There’s quite “an extraordinary column in today’s Telegraph”:http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2003/10/13/do1301.xml&sSheet=/opinion/2003/10/13/ixopinion.html&secureRefresh=true&_requestid=147311 in which the ghastly Barbara Amiel, who no doubt has no more access to the evidence than any other member of the public, declares the as yet untried footballer-rape case to be of dubious merit, and opines:
bq. In the past, any woman crying rape under such factual circumstances would have had to show feeble-mindedness to warrant society’s protection. Going voluntarily up to a stranger’s room for intercourse or its preliminaries, and expecting a man to behave as a light switch that can be turned off at will, may be technically her right, but it is both biologically and logically mad.
Those following the case will know that it is suggested that the woman was attacked by a number of persons other than the one she had gone upstairs with. I’d be interested to know if Amiel’s piece amounts to contempt of court.
{ 28 comments }
Thorley Winston 10.13.03 at 5:40 pm
Actually I found the substance of what she wrote both reasonable and persuasive (I did think the use of the terms “matriarchy†and “sexual terrorism†were a bit much but I took that as colorful language for her readers). I’ll confess to not being familiar with the story of the gang rape allegations by the soccer players but have been inundated with the story of Karen Faber’s accusations against Kobe Bryant (neither of whom I’d heard of until this became a celebrity crime allegation).
She makes a rather valid point that because rape is such a serious crime and difficult to prove under many circumstances without corroboration that an innocent person can have their life destroyed by a false accusation while their accuser has his or her privacy protected. Unless we adopt a policy that neither the accuser nor the accused has their name released to the public unless or until there is a conviction, the fair thing IMNHO is to have both names (barring extreme circumstances such as when the accuser believes their life is at risk as in certain organized crime and terrorism cases) made part of the public record as opposed to just the name of the person who is supposed to be enjoying a presumption of innocence. I’m open to reasonable arguments to the contrary on this part though if someone wishes to make them.
Also I think a jury ought to be able to take into account an accuser’s past history and how long s/he waited in determining who they find more credible. This is not to suggest that if someone waits longer than 48 to go to the police she is automatically lying, but IMNHO it is not an unreasonable thing to look at in determining credibility and something that I would think a reasonable jury would consider.
Ophelia Benson 10.13.03 at 6:53 pm
Well if nothing else the column is full of surprisingly stupid remarks.
“In the 1970s, New York City was notorious for “Plato’s Retreat”, a club devoted to group sex.”
Eh? New York was unknown otherwise? That sentence might pass if you swapped Tulsa or Boise for New York, but as it is, you might as well say London is notorious for this little pub I know in Barnes.
“When you have young footballers, who are both superb athletes and entertainers, who make millions of pounds for their owners and deservedly get millions of pounds themselves, there is a natural consequence.”
‘Deservedly’ in what sense? In the sense that they earned it because lots of people pay money to watch them? Okay. But deservedly in nearly any other sense one can think of? Well, no.
“Rape is something else. No one defends it and I can’t think of a society that ever has.”
Now that is really ridiculous. Has the woman never read any Homer or Thucydides? Or a newspaper? Does the word ‘Balkans’ ring any bells? Damn near every society has not so much ‘defended’ rape as glorified it – provided it’s perpetrated on an agreed enemy. It’s a standard war tool.
So that’s the three most glaring in the first third or so of the article. Let’s see what else…
Ophelia Benson 10.13.03 at 7:08 pm
Well there’s this…
“Our society is fast becoming a matriarchy.”
Not exactly a factual error, because obviously rhetoric. But a tad bizarre.
Ophelia Benson 10.13.03 at 7:13 pm
“Going voluntarily up to a stranger’s room for intercourse or its preliminaries, and expecting a man to behave as a light switch that can be turned off at will, may be technically her right, but it is both biologically and logically mad.”
Yes but…does it also follow that agreeing to sex with one man means agreeing to sex with as many more men as enter the room? That’s a rule I hadn’t heard before!
“But then our current laws are divorced from sanity and justice. What they do show is that the matriarchy can get away with anything – which is, I suppose, the purpose of all terror.”
Terror. Right. When it’s time to up the rhetorical ante (i.e. when one has reached the end of the article and wants to close with a bang, so to speak), use the word ‘terror,’ no matter how irrelevant.
drapetomaniac 10.13.03 at 7:24 pm
I’m open to reasonable arguments to the contrary on this part though if someone wishes to make them.
How have you managed to shield yourself from encountering them? How can you just not know? It’s pretty amazing to me.
Sindelar 10.13.03 at 7:25 pm
For those unfamiliar with the case, the strict rules in the UK legal system surrounding undue prejudice and the libel laws mean that the accused cannot be named until the trial date for legal reasons, and many a UK chatroom has been closed down over the last week for speculation about the players’ identity.
As for credibility of the victim’s allegations–what on earth do people think the jury’s determination will be based on??? And does Mr. Winston really believe that a woman who likes to have sex often can’t really be raped?
When I left Canada 13 years ago, I thought I’d definitely be rid of the scourge of Ms Amiel. Unfortunately she has followed me over the Atlantic.
Thorley Winston 10.13.03 at 7:35 pm
Oh I am certain that there are reasonable arguments to the contrary (my invitation was for someone to present one not an expression of a lack of confidence in my own position), unfortunately taking a stance that if the name of the accused is made public so should the name of his or her accuser (barring the extreme cases in which someone’s life might really be endanger) or that the accuser’s history ought to be a legitimate issue for the defense to argue and for the jury to decide often instead leads to comments like:
Naturally of course I said no such thing in my previous posts. Burn strawman, burn.
J. Ellenberg 10.13.03 at 7:46 pm
[“Going voluntarily up to a stranger’s room for intercourse or its preliminaries, and expecting a man to behave as a light switch that can be turned off at will, may be technically her right, but it is both biologically and logically mad.â€
Yes but…does it also follow that agreeing to sex with one man means agreeing to sex with as many more men as enter the room?]
Ophelia, you lost me at “yes.” Sure, we men have biological imperatives; but it’s far from “mad” to suggest that we overrule them–in fact we do it dozens of times a day. What does Amiel think men are made of? If a woman wants to go to your room and drink with you, or mess around with you, but doesn’t want to have sex with you, it is simply _not that hard not to rape her_. “Expecting a man to behave as a light switch that can be turned off at will” might mean expecting the man not to be frustrated or annoyed; OK, that would too much to ask. But as far as I can tell, what Amiel is calling “mad” (and, God help me, _logically_ mad! As if a syllogism were involved!) is to expect that a man would have the ability to refrain from raping you.
If Amiel really believes men are that weak, you’d think she’d _support_ the coming matriarchy.
Sindelar 10.13.03 at 8:01 pm
well that strawman is unfortunately usually what lies behind calls for revelations about a person’s past in rape trials…
Tripp 10.13.03 at 8:28 pm
I suppose I can’t speak for all men, but I’ve had way too many experiences where I wanted sex, was declined, and managed to ‘turn off my switch.’
If the choice is necking with no sex, or no necking with no sex, take what you can get.
I think it is pretty funny having a woman tell the world what men can or cannot do. I think some guy’s been putting one over on her – ‘Baby, you don’t want me to get blue balls, do you? C’mon baby, I CAN’T stop now!’
ahem 10.13.03 at 8:37 pm
Perhaps Babs might care to go up to a man’s apartment and see whether she changes her tune. I’d support that little piece of research.
Ophelia Benson 10.13.03 at 8:54 pm
Fair point, J. Ellenberg! I suppose that was a sort of rhetorical ‘yes’ – you know, the kind of yes that means ‘I disagree with this bit too but at the moment I want to address the bit that comes after so I’ll just jump over it with a concessive “yes but”.’
Thorley Winston 10.13.03 at 9:06 pm
Maybe, maybe not. Your earlier strawman aside, trials are a matter of sorting through facts and deciding what and whom to believe. It does not seem all that unreasonable to me that in some cases the past history of the accuser could be called on to impeach her credibility or to determine her state of mind – just as the accused’s past history might be called on to impeach his credibility or establish a pattern of behavior to imply his guilt.
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.
Sindelar 10.13.03 at 9:20 pm
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?
Thorley Winston 10.13.03 at 9:30 pm
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.
Sindelar 10.13.03 at 9:44 pm
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
Ruth 10.14.03 at 1:18 am
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.
Pio 10.14.03 at 5:03 am
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.
andrew 10.14.03 at 7:45 am
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?
carla 10.14.03 at 2:43 pm
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.
Barbar 10.14.03 at 3:06 pm
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?
Barbar 10.14.03 at 3:11 pm
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.
Thorley Winston 10.14.03 at 6:42 pm
Andrew wrote:
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.
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:
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.
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.
Barbar 10.14.03 at 7:57 pm
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?
Too crazy to be but anon 10.15.03 at 1:06 am
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.
barbar 10.15.03 at 3:47 am
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.
Barbar 10.15.03 at 5:27 am
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.
Ruth 10.15.03 at 6:12 pm
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.
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