tension between defendant's rights and victims's rights?

[distortionmarshall]

was just wondering how you guys felt about it.... my recent thinking on it was inspired by the stuff going on in the Kobe case....

i suppose it more or less boils down as follows:

(a) defendants historically have be given a lot of leeway on their defense - largely due to the constitutional right to face one's accusers.

(b) somewhat more recently, it was noticed that in rape cases, this right was being somewhat abused, with oftentimes irrelevant and oftentimes predjudicial questioning/testimony being pursued.

(c) so we end up with rape shield laws, designed to prevent this kind of problem.

it seems like there's a little bit of tension here, between the defendant's right to a defense, and the (alleged) vicitim's intuitive (and now codified) rights to not be held up as a slut for scorn and ridicule - but i'm having trouble saying exactly what that tension is.

does anyone else see a tension between these two goals?

[Sandpiper]

1. I see two interests that are difficult to balance

For the victim, being raped is a humiliating and dehumanizing experience, and many of them would rather not step forward if doing so would just expose them to further embarassment. Hence the creation of rape shield laws.

On the other hand, anyone accused of a crime in this country has a constitutional presumption of innocence, and as such, has the right to face their accuser and question the credibility of said accuser.

I see more than a tension between these two goals. I see two goals that fly in the face of one another.

[iverglas]

2. thoughts

(a) defendants historically have be given a lot of leeway on their defense - largely due to the constitutional right to face one's accusers.

Historically, persons accused of sexual assault had a great deal more leeway than persons accused of other crimes.

Not just leeway in presenting a defence -- they also a much easier case to meet in the first place. At various times, there have been various manifestations of this, but all were some kind of expression of the rule that the victim's word is never sufficient.

In other kinds of crimes, the issue may indeed be "his/her word against his/hers", and what the trier of fact (judge or jury) then has to decide is which person is more credible.

In rape trials, juries often did not have that opportunity. I'm not familiar with specific US laws, although I'm confident they were similar; in Canada, up until not much more than 20 years ago, the judge was required to instruct the jury as described here:

... the judge shall, if the only evidence that implicates the accused is the evidence, given under oath, of the female person in respect of whom the offence is alleged to have been committed and that evidence is not corroborated in a material particular by evidence that implicates the accused, instruct the jury that it is not safe to find the accused guilty in the absence of such corroboration, but that they are entitled to find the accused guilty if they are satisfied beyond a reasonable doubt that her evidence is true.

Actually, this caution had to be given in cases of rape, attempted rape, sexual intercourse with a minor female or indecent assault on a female -- but *not* in cases of indecent assault on a male.

Fortunately, when I was raped I'd already finished first year law and studied criminal law. Apparently I showed the 1974 Criminal Code of Canada I just copied the above from to someone once, to explain that old rule. Here are the notes I'd written in it:

THIS WAS THE LAW IN 1974 WHEN I WAS RAPED

This is what the judge would have been required to tell the jury if he <the accused> had not pleaded guilty.

The editor's annotations in my volume of the Code explain what constituted "corroroboration", one thing being "evidence of the complainant's emotional condition and physical condition subsequent to the act of intercourse", after which I wrote:

The cop who came to the farmhouse where I ran told his superior on the phone that I was very distressed and had marks on my neck -- emotional and physical condition.

Another form of corroboration was called "recent complaint" -- a woman was regarded as more likely to be telling the truth if she had immediately told someone what happened to her, rather than waiting. That's why, as I wrote in my Code:

I knew that. I ran to the farmhouse, banged on the door & said "I've just been raped" to a total stranger.

So historically, persons accused of rape had more than a "constitutional right to face their accusers" -- they had a formal legal right to be regarded as more credible than their accusers, that no one accused of any other crime had.

Of course, another good bit of corroborating evidence would be an eye-witness account from a third party. Some legal systems have required or do require just that in rape cases. Again, not for any other kind of crime or accused person or victim.

The other aspect of the "leeway" allowed in defending such a charge is the extent to which the accused was allowed to challenge the complainant's credibility -- by raising matters that could not be raised about a complainant in any other kind of case, especially her sexual history/reputation. The clear basis for that was the belief that if a woman had consented to sex with one man, or had a reputation for consenting to sex, it was more likely that she consented to sex with the accused. Yeah, and if I consented to lend my car to my friend, it's more likely I consented to lend it to the guy who stole it ... .

Obviously, the effect of this was not simply to undermine the complainant's credibility, but to inflame judges and juries against them and make them less likely to want to help them by convicting the accused.


(b) somewhat more recently, it was noticed that in rape cases, this right was being somewhat abused, with oftentimes irrelevant and oftentimes predjudicial questioning/testimony being pursued.

Yup -- it was noticed by women's groups who started up a bit of a clamour about it. And about the fact that victims' reluctance to expose themselves to such treatment, in situations in which general social attitudes already made many feel ashamed, made for low reporting rates for sexual offences, i.e. a higher rate of offenders getting away without even being charged, and thus for a lack of deterrence of such crimes, that being contrary to the public interest. If we concur that women's interest in not being sexually assaulted is a component of the public interest, the problem being that it was long regarded as only a very tiny component of that.

This factor relates not only to the kind of questioning permitted about personal background/reputation, but also to questioning about the incident itself, designed to raise the question of not just, specifically, whether the complainant consented, but whether she "invited" the assault: what she was wearing, where she was with, whom she was with, what she was doing. The implication is often that a woman who was in a bar, for instance, and associating with men, is to be expected to expect that they will want sex from her and so ... well, so what? Expect that they will assault her? They've still assaulted her. The connection being made is not rational, it's irrational, but it's effective.

Consent itself is commonly raised in situations where it would never be raised in respect of other crimes. In my case, I was hitchhiking with a male companion who, unfortunately for me, was going a shorter distance. By the time I realized that I was in the middle of nowhere in a locked car with no doorhandles, it was too late. By the time he had his hands around my throat and I was starting to lose consciousness, I figured that "consent" was my best chance of getting out alive. Here's how the cross-examination at the voir dire (out of the jury's presence, to determine whether my evidence would be heard by them in a case involving the rape of two other victims by the same man), by the defence counsel who had been bumming cigarettes from me for three days and taken me out for lunch the day before:

him: Now, you work for <senior govt. research agency where I worked while I was a law student>. Can you tell us what you do there?

me: Right now, I'm studying the connection between the relationship between a victim and offender and the sentence imposed.

(I was compiling statistics in order to determine whether judges had a tendency to impose lighter or heavier sentences on accused persons who had a relationship with their victims.)

him: Oh, so you're studying victimology.

me: What's that?

him: The study of how victims cause offences.

me: No.

After I described how I had attempted to put my foot through the accused's windshield, leaned on the horn and screamed at the top of my lungs, and offered him money to let me out, but then after being choked explained to him that he had just taken me by surprise and there was no problem and we could do whatever he wanted, defence counsel said:

him: So you did not consent.

me: No.

him: He couldn't have thought you were consenting.

me: No.

him: No reasonable person could have thought you were consenting.

me: No.

And I got down from the witness box and went to the friends' house where I was staying, and thought to myself ... maybe he really did believe I was consenting; maybe I was wrong.

Fortunately, I got over this before long, like by next day when I testified in front of the jury and Mr. Defence Counsel didn't try it on again. And I'd already got over the psychiatrist I went to a week after the incident, because of the anxiety that was preventing me from functioning, who had told me I had a rape wish and a death wish and I needed psychoanalysis. I was 23, but I was a pretty tough cookie and mouthy feminist and not easily fooled by these games. But that's just me.


(c) so we end up with rape shield laws, designed to prevent this kind of problem.

Yeah. Too late for me. I was just lucky they didn't know about or try to subpoena that psychiatrist's records. I refused to pay him, and beat him (on a technicality) when he sued me for his fee. And blacklisted him all over town.

There are different types of rape shield laws. Exclusion of evidence about the victim's personal history is one common type. There is considered to be a difference between sexual assault offences and other kinds of offences because of a number of factors, some of them legitimate considerations and some not, some relating to the nature of the offence and some relating to considerations such as not deterring victims from making complaints (it being in society's interest to encourage victims of crimes to make complaints).

Physical evidence (from medical exams, e.g.) is not conclusive of the central issue (central in some cases, completely hokey in others like mine): consent. That does come down to a question of credibility, and accused persons must be able to present evidence to undermine the credibility of witnesses against them.

But should they be able to do so by demanding and acquiring kinds of evidence that they could not acquire in other kinds of cases? Should they be able to bring in that kind of evidence when clearly it does not speak to an issue at the trial and really just discredits the complainant as a person, and not as a witness -- i.e. is "prejudicial"?

Frankly, I've lost track of what the rape shield laws are in Canada these days. It seems to me that they're forever being amended to respond to some perceived problem or other -- in the pendulum pattern you cite, but in an ever-smaller arc: restricting the defence's latitude, opening it up a bit, tightening it back up a bit ... .

So at the end of all this, I have questions.

it seems like there's a little bit of tension here, between the defendant's right to a defense, and the (alleged) vicitim's intuitive (and now codified) rights to not be held up as a slut for scorn and ridicule ...

(I'd point out that keeping victims from being held up for scorn and ridicule really isn't the only aim, as I've described above. And I offer "complainant" as a good neutral word for the "(alleged) victim" -- after all, whether a person is a victim is a matter of fact, and a person may indeed be a victim, whether anyone is ever convicted of a crime against him/her or not, so a complainant isn't necessarily just an "(alleged) victim".)

Did you have specifics in mind? What limitations on the defence's latitude do you consider to be of concern, or possibly not justified? What possible harms do you see resulting from them" -- wrongful convictions, obviously. But how probable is it that such convictions will happen that would not have happened if the defence had had that latitude? Would those acquittals likely have been because of the same kind of reasonable doubt that a judge or jury might feel in other kinds of cases, or because of the discrediting of the complainant as a person?

How much concern should we have about the latter -- how probable is it that a jury will find an accused not guilty based on something other than reasonable doubt in such cases? How do we balance our interest in not convicting innocent persons, the possible result of measures at one end of the pendulum's swing, and our interest in being able to deal effectively with serious crimes, i.e. in victims reporting the crimes and testifying, which we know pretty well is less likely to happen at the other end?

To what extent is how we answer those questions based on reality, and to what extent is it based on prejudices and stereotypes? Normal men don't sexually assault women; good girls don't get raped; women have a collective tendency to make false complaints of sexual assault; women have a collective tendency to be somewhat unbalanced; etc.

If we do have those prejudices, what do they derive from? For instance, have women had a collective tendency to make false complaints of sexual assault? I'd have to agree that, in the past, this was probably true. Such complaints were self-protection strategies in some cases: a woman who voluntarily engaged in sexual activity would suffer very serious consequences if it became known, and denying consent could spare her those consequences. And women were to a large extent the property of either their fathers or their husbands, and their chastity was the man's asset, and the price the woman paid for the protection she needed in society; rape was an offence against those men, and a woman discovered to have voluntarily engaged in sexual activity without their consent could only buy back her protection by acquiescing in a false allegation of rape.

Are these relevant today? Were they ever that relevant? Should we use their possible historical relevance to justify what may just be "(alleged) concerns" today? Is it that difficult to determine the credibility of a complainant in a criminal case? And will women not subject to those kinds of coercive pressures really make a practice of exposing themselves to the unpleasantness of a rape trial, even with rape shield laws in place? (And will those who do, for TV movie profits or whatever, not probably be fairly easily spotted as non-credible using the tools already available?)

Here I am, not working. And just being curious.

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