In the case of a high profile guy like DSK, it seems like there are many women who have been assaulted by him but have never had the courage to speak up. Now that one person has accused him, the others are finding themselves willing to come forward. I don’t think that’s a bad thing, but I hope they have more credibility than the hotel housekeeper.]]>
And I’m sort of disgusted at the lack of courage of all the other women who suddenly now stand up. Do you think there’s some kind of statistic for this kind of thing? Like that one where for every person who writes a letter to the editor, there are 1000 others who agree? Like, for every woman who claims assault, there are ten silent others?]]>
The thing that makes rape allegations so difficult is that there are often no witnesses and, as in this case, the physical evidence can be inconclusive. If that is the case, then credibility is your only weapon. I think juries are willing and able to believe the victim, as long as the victim isn’t a proven liar before she even walks into court.]]>
I think we both agree on this case. I wonder what role the idea of possibly losing a high profile case played in all of this.
One thing for sure is that if you lack credibility and you make rape accusations you will have a hard time proving it in court.
I still believe that DSK is sex offender. He just is on the loose for now.]]>
The idea that people should just be scared of sex isn’t the only thing since you can be charged with rape without there being physical evidence of such. Without some burden of proof on the state to prove beyond a reasonable doubt their case then anyone can bring whatever charge they want. And yes, that does happen quite regularly.]]>
Here is the federal law:
Rule 412 Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition
(a) Evidence Generally Inadmissible.–The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
(c) Procedure To Determine Admissibility.
(1) A party intending to offer evidence under subdivision (b) must–
(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
As you can see, there are only three exceptions that apply to criminal cases:
1.Prior sex with others to prove that the accused is not the source of blood or semen found on the victim;
2.Prior sex with the accused to prove consent; and
3.Prior sex that, if excluded would violate the constitutional rights of the accused.
These exceptions are similar to the first two you cited in your comment, but not the third. There are some jurisdictions which allow evidence of prostitution to be admitted, but it seems to me those are in the minority, and would be rare cases anyway. I assume we are not talking here about cases in which the victim is a prostitute.
The exceptions which actually exist in the law are important. If excluding evidence of prior sex acts would violate the constitutional rights of the accused, of course such evidence should not be excluded. But that’s a very high standard.
Similarly, if the prior sex acts are with another person and are such as to show that the physical evidence found on the victim is from them and not the accused, of course it should be admitted, because that could mean we have the wrong person on trial! I assume you are interested in getting the actual rapist in jail, rather than some other person.
Lastly, prior sex acts with the accused should be admitted because if there is a sexual history between the victim and the accused, that evidence sheds light on whether there was consent or not. In other words, if the victim and the accused were involved in a sexual relationship, that’s something the jury needs to know before they can determine whether the encounter in question was rape.
I don’t see how you can argue that any of these exceptions makes the law meaningless.]]>
I had understood that a fundamental concept of our legal system was that prior convictions or accusations of wrongdoing were inadmissible as evidence of current criminal charges. I stand humbled and corrected.
(And somewhat concerned.)]]>
Numbers again: based on confidential surveys, it is projected that on average 300,000 women and 30,000 men are raped each year. About 120,000 rapes are reported each year. About 50,000 men and a handful of women go to prison for rape each year. Do you really think 70,000 women are lying to the police?]]>
why is it assumed that, absent other evidence, the woman is committing perjury?
Ii’s not. But you are not taking into account the testimony of the accused. If he claims there was consent, then you have to look to other evidence, and the relative credibility of the two parties, otherwise you are assuming that the accused is committing perjury.
In other words, I could have asked the same question of you: Why are you assuming that, absent other evidence, the accused is committing perjury?
When the “consent” defense is brought up, a woman’s entire sexual history is open for examination, while the rapist’s history is off-limits. Furthermore, any perceived moral transgression of any kind is also open for examination.
Absolutely false. In fact, it’s practically the reverse. Nearly every state has a rape shield law which states that a victim’s sexual history is inadmissible for the purposes of establishing whether or not she consented.
By contrast, a Defendant’s history of sexual assault is admissible in most cases:
FRE Rule 413:
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
You may not think your opinions naive, but people rarely do. What is obvious, however, is that they are not in accord with the facts.]]>