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SuzySteamboat
I saw a segment on The Abrams Report tonight about the gang rape by two men, aged 18 and 19, of a 16-year-old girl and realized that there hadn't been any topic created to discuss the case, so here it is. Personally, I am very disgusted by the media's - including Dan Abrams' - attitude towards the alleged victim. Here in 2004, there are still an astonishing number of people who believe that if a person has sex with 204 people, that she wants to have sex with number 205. Or that if a girl has sex with an individual 24 times, that means she consented to have sex with that person on the 25th. Or that "aspiring porn stars" cannot possibly be raped, because any time she has sex, it must have been consensual.

I can't possibly believe that people think that the circumstance that she may have given oral sex to the men the day before is relevant to whether she consented the next day to allowing them to insert a lit cigarette and a pool cue deep into her orifices. Does having sex with someone one time completely erase any possibility of them raping you because you consented that one time? Does having sex with 50 individuals mean that you're willing and able to have sex with anyone in the world?

Questions for debate:

1) Based on your observations about the media coverage of this case, do you feel there is a bias? If so, is it towards the alleged victim or towards the defendants?

2) Should an alleged rape victim's past sexual encounters play any role in the credibility of their accusation?



[SIZE=1]Note: this may be more appropriate in the media forum, I'm not sure so I put it here

Edited to add link to story: link
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Aquilla
1) Based on your observations about the media coverage of this case, do you feel there is a bias? If so, is it towards the alleged victim or towards the defendants?

2) Should an alleged rape victim's past sexual encounters play any role in the credibility of their accusation?



Whoa! This is a tough one, SuzySteamboat. I agree with the writer of the article I you cited, I sure wouldn't want to be a juror on this case. There hasn't been a whole lot of media coverage of this particular case that I've heard here in LA, although there has been some. Frankly, the Kobe Bryant case has pretty much over-shadowed it for better or worse, so I can't really answer your first question.

Your second question though is much more important I think. It gets to the heart of the rights of the accused against the rights of the accuser and there has to be a balance there somewhere I think. Just not sure where it is. To be sure, if the case hinges on a "he said - she said" kind of argument, then the sexual past of the accuser is probably something that the jury should consider.... and I really hate saying that. Rape is a viscious crime to start with and subjecting the victim to it all over again in a different way is cruel. Still though the accused does have the right to a fair trial and to bring up information and evidence on their behalf. If a woman has a sexual history of, for lack of a better term promiscuity, then that seems relevant to me. However, along with that I would include some specific directions to the jury that such a history is not in itself proof of consent and a reminder that no still means no regardless. I would also close the trial to the public when a woman's history was being discussed. Not the perfect solution to be sure, but the best I can think of right now.
Paladin Elspeth
1) Based on your observations about the media coverage of this case, do you feel there is a bias? If so, is it towards the alleged victim or towards the defendants?

Based on my very limited knowledge of the situation, I do believe that there is a bias against the alleged victim. Presumed innocent (or not complicit) should be applied to the victim as well as the defendants.


2) Should an alleged rape victim's past sexual encounters play any role in the credibility of their accusation?

Only if an alleged rapist's past sexual encounters can be included as well. But that's the problem: judges exclude "prior bad acts" when listening to a case.

No is still no--no matter if it's a hooker making the allegation of rape. If she (or he--men get raped too) indicated that she did not want to participate, and her assailant did it anyway, it is rape.

Not to mention the use of foreign objects. This is disgusting.
Cube Jockey
1) Based on your observations about the media coverage of this case, do you feel there is a bias? If so, is it towards the alleged victim or towards the defendants?

I can't say news about this case has really reached San Francisco, but then again I don't usually watch local news casts, I just get my news from internet sources and papers.

2) Should an alleged rape victim's past sexual encounters play any role in the credibility of their accusation?

That is a very tough legal question, and I definitely do not envy the jury for having to deal with it.

I believe that credibility/past sexual history of the rape victim should only be considered in certain situations.

When talking about rape, no means no, and no woman asks to be raped regardless of what she is wearing or how she acts.

However, the accused rapist has the right to use the rape victim's credibility in his defense in cases where it is a "he said, she said" type of case. I think this becomes an issue in a lot of date rape cases and cases between people that have had consensual sex in the past. I also think these are valid questions in cases like the Kobe Bryant case (now not knowing all the facts of the case that may be a bad example) where the rape victim stands to gain something by a conviction aside from peace of mind.

Unfortunately, there is no clear situation in which credibility should be an issue so you can't disallow it in some cases and allow it in others. In the interest of the defendant I would have to say that these kinds of questions can and should be raised in one's defense. I don't really like that very much, but it seems the only way to allow the defense a fair trial.

However, in this particular case... with the combination of the forensic evidence and the account of the rape I would think that credibility is irrelevant. First, this woman is not of the age to consent to sex in the first place, and secondly not many women consent to having foreign objects such as the ones described inserted into them.
GoAmerica
QUOTE(SuzySteamboat @ May 24 2004, 06:04 PM)
Should an alleged rape victim's past sexual encounters play any role in the credibility of their accusation?

Edited to add link to story: link

I didn't knw what to say for the first question but i can for the second one. Here's my answer:

I don't think past sexual encounters that were consensual have ANY bearing on this case because there is no way to link it. She was raped...that is obviously a major difference to consensual sex and i think the past history is irrelavent
Aquilla
I was addressing the question for debate in a broader sense than just this case because it's a good question in general I think. Some states like Colorado, for example, have a "Rape shield law" that prohibits an accuser's past sexual history from being an issue at a trial. Maybe we need a new thread to discuss that one, particularly since it's being challenged by the Kobe Bryant defense, but it may be applicable in this case as well. If this girl was unconscious as is suggested by the article cited by SuzySteamboat, then it may very well not be a 'he said - she said" kind of a case since she obviously couldn't have given consent to what happened to her. If she was awake however it does raise the possibility that her previous history might indicate to a jury that she was a willing participant. That doesn't get around the age of consent issue that Cube Jockey presented, but statutory rape is a less severe charge than the one these defendants are facing.
Mrs. Pigpen
I found another article here, which gives a little more information. I have never heard of this case before. It looks pretty condemning for the defense, though. I'd say there should be charges against not only the boys, but the parents as well. The house where this happened was at an assistant Sheriff's house. They were all drinking alcohol and smoking marijuana at the house party the previous night. huh.gif

QUOTE
The woman testified that the night before the alleged 2002 attack she partied with marijuana and alcohol during a July Fourth gathering at the home of one of the teens, the son of Orange County Assistant Sheriff Don Haidl.

Haidl, also a multimillionaire businessman, was home with his wife during part of the party but went to bed after meeting the teens, the woman said.

He was not home the next night when his son Gregory Haidl, 18, Keith Spann, 19 and Kyle Nachreiner, 19, allegedly assaulted her on a pool table in the Newport Beach home and videotaped the incident. 


I don't think that the girl's sexual history is relevant to this case, though I'm not surprised that the defense team would like to use it. In some other, hypothetical scenario with a consenting adult, sexual history might be relevant to a rape case.
CruisingRam
The case seems to revolve around (as much as I can gather from the story- if I am missing some information- please tell me thumbsup.gif )

1) Was it consensual
2) Was she in a state where she was able to consent/deny sex/

If so- then, the accused should certainly be able to provide statements and history of her behavior- because though rape is whenever there is a "no" and sex anyway- there is a need to establish if, in fact, there was a "no"- correct?

Then they have to establish if she was unable to to consent- and I think this has to be established first- and if I was a juror, then this is what I would want to find out first- if she was out- it is a slam dunk- they are guilty, send them to jail, time to go home.

Now- if she was awake- and on the video it appears that she is not struggling and I heard no words to the effect of "don't do this"- then her past behavior with these guys DOES become relevent- because I would not be willing to send these guys to jail if there were a chance of "buyers remorse".

Rape is a nasty business- and I deal with a huge amount of this type of stuff, but among a different population (mostly mentally ill homeless types) and it becomes very hard to seperate your emotional feelings in order to get to the truth.


That being said- I am not for rape shield laws in cases that boil down to a "he said-she said" - and also- the past of the accused should be brought up as a matter of procedure if they bring up the alleged victims past.
droop224
Rape Shield laws really burn me up!! In rape cases where there is a basic he said/she said all the womens sexual history should come into play. The logic of having rape shield laws is a violation of due process. If I am on trial of for stealing a car can I say "hey none of my past history of theft should be brought up, because what does that have to do with whether or not I stole the car on said time." And the accused man charged with rape, would anyone say that if he showed a pattern of violence with women it should not be brought in??

At issue in a rape case is whether or not a woman gave consent to having sex. Her sexual history is the equivalent of the accusers violent history.

The prosecutor will try to prove a tendecy for the accused to be violent with their past.

The defense should have the right to prove a females promiscuity with her past.
Julian
Tricky one. Clearly, it is possible for someone (and we aren't just talking about women, necessarily, though they are the majority in such cases) to maliciously accuse someone of raping them, make a mistake over the identity of the attacker (if for example it was dark at the time), and so on.

Recently a group of four British football (ok, soccer!) players were accused of gang raping a group of Afro-German women in Spain (very international). T

he case fell apart when the women, who had claimed to be businesswomen, were found to be prostitutes, one of whom had a prior record of falsely accusing some other prominent German celebrity of raping them. This doesn't mean the men did not rape them - it just means that it became impossible to prosecute them with an expectation of securing convictions. This news arose during the investigation phase, so the prosecution never happened. Had it gone to trial, innocent men could have been jailed because the history of the alleged victims would not have been admissable (I am assuming Spanish justice would do this, anyway).

And it works both ways - there are plenty of cases where a jury lets a man go, then when the reporting restrictions are lifted, it becomes clear that the man has been convicted or accused many times before of similar offences. (The recent case of the Soham child abuse murders is related - two kids died because prior case history was not made available to the relevant authorities who cleared Ian Huntley to work as a school caretaker.)

Since our justice systems presumes innocence, it's hard to see how else we could play cases like this. It does mean that probably a disproportionate number of rapists are found not guilty, or never come to trial - perhaps we should consider a different way of trying rapes cases? Maybe we should try investigatory trials to firstly establish if a rape took place and then follow the evidentiary trail to find out who did it and sentence that person then, rather than do the usual trial by jury process. Of course, this has big implications for civil liberties, and in the USA would be unconstitutional at present. Maybe a presumption of guilt might help, but this would result in the innocent being jailed rather than the guilty going free.

If anyone here is from France (Horyok?) maybe they could tell us how things work in their investigatorial?
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Vermillion
As I understand the US legal process, prior bad acts cnnot be admitted in a courtroom UNLESS they establish a pattern of behaviour. So a previous rape charge could not be brought into trial, but if the accused habitually drugs and rapes young women, and is accused with drugging and raping a young woman, that CAN be brought into evidence.

I have to say, though it may seem unfair, I do understand the reason for a Rape shield law. The legal system is set up to judge someone based on their crime, that's all. If the jury finds beyond reasonable doubt that a person is guilty of THIS crime, then they should find them guilty and be done with it. But the last thing you want is a Jury, unable to reach a firm guilty verdict, making their decision based on "yeah, but look at the nasty stuff he/she did in the past..."

That may seem more fair to some people, but it is not justice.
Lesly
Based on your observations about the media coverage of this case, do you feel there is a bias? If so, is it towards the alleged victim or towards the defendants?

Should an alleged rape victim's past sexual encounters play any role in the credibility of their accusation?


I skimmed the story before. As in Bryant's case I don't feel there is a bias towards either the defendant or the accuser.

As for the second question if a woman's promiscuous past is relevant to the case, I don't know how a virgin is more likely to tell the truth. Both stereotypes lend a chance to reaching the wrong verdict. If a man's prior convictions should not be mentioned at a rape trial, should other crimes such as petty theft, perjury, car jackings, DUIs, domestic violence, etc., be automatically barred from mentioning as well at new trials? Should news of this woman's conviction never reach the jury if she ever cries rape again?

A man's prior conviction is not used at trial because he's a slut. It is brought up because he broke a law. I don't see how female promiscuity serves as counterpoint to a criminal history.
SuzySteamboat
QUOTE
Rape Shield laws really burn me up!! In rape cases where there is a basic he said/she said all the womens sexual history should come into play. The logic of having rape shield laws is a violation of due process. If I am on trial of for stealing a car can I say "hey none of my past history of theft should be brought up, because what does that have to do with whether or not I stole the car on said time." And the accused man charged with rape, would anyone say that if he showed a pattern of violence with women it should not be brought in??


Your logic makes no sense. How does how many people a woman has had sex with in any way relate to her credibility of accusing a person of rape? I could see a relation between prior rape accusations and the current trial, but sexual history? There is no relationship. Your theft analogy is very flawed. Obviously a prior theft incident has bearing on the likelihood of the likelihood of the current theft being prosecuted. But how does a woman's sexual history have any relationship to whether the person she accuses of rape is innocent or guilty? If I've had sex 38 times with Person A, 3 times with Person B, and 80 times with Person C, how does that relate to whether Person X raped me or not?! It doesn't. Therefore, there is no need to bring my sexual history into play. Even if I've previously had sex with Person X, that still doesn't mean that on January 30, 2004, that Person X and I had consensual sex. It still could have been rape.

QUOTE
At issue in a rape case is whether or not a woman gave consent to having sex. Her sexual history is the equivalent of the accusers violent history.


Wrong. Her sexual history is a list of the people she's had sex with and the circumstances. It has nothing to do with the credibility of her claim. She could have had sex with 800 people and Joe Schmoe, number 801, could have still very well raped her. Her sexual past is completely irrelevant, UNLESS it specifically pertains to past accusations of rape.

QUOTE
The defense should have the right to prove a females promiscuity with her past.


Are you saying that "promiscuous" females can't be raped? If not, then what's the point of the defense "proving" that a female is promiscuous? Wow, she's had sex with a bunch of people... and that has what to do with whether Joe Schmoe raped her?
Vermillion
QUOTE(SuzySteamboat @ May 28 2004, 03:49 PM)
Your logic makes no sense. How does how many people a woman has had sex with in any way relate to her credibility of accusing a person of rape?  I could see a relation between prior rape accusations and the current trial, but sexual history? There is no relationship.  Your theft analogy is very flawed. Obviously a prior theft incident has bearing on the likelihood of the likelihood of the current theft being prosecuted. But how does a woman's sexual history have any relationship to whether the person she accuses of rape is innocent or guilty? If I've had sex 38 times with Person A, 3 times with Person B, and 80 times with Person C, how does that relate to whether Person X raped me or not?!

Playing Devil's Advocate a little here:

If the defence of the accused is that he never touched the victim, then there is no cause for the 'prior sexual history' to be brought up.

However, if the claim of the defence is that she consented to sex, then I could see (even though I think its still wrong personally) justification for bringing up past cases where the victim consented to sex with strangers, or liked rough intercourse, or things like that.

It is morally abhorrent, I understand, but legally, if the defence is she consented willingly then had regrets afterwards, one could see where past sexual history would have some bearing...
Lesly
QUOTE
It is morally abhorrent, I understand, but legally, if the defence is she consented willingly then had regrets afterwards, one could see where past sexual history would have some bearing...
-- Vermillion


It isn't abhorrent. It's acceptable that the defense investigates/presents evidence of the dynamic of their relationship if the accuser knows the defendant. I expect that defense to do their job. Who else the accuser had sex with and how is irrelevant to this rape charge.

You can't really apply a blanket statement to rape charges. That's what's going on here. Unfortunately there *are* women who cry rape for whatever demented reasons. Their allegations must be examined in court. However a propensity to sleep around should not be interpreted as a likelihood to rape a woman or lie about being raped. Applying blanket statements with promiscuity doesn't help the jury reach the right verdict.
Aquilla
Rape shield laws were originally put into place to end of the practice of defense attorneys intimidating the victim on the witness stand. This was a tactic that was commonly used prior to these laws and often resulted in victim refusing to testify. No victim, hard to prove a crime. It's not too difficult to understand a victim's reluctance to get up on a witness stand, under oath in front of their friends and family and neighbors and testify to the most intimate details of their lives. "How did it make you feel? Did you like it? Do you prefer this or that?" Pretty difficult questions to answer in public. A lot of victims just decided they'd been raped once, it was over, time to get on with their lives. They didn't want to get verbally raped again on the witness stand. So, generally I support rape shield laws, but I do think the judge a case like this one should have some discression on how much to allow.
Cube Jockey
QUOTE(SuzySteamboat @ May 28 2004, 08:49 AM)
Even if I've previously had sex with Person X, that still doesn't mean that on January 30, 2004, that Person X and I had consensual sex. It still could have been rape.

Yes it still could have been, if there was other forensic evidence to prove that out. Which in this trial there definitely appears to be.

However, if it was simply a "he said, she said" case and the defendant and victim had a consensual sexual history that would be relevant to the case and would go a long way towards establishing reasonable doubt.
amf
QUOTE(Aquilla @ May 28 2004, 12:16 PM)
So, generally I support rape shield laws, but I do think the judge a case like this one should have some discression on how much to allow.

I wholeheartedly agree with this sentiment. Absolutist laws -- like rape shield laws or mandatory minimum sentences -- take the "judgement" part out of being a judge. Ignoring the hue and cry over "activist judges" (as we should), judges are supposed to make judgements... on the case, on the evidence, on the admissability of evidence, on the sentence meted out, etc. If we keep tying the judges hands with rules that take the "it depends" out of a court case, we might as well put robots up on the bench instead of people.
droop224
Susy, Let me start by saying for some reason I find this debate more enjoyable than others.

Now, my logic was not flawed but your application of my logic certainly is. I thought about what you said and realize where the break down in logic comes. It comes with your reasoning of why a thief's history of stealing comes into play in a trial. You state:
QUOTE
Obviously a prior theft incident has bearing on the likelihood of the likelihood of the current theft being prosecuted.


This is incorrect and where the logic breakdown starts. If I steal 1-2-3-4-5 cars it has no bearing whatsoever on whether I stole the sixth vehicle. It neither increases nor decreases the likelihood of me actually being the one to have stolen the car. The reason why this is introduced is because it shows I have the means as well as the will to steal a car. It really in no way adds any evidence to increase the likelihood of my stealing a car. How does the fact that a person stole 5 previous increase the likelihood that that person stole the sixth?? It doesn't!!

Compare that logic to your logic:

QUOTE
But how does a woman's sexual history have any relationship to whether the person she accuses of rape is innocent or guilty? If I've had sex 38 times with Person A, 3 times with Person B, and 80 times with Person C, how does that relate to whether Person X raped me or not?! It doesn't.


hmmm.gif How similar. You are correct to assume that a woman's history has no bearing on whether or not she was raped. I agree. But that is not the way to apply my logic. Most rape cases the primary witness is the accuser. She says he raped me, he says I didn't. There really isn't any evidence.

Your idea of woman's sexual history being used is to limited and, again, wrongly applied. If a defense attorney could simply say this is the list of people she slept with starting at age 15 he simply be doing his client a disservice, IMO. It would be like he was just grasping at nothing if he just called out 800 names of previous sexual partners. However, if the panties are ripped why is it wrong for someone to bring in a previous sexual partner to say "she had me rip her clothes off before." If there are scratches on the man, is her history of scratching previous lovers not relevant?? If she just met the man or hardly knew him, why is it not appropriate to show that she has the will to have one night stands and has had them before if there are witnesses to testify to that. Just as the prosecution would have the right to show the man's history of being violent the defense can show the womens history of consensual sex. Neither has any bearing on whether a rape actually occurred. But when there are no witnesses or even if there is, both the State and defense have the right to fully cross examine the other's witnesses.

Rape shield laws are against the Constitution and violate due process. If rape shield laws are designed to protect rape victims, then the occurence of a rape must first be proved. By designating accusers as victims before the conviction of the accused you are establishing guilt before a trial which is the opposite of maintaining a citizen's innocence prior to the person charged being found guilty.

Now allow me to say that I do sympathize with the shame a woman may feel by having her sexual history exposed. But that is problem that should be dealt with through society by teaching women to be comfortable with their sexual decisions. If they want to have a one night stand they shouldn't feel like sluts. But you do not ease their discomfort by treading on the rights of people to have a fair trial. I agree that rape shield laws do increase a womans likelihood of reporting a rape, but regardless of the benefits we should not circumvent due process.
Lesly
droop224, you agree with Suzy on:

QUOTE
You are correct to assume that a woman's history has no bearing on whether or not she was raped.


Yet you say:

QUOTE
If a defense attorney could simply say this is the list of people she slept with starting at age 15 he simply be doing his client a disservice, IMO. It would be like he was just grasping at nothing if he just called out 800 names of previous sexual partners. However, if the panties are ripped why is it wrong for someone to bring in a previous sexual partner to say "she had me rip her clothes off before." If there are scratches on the man, is her history of scratching previous lovers not relevant?


If the number of previous lovers are irrelevant because a woman having sex with Joe doesn't mean she consents to sex with Bob, how is asking Joe to rip off her panties relevant to Bob doing the same? You are picking and choosing what can be admitted in court similar in scope to what the "unconstitutional" rape shield laws do.

QUOTE
This is incorrect and where the logic breakdown starts. If I steal 1-2-3-4-5 cars it has no bearing whatsoever on whether I stole the sixth vehicle. It neither increases nor decreases the likelihood of me actually being the one to have stolen the car.


Laws may vary from state to state. Maybe a legal expert can chime in but a history of DUI offenses can be presented in court. The court doesn't consider it presumed guilt or double jeopardy. Why should rape convictions be automatically left out? Would you be willing to demand the same of child sex abuse cases?
SuzySteamboat
QUOTE
Now, my logic was not flawed but your application of my logic certainly is.  I thought about what you said and realize where the break down in logic comes.  It comes with your reasoning of why a thief's history of stealing comes into play in a trial.  You state:
QUOTE
Obviously a prior theft incident has bearing on the likelihood of the likelihood of the current theft being prosecuted.


This is incorrect and where the logic breakdown starts. If I steal 1-2-3-4-5 cars it has no bearing whatsoever on whether I stole the sixth vehicle. It neither increases nor decreases the likelihood of me actually being the one to have stolen the car. The reason why this is introduced is because it shows I have the means as well as the will to steal a car. It really in no way adds any evidence to increase the likelihood of my stealing a car. How does the fact that a person stole 5 previous increase the likelihood that that person stole the sixth?? It doesn't!!


The logic is not flawed, it sets a precedence of sorts. It makes sense to consider (among other things) when prosecuting an individual, if they're committed the act before. If a person has raped several individuals, it seems a more likely that he raped another as opposed to a person with no criminal sexual past. It doesn't mean that he did, but it does make it a little more likely.

Yes, the two events are independent of one another, but logically it still makes sense to take it into account when determining guilt or innocence.

QUOTE
QUOTE
But how does a woman's sexual history have any relationship to whether the person she accuses of rape is innocent or guilty? If I've had sex 38 times with Person A, 3 times with Person B, and 80 times with Person C, how does that relate to whether Person X raped me or not?! It doesn't.


Your idea of woman's sexual history being used is to limited and, again, wrongly applied. If a defense attorney could simply say this is the list of people she slept with starting at age 15 he simply be doing his client a disservice, IMO. It would be like he was just grasping at nothing if he just called out 800 names of previous sexual partners. However, if the panties are ripped why is it wrong for someone to bring in a previous sexual partner to say "she had me rip her clothes off before." If there are scratches on the man, is her history of scratching previous lovers not relevant?? If she just met the man or hardly knew him, why is it not appropriate to show that she has the will to have one night stands and has had them before if there are witnesses to testify to that. Just as the prosecution would have the right to show the man's history of being violent the defense can show the womens history of consensual sex. Neither has any bearing on whether a rape actually occurred. But when there are no witnesses or even if there is, both the State and defense have the right to fully cross examine the other's witnesses.


How does a history of consensual sex in any way relate to an instance of non-consensual sex? They're two completely different animals. I fail to see the relationship. The only way you could possibly use an alleged victim's sexual past is if she had been raped before, giving you something to compare the current accusations against! You cannot compare how someone acts during consensual sex and non-consensual sex. I'm going to need some better examples than the scratching. A person accidentally scratches a lover during intercourse = a person clawing her attacker? I don't think so.

The only thing that the defense should concern itself with in an alleged victim's past is if she's previously brought an allegation of rape against an individual and it turned out to be false. If anything, this is something that should be excepted in the rape shield laws. But to do away with them altogether, when much of society is all too eager to label females who have sex? I don't think so.

QUOTE
Rape shield laws are against the Constitution and violate due process. If rape shield laws are designed to protect rape victims, then the occurence of a rape must first be proved.  By designating accusers as victims before the conviction of the accused you are establishing guilt before a trial which is the opposite of maintaining a citizen's innocence prior to the person charged being found guilty.


Please tell me how not allowing the defense to use irrelevant sexual history about the accuser designates the accuser a "victim."

QUOTE
Now allow me to say that I do sympathize with the shame a woman may feel by having her sexual history exposed.  But that is problem that should be dealt with through society by teaching women to be comfortable with their sexual decisions.  If they want to have a one night stand they shouldn't feel like sluts.  But you do not ease their discomfort by treading on the rights of people to have a fair trial.  I agree that rape shield laws do increase a womans likelihood of reporting a rape, but regardless of the benefits we should not circumvent due process.


Rape shield laws are not designed to change society, they're designed to help rape victims cope with the current one. How's about creating that society first, and then taking away the rape shield laws? wink.gif

I understand your point as well - if a person has a history of, I don't know, making donkey sounds during sex, and she accuses one of her lovers of raping her but admits she made a donkey sound... well I can see why the defense would need to bring up that history of making donkey noises. And not being able to would indeed be unfair. So, I don't know... maybe the laws should be changed so that anything the defense wishes to bring up about the accuser's sexual history would first have to be introduced to the judge for relevance?
Aquilla
QUOTE
Laws may vary from state to state. Maybe a legal expert can chime in but a history of DUI offenses can be presented in court. The court doesn't consider it presumed guilt or double jeopardy. Why should rape convictions be automatically left out? Would you be willing to demand the same of child sex abuse cases?


Not a legal expert by any means, but are you sure about this? I thought the only time a defendant's prior record (other than to show a pattern or MO) was brought into court was during the sentencing phase. Not the trial phase. The idea being that just because this person did this then, it doesn't mean they did this now.
Cube Jockey
QUOTE(SuzySteamboat @ May 28 2004, 01:43 PM)
The only thing that the defense should concern itself with in an alleged victim's past is if she's previously brought an allegation of rape against an individual and it turned out to be false.

There are circumstances where that is false, specifically in cases where the victim and the defendant are/were in a consensual sexual relationship.

This is of course sets other evidence aside, but how exactly can one prove beyond a reasonable doubt that a rape occurred when the two parties have engaged in consensual sex before? Should the jury take the word of the woman simply because she is a woman? Doesn't sound like justice to me.
Lesly
QUOTE
I thought the only time a defendant's prior record (other than to show a pattern or MO) was brought into court was during the sentencing phase. Not the trial phase. The idea being that just because this person did this then, it doesn't mean they did this now.
-- Aquilla


You may be right. I can't find anything in FindLawyer... er, FindLaw. Prior convictions can be used by the judge during sentencing phase but prior convictions/behavior may not be admissible evidence. =/ I did find this on questia.com for clarification, Evaluating Rape Shield Laws:

QUOTE
During the 1970s, feminist reformers and law enforcement officials spearheaded an extensive array of substantive and evidentiary rape law reforms. 1 Among the evidentiary reforms was the passage of rape shield statutes, now in place in 49 states, the Federal government, and the military. 2 These laws are meant to exclude from consideration at trial evidence of the victim's past sexual conduct. The purposes of doing this are threefold: to protect the rape victim from humiliating and intimidating cross-examination about her sexual conduct; to prevent judges and juries from being prejudiced by sexual history evidence that might have little probative value; and to encourage the reporting of rape by making the victim's in-court experience less grueling and degrading. 3

Recent studies of the impact of rape shield legislation conclude that its value has been largely "symbolic." 4 I take this to be a euphemism meaning that the three purposes of rape shield laws have not been achieved. A survey of the legal and social scientific literature on rape victims and the criminal justice system bears this out. 5 The question of this chapter is, "Why?" In the next section, I give additional background on rape shield statutes. The subsequent analysis identifies three kinds of reasons why shield laws continue to fail rape victims: loopholes in the laws themselves, the unequal power dynamics of cross-examination, and the persistence of myths that are prejudicial to rape victims.
SuzySteamboat
QUOTE(Cube Jockey @ May 28 2004, 05:05 PM)
QUOTE(SuzySteamboat @ May 28 2004, 01:43 PM)
The only thing that the defense should concern itself with in an alleged victim's past is if she's previously brought an allegation of rape against an individual and it turned out to be false.

There are circumstances where that is false, specifically in cases where the victim and the defendant are/were in a consensual sexual relationship.

This is of course sets other evidence aside, but how exactly can one prove beyond a reasonable doubt that a rape occurred when the two parties have engaged in consensual sex before? Should the jury take the word of the woman simply because she is a woman? Doesn't sound like justice to me.

Cube Jockey, I fail to see how a previous relationship between the accuser and defendant relates to if the accuser raped the defendant or not. No one here has suggested that the jury just take the word of the woman because she is a woman, so I have no idea where you got that idea from or where you were going with it. No one in this thread, in any way, shape, or form, has taken to sexist generalizations and insults, so please don't turn this into a thread of males versus females.

The way you make it sound, there shouldn't be a rape charge brought against anyone unless there is videotaped evidence with cops loitering in the background wacko.gif And who cares if the defendant and the accuser had a previous relationship? That's irrelevant to whether the defendant raped the accuser! If anything, it only strengthens the accuser's case, because in approximately 75% of all rapes, the victim knows the attacker.

Source
Azure-Citizen
As Lesly indicated, laws do vary from state to state. Sometimes evidence of prior sexual assaults is admissible and sometimes it is not. State law is based on statutes and established case law. Rather than trying to pick a given State as an example and look at the reasoning behind the rules governing admissibility of prior sexual assaults, it might help to look at the Federal Rules of Evidence and gain an understanding of some of the legal reasoning involved. First read Rules 402 and 404, then look at Rule 413, which covers admissibility of evidence in criminal trials that the accused has committed prior sexual assaults. You can also check out Rule 412, which governs inadmissibility of a victim's prior sexual behavior. Note that Rule 415 makes Rule 413 applicable to civil cases. The referenced website has a "notes" link beneath the text of each rule that you can follow for additional background information.

Almost all States have Rape-Shield laws in one form or another (49 out of 50). It continues to be a controversial issue. Rule 413 wasn't created until 1995 and Rule 412 underwent major amendments in 1994.
Cube Jockey
QUOTE(SuzySteamboat @ May 28 2004, 04:44 PM)
Cube Jockey, I fail to see how a previous relationship between the accuser and defendant relates to if the accuser raped the defendant or not. No one here has suggested that the jury just take the word of the woman because she is a woman, so I have no idea where you got that idea from or where you were going with it.

It appears I might not have stated myself clearly enough. My point was that past sexual history between the accused and the victim is relevant.

The source you cited speaks of "acquaintance" rapes. This source defines what that means. This section is important:

QUOTE
There is considerable debate as to what constitutes proper and complete consent in a sexual relationship. How explicit consent should be, how frequently it needs to be established, and what constitutes diminished capacity (usually due to drugs or alcohol) are all subjects of some disagreement. These debates take place both on moral and ethical grounds, and as a legal issue, since rape can only be convicted as a crime with intent, and the erroneous belief of consent is a common defense.


Therefore past sexual history between the two parties is relevant, if you knew that the victim had consented to sex multiple times in the past with that person, wouldn't that put reasonable doubt in your mind that consent was not given during the instance in question?
SuzySteamboat
QUOTE
Therefore past sexual history between the two parties is relevant, if you knew that the victim had consented to sex multiple times in the past with that person, wouldn't that put reasonable doubt in your mind that consent was not given during the instance in question?


Doubt? Yes. Reasonable doubt? It depends on the other factors of the case. Like I stated in the opening post, just because a person consented to have sex with someone 24 times doesn't mean they consented on the 25th. But I am most certainly not going to give past consent that much weight, because the circumstances of a relationship could very well change in an instant. It could be an exhausted wife, who's husband forced himself on her anyway, or some possessive jerk who thinks that sleeping with a girl once entitles him to sleep with her an infinite number of times.

However, I do now understand how you're relating past relationships, and I feel that, if the judge finds the defense's presentation appropriate, that the topic could be brought up - but only as it relates to the accused.
droop224
Quick points to clarify.

In most states a persons past history can not be shown, unless that person takes the stand. When that a defendant takes the stance he is acting as a character witness for him/herself. The defendant is saying "I am honorable, take my word for it, I did not do the crime" The prosecution can then bring up previous crimes or records.

Lesley

There wasn't a contradiction in what I was saying. Two people are in a room. The woman says no the man forces himself on that woman. That is rape. Her past does not change the fact that she was rape.
... Or two people are in a room the man and woman have consensual sex. The woman claims to be raped afterwards. Again the woman's sexual history doesn't make the consensual sex rape. This is what I mean when I state:

QUOTE
You are correct to assume that a woman's history has no bearing on whether or not she was raped.


What happened in that room only the two of them know, there are no mind readers (that I know of) it could or could not be a rape that happened and her sexual history has no bearing on whether it ACTUALLY occurred.

Saying that

The sexual history is still relevant to the court case because the rape charge is being contested. I'll address this more to Suzy than you.

Suzy:

You are not being fair in your application of reason and that is why it doesn't make sense. You state

QUOTE
How does a history of consensual sex in any way relate to an instance of non-consensual sex?


The history of consensual sex does not relate to an instance of non-consensual sex. But the part you won't see is that the fact hat it is non-consensual sex is being contested. You are taking the stance that a rape DID occur, rather than a rape MAY have occurred This is why what I am saying seems so wrong to you. The defendant in legal eyes did not rape the accuser, until it is proven that he did. Now she may present to the court a pair of ripped panties and say "Here is proof of my rape, he tore off my underwear." He has the right to refute that evidence by saying, "This is not a sign of rape, because Joe Shmoe did the same." She may say "I hardly knew him I wouldn't have consensual sex with someone I didn't know." He has the right to refute this by saying "She has had one night stands with both Cousin ray-ray and Uncle Charles" She may have vaginal tears or bruising and say "This is proof I was raped, look what physical damage he has done to me" He has the right to say, "Ladies and Gentlemen of the jury sh told me to be rougher, and here is Tommy who can testify to the fact that she told him she wanted rough sex as well." I could go on and on.

Her history is totally irrelevant for the prosecution, but it is very much relevant to the defense in terms of showing the jury that thing offered by the plaintiff may have reasonable reasons. That is why it compares to my other analogies.

Lesly again:

I do think rape shield laws are designed to help women feel more comfortable with coming forward with being raped, do you agree?? If so, what I am saying is: A better way to help women come forward is changing our society so that a woman is not ashamed of her sexual history, and therefore would not come forward because her past would be exposed. Making it harder for an accused person to prove his innocence is not the best way.
Lesly
droop224:

QUOTE
I do think rape shield laws are designed to help women feel more comfortable with coming forward with being raped, do you agree?


I would have no idea to be honest. I haven't heard a woman say she came forward because of the rape shield laws in the news. I google'd and came up empty handed for a statistic verifying or debunking this.

QUOTE
If so, what I am saying is: A better way to help women come forward is changing our society so that a woman is not ashamed of her sexual history, and therefore would not come forward because her past would be exposed.


The last time we tried legislating morality was the 18th Amendment. A shift in social attitudes comes from within society. The government can encourage the change through state and federally backed programs but at the end of the day you cannot make anyone drop their prejudices. The same goes for the jury duty. The only way to guarantee prejudices don't play a role (besides careful jury selection) is omitting a woman's sexual history that doesn't pertain to the case at hand.

QUOTE
Making it harder for an accused person to prove his innocence is not the best way.


You may think it makes it harder for the defendant to prove their innocence but if I file rape charges on a stranger tomorrow what I do with my boyfriend has no bearing on my or the defendant's intent.
Azure-Citizen
QUOTE(droop224)
Quick points to clarify.

In most states a persons past history can not be shown, unless that person takes the stand.  When that a defendant takes the stance he is acting as a character witness for him/herself.  The defendant is saying "I am honorable, take my word for it, I did not do the crime"  The prosecution can then bring up previous crimes or records.

Evidence of most prior bad acts in general can not be introduced unless the defendant takes the stand and puts his own character at issue. However, most states have carved out specific exceptions to this in rape cases for evidence of the defendant's prior sexual assaults. I would suggest reading FRE Rule 413, then checking your own state's statutory law and rules of evidence to see if they have adopted it or something similar.
Bikerdad
In a rape trial, there are only three fundamental facts that must be determined.

1) Did sexual intercourse occur? Simple to establish immediately subsequent to the incident, more difficult as time passes.

2) Is the defendant the correct individual? Far easier to establish now with DNA testing.

3) Was the intercourse consensual?

Now, the first two can generally be determined by physical evidence, and SOMETIMES the 3rd can be... if, however, it isn't, then the following must be the presumption of the court and jury:

The intercourse WAS consensual. Any other presumption equals a presumption of guilt. I know this isn't going to make Suzy happy, but when consent is the bone of contention, the credibility of the accuser is the key. It is the duty and responsibility of the prosecution to prove that the accuser is not lying, not the duty of the defense to prove that the defendant is not lying. Rape shield laws ARE unconstitutional because they deny the defendant the right to face, i.e., challenge, their accuser. They deny the defendant the right of due process. They deny the defendant the presumption of innocence.
Jagwease
I can’t speak to the California Rape Shield Law, but every RSL has exceptions. They fall into 2 categories: 1) prior acts with the accused, and 2) Constitutionally required aka exculpatory

If the accused KNOWS of the prior acts prior to the alleged assault, AND he is raising a mistake of fact defense – it is all coming in. It goes to HIS state of mind. That is the key element in these cases. The accused’s state of mind is really the deciding factor.

Whether the woman consented or not is an intermediate question. If consent, end analysis. If no consent, then you look to the accused mens rea -- did he intend to have sex without consent. In my experience, the overwhelming numbers of cases are tried on the issue of mistake of fact – did the accused honestly and reasonably believe that the woman consented despite her claim of lack of consent. The rest of the cases are SODDI (Some Other Dude Did It).

It is somewhat trivial to get around the Federal RSL, and I suspect the same would apply to most state laws as well. What a rape shield law really is, is a super rule of relevance. Is it relevant that a complaining witness slept with 30 people in one year 5 years ago? No (unless one was the accused). Is it relevant that she slept with 4 people within 48 hours after the alleged attack? Quite possibly yes – goes to her credibility as to whether a rape victim would have 4 partners so soon after an alleged attack.

As to whether a person’s character and prior bad acts can be used to prove that they acted upon that character trait or since they committed a crime before they committed this one (aka propensity to commit a crime), it is a sticky issue. In the sexual assault and child sex abuse, prior bad acts are admissible as long as they are not more prejudicial than probative (a classic example is a recent case where a 32 year old adult had a juvenile act – not conviction – of a sexual battery (copping a feel) as a 14 year old against a 12 year old, the appellate court overturned conviction because the act was far too damaging and the helpfulness to the jury was far too small.) Prior bad acts can be used in other cases to show motive, opportunity, lack of mistake, intent, plan, preparation, knowledge, identity.

Character evidence is often useful in Self Defense cases. The accused may ALWAYS bring up character evidence of relevant character traits as a defense. The trait of honesty in larceny cases; peacefulness in assault cases; truthfulness to rebut accusations of lying, etc.

J
BellaDanniella
QUOTE(SuzySteamboat @ May 24 2004, 04:04 PM)
I saw a segment on The Abrams Report tonight about the gang rape by two men, aged 18 and 19, of a 16-year-old girl and realized that there hadn't been any topic created to discuss the case, so here it is. Personally, I am very disgusted by the media's - including Dan Abrams' - attitude towards the alleged victim. Here in 2004, there are still an astonishing number of people who believe that if a person has sex with 204 people, that she wants to have sex with number 205. Or that if a girl has sex with an individual 24 times, that means she consented to have sex with that person on the 25th. Or that "aspiring porn stars" cannot possibly be raped, because any time she has sex, it must have been consensual.

I can't possibly believe that people think that the circumstance that she may have given oral sex to the men the day before is relevant to whether she consented the next day to allowing them to insert a lit cigarette and a pool cue deep into her orifices. Does having sex with someone one time completely erase any possibility of them raping you because you consented that one time? Does having sex with 50 individuals mean that you're willing and able to have sex with anyone in the world?

Questions for debate:

1) Based on your observations about the media coverage of this case, do you feel there is a bias? If so, is it towards the alleged victim or towards the defendants?

2) Should an alleged rape victim's past sexual encounters play any role in the credibility of their accusation?



[SIZE=1]Note: this may be more appropriate in the media forum, I'm not sure so I put it here

Edited to add link to story: link

QUOTE
Questions for debate:

1) Based on your observations about the media coverage of this case, do you feel there is a bias? If so, is it towards the alleged victim or towards the defendants?

2) Should an alleged rape victim's past sexual encounters play any role in the credibility of their accusation?



Ok...

1) the job of an attorney during opening arguments is to discredit the opposition.
sadly, in cases of sexual assault, that discreditation often takes the form of character assassination. (leaving the victim of the alleged crime to forever be scarred not only by the actual crime, but also by the legal system that is there to supposedly put the wrong doer to "justice".. but I digress...)

So...from what I read in the piece that you presented was this woman (the reporter) giving her account of what it was like in the courtroom that day. I saw what i considered fair treatment of both sides - and that she was doing her reporting from the standpoint that no person would want to be sitting in that room listening to any of the accounts that were presented that day.

The media as a whole seems to be taken over by the "sensationalization" of everything. (meaning, if it gets good ratings, then lets play the hell out of it and ride it out till we canna get anything more from it)
In the piece that you referenced, I do not see a bias from this reporter's perspective/reporting.

2) An alleged victim's past COULD be an issue in certain cases. (ie - history of alleged assault accusations of similar nature, etc)
But to say that because she had sex with X number of people in her lifetime? no, I don't believe that this has a bearing on whether someone was assaulted. I am under the impression that she was extremely intoxicated or otherwise seriously impaired intellectually at the time of the alleged assault. (references to "unconscious") One cannot give nor refrain from giving consent under such circumstances.

I am left wondering where this video came from that showed all that happened or went on with and to the young woman ?

Wow...there is something more...here is a link for more coverage -and disgusting coverage (imho) This says way more about what h appened and how the biases are being played out...(and by whom)

*warning....the link may be triggering to survivors of rape, its VERY graphic and horrifying*

http://www.ocweekly.com/ink/04/35/moxley-exclusive.php
midwest angie
Im not sure if there is a bias based on media attention, so I wont comment there, but I have plenty to say regarding question two.

a rape victims sexual history should NEVER EVER be a factor in validating her claim. I dont care if the woman was dancing naked on a bar, no means no, and rape is rape, re-victimizing the victim by insinuating that her total number of partners or her prior behavior that night meant she somehow deserved, or asked for a horrific crime about power and control, not sex, happen to her is nothing short of pure evil.

you have to remember rape is not a crime about sex. sex is the tool, the weapon, but rape is a crime about power, control, and abuse.

that said......

I find it deplorable that our society still values a womans right to say no at any time in a sexual exchange so little that we have to ask questions like this. I understand that it is open to inturpretation how a man hears and processes that information while he is deeply engaged but no is no. We have in recent years put away men who it took thrity seconds to stop, young men, destroying their lives cause it took them half a minute to hear the woman and process the request. Thats wrong. But most rape cases no is said over and over and over and he does not stop until he is finished. Thats rape, and it does not matter when, who, or what she did that night, that month, that year, etc.
Vermillion
QUOTE(midwest angie @ Jun 10 2004, 07:22 PM)

a rape victims sexual history should NEVER EVER be a factor in validating her claim.  I dont care if the woman was dancing naked on a bar, no means no, and rape is rape, re-victimizing the victim by insinuating that her total number of partners or her prior behavior that night meant she somehow deserved, or asked for a horrific crime about power and control, not sex, happen to her is nothing short of pure evil. 

Can the [i]prosecution[/] use the victim's sexual history to show lack of intent?

"She would never have consented to sex, she was a virgin", or "She would not have consented, she had a boufriend and has always been faithful"...

I agree with you in part, once it has been determined that the woman said no, then her sexual history is irrelevant and should not be brought up. But that is rarely the case. The most common defense against a rape charge is to alledge consent, thus barring external confirmation, we cannot know if she said 'no' or not. In cases like that, I CAN see situations where previous sexual hisory would have bearing on the determination.

Rape is a heinous, truly evil act, but regardless of HOW evil a crime is, the accused is innocent until proven guilty. If the alledged rapist claims consent, it is assumed to be the truth until disproven. Its ugly, but its the only fair way to obtain justice.
Jagwease
QUOTE(BellaDanniella @ Jun 4 2004, 04:20 PM)

1)  the job of an attorney during opening arguments is to discredit the opposition.

No, an opening statement is to tell the fact finder what the evidence will show. It should not include argument as it is inappropriate at that time. Granted, it is a time to sin what the fact will be in your favor, but outright argument will get you shut down by the judge.

Don't believe courtroom dramas on TV -- they bear little resemblence to anything that actually occurs in court.


J
KathleenMaxwell
I can't believe the boldness of the defense attorney in arguing that the girl consented. After reading the descriptions of the video in the OC Weekly, how could anyone deny that a horrifying crime occurred? I can't imagine that the jury could see it any other way.

I'm surprised at the lack of publicity that the mainstream media has afforded this case. I live in Orange County. KFI (radio) and the OC Weekly are the only media outlets following this case to any extent. The mainstream newspapers here only cover the legal aspects of the trial, completely overlooking the ridiculous allegations of the defense attorney and the presumption by the Heidl family that the boys will get away with this.

I'm afraid that even if found guilty, the boys will receive a light sentence. What type of message would that send to the young, sexually active boys and girls of Orange County? What are young girls to take away from this trial? That if people think you're a slut you cannot be raped? That if someone brutally rapes you while you're unconscious, you should expect to have to prove that you didn't want it to happen?

I am proud of Jane Doe for being able to take the stand in court. Hopefully, when this case is over women will have her to thank for setting a legal precedant: You cannot rape and get away with it... even if you're a rich boy from Orange County.
DaffyGrl
Breaking news on Los Angeles NBC news affiliate just announced that the judge has declared a mistrial in this case. No further details were given.
KathleenMaxwell
QUOTE
Her sexual history is the equivalent of the accusers violent history.
hmmm.gif

Being as I am a woman and do have a sexual history, I want to state something here as a matter of public record:

If I am ever unconscious (or drunk to the point of passing out), let it be known that I do NOT want to have sex at that point in time. Furthermore, I will consider it a gross violation of my personal space if ANYONE (including any person I have had sex with in the past) uses foreign objects to penetrate my orifices to the point of physical injury.

Sorry to be so graphic, but judging by the mistrial of the "Haidl" case, this needs to be said...
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