted philanthropist. Does this mean that he would be unable to prove a case of robbery against him? Sex is not the only activity that many people pursue for pleasure but that becomes distinctly unpleasurable if one is forced to indulge against one's will. Well, even if we’re talking only about a specific individual’s past behaviour, there are still lots of problems with introducing it in court as a form of evidence. For example, consider this parallel: Bill Gates is a noted philanthropist. Does this mean that he would be unable to prove a case of robbery against him? Sex is not the only activity that many people pursue for pleasure but that becomes distinctly unpleasurable if one is forced to indulge against one’s will.

]]> By: Sindelar http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5880 Sindelar Mon, 13 Oct 2003 21:44:30 +0000 http://crookedtimber.org/wp/?p=428#comment-5880 I believe we are talking about probabilistic reasoning, which is not the same as the criteria of beyond reasonable doubt that juries are meant to be making their decisions on the basis of I believe we are talking about probabilistic reasoning, which is not the same as the criteria of beyond reasonable doubt that juries are meant to be making their decisions on the basis of

]]> By: Thorley Winston http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5879 Thorley Winston Mon, 13 Oct 2003 21:30:04 +0000 http://crookedtimber.org/wp/?p=428#comment-5879 <blockquote> I am not in favour of deducing a person’s motivation from past actions. that kind of probabilistic reasoning will also support race-profiling: if I am a black defendant and it is known that a) black people commit more crime and that b) I live in an area where crime is committed, I am more likely to have committed that crime than a white middle-class person in a leafy suburb? </blockquote> Red herring since we are talking about behavior rather than ethnicity. Being black is not a form of “behavior” while on the other hand voluntarily participation or not in an orgy is. Besides which, juries look at past behavior all of the time in evaluating a person's credibility or state of mind. It seems only in the case in which a person is accused of a sexual-based offense that it is verbodden and then only in the case of the accuser.
I am not in favour of deducing a person’s motivation from past actions. that kind of probabilistic reasoning will also support race-profiling: if I am a black defendant and it is known that a) black people commit more crime and that b) I live in an area where crime is committed, I am more likely to have committed that crime than a white middle-class person in a leafy suburb?
Red herring since we are talking about behavior rather than ethnicity. Being black is not a form of “behavior” while on the other hand voluntarily participation or not in an orgy is. Besides which, juries look at past behavior all of the time in evaluating a person’s credibility or state of mind. It seems only in the case in which a person is accused of a sexual-based offense that it is verbodden and then only in the case of the accuser.

]]> By: Sindelar http://crookedtimber.org/2003/10/13/what-did-she-expect/comment-page-1/#comment-5878 Sindelar Mon, 13 Oct 2003 21:20:42 +0000 http://crookedtimber.org/wp/?p=428#comment-5878 I am not in favour of deducing a person's motivation from past actions. that kind of probabilistic reasoning will also support race-profiling: if I am a black defendant and it is known that a) black people commit more crime and that b) I live in an area where crime is committed, I am more likely to have committed that crime than a white middle-class person in a leafy suburb? I am not in favour of deducing a person’s motivation from past actions. that kind of probabilistic reasoning will also support race-profiling: if I am a black defendant and it is known that a) black people commit more crime and that b) I live in an area where crime is committed, I am more likely to have committed that crime than a white middle-class person in a leafy suburb?

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