Sexual History: Should it be admissible in a court of law?

[Dowaco]

Scenario #2

A married woman whose husband routinely works late has food delivered from a local resaurant several times a week. There are three young men who have delivered the food over a two year period. Each time a man arrives, the woman invites him inside, seduces him and they have consentual sex. Finally, no seduction is needed and it becomes a competition between the three men as to who will deliver food to her the next time.
The husband comes home unexpectedly one day. The wife hears him arrive and starts to fight vigerously with the young man. The husband beats the man and police are called.
At the rape trial, the woman sports a black eye and prosecutors have DNA evidence from a rape kit and from under the woman's fingernails as well as testimony from the husband and wife who both say the man forced his way in under the guise of delivering food. The timeline of his visit is pinpointed by the restaurant and phone records.

The accused rapist is an Italian immigrant and does not speak fuent English. The testimony of his buddies that the woman invited sex is inadmissable because it is previous sexual history of the "victim".

I don't think presumption of innocence would carry the day in this case.

[dragon wench]

@Dowaco,
I think the scenario you portray certainly would raise a lot of questions in this debate.

But getting away from my own internal doubts that gave rise to this thread,
... I'm a bit uncomfortable with hypothetical scenarios in these types of discussions. For one, it can be easy to set up a straw man argument, and for another shouldn't 'rules' (assuming one supports the admission of sexual history in court) be based on actual precedent rather than a theory of what may, or may not, happen?
I don't really know, I'm no lawyer, just musing here...

[Lestat]

Scenario #2a

A married woman whose husband routinely works late has food delivered from a local resaurant several times a week. There are three young men who have delivered the food over a two year period. Each time a man arrives, the woman invites him inside, seduces him and they have consentual sex. Finally, no seduction is needed and it becomes a competition between the three men as to who will deliver food to her the next time.
The husband comes home unexpectedly one day. The wife hears him arrive, gets scared and tells the young man to stop, but he refuses, so she starts to fight vigerously with the young man. The husband beats the man and police are called.
At the rape trial, the woman sports a black eye and prosecutors have DNA evidence from a rape kit and from under the woman's fingernails as well as testimony from the husband and wife who both say the man forced his way in under the guise of delivering food. The timeline of his visit is pinpointed by the restaurant and phone records.

The accused rapist is an Italian immigrant and does not speak fuent English. The testimony of his buddies that the woman invited sex is inadmissable because it is previous sexual history of the "victim".

In what way would sexual history be able to make a difference between scenario 2 (where there is consent) and scenario 2a (where consent is withdrawn).

[Chanak]

@dragon wench:

I feel that a certain amount of leeway for case-by-case assessment needs to be provided for in a justice system. While the laws themselves may be etched in stone, unfortunately the means by which justice is served must be more flexible.

In the case of the US judicial system, the rights of the accused are protected by law. The accused is not burdened with proving his or her own innocence; rather, the accuser must prove his or her guilt to authorities beyond a reasonable doubt. This protection is wise as it does serve to protect an individual from being wrongfully accused; it's by no means a fail-safe mechanism, but it does help prevent the innocent from losing their rights wrongfully.

Mind you, I'm coming from a purely idealogical context here. In practice, the rights of the accused can be tossed to the wayside, as we have seen in real life. It certainly happens.

In criminal law, the victim, represented by the prosecution, is not liable for the alleged criminal actions of the accused unless the accused can prove, beyond a reasonable doubt, that he or she was entrapped and otherwise co-erced into criminal activity. Note that this clearly applies to what I like to think of as "cut and dried" cases: the illegal sale of drugs, car theft, etc.

In the case of rape, however, no such precedent has been established. Common sense contradicts the notion that somehow, the victim invited the crime to be done against them. A victim's past history has no bearing on the behaviors of the accused, for the law does not justify the commission of crimes. The law does define criminal culpability, however, and in cases where it turns out that the victim ends up being a participant in the crime, that is a different matter. Note that violent crimes do not fall under this precedent chiefly because the law does not generally allow the responsibility for the violent behaviors of an adult individual to rest in the hands of another. It is not the victim's fault that they were robbed, assaulted, etc. I support that notion completely. The history of the victim is not on trial; rather, the alleged actions of the accused are.

I can't think of too many judges that would permit such a thing in a criminal case. Note the term "criminal." That realm of law, despite the current excesses of the federal government, is pretty much intact.

Civil cases are another matter entirely. As sad as it may be, anything goes in civil court. Rather than being a weakness of civil law, I think this is due to the fiber of society.

[Dowaco]

In what way would sexual history be able to make a difference between scenario 2 (where there is consent) and scenario 2a (where consent is withdrawn).

The difference is that the woman must then admit there was consent in the first place. Something she is not likely to do (and perhaps the reason for her black eye).
If you can envision a reasonable scenario (and these are not farfeched) then you have to concede that in some small percent of cases, the truth might only be found through examination of all the evidence, not just parts of it.

But we are not after truth here. This is about balancing power. Politicians who need the female vote to get elected pass laws favorable to women voters. Rape is an emotional issue and Ken Jones voted to exclude past sexual history in rape trials. He protects your rights and is tough on crime. Vote Ken Jones.

This is where Law and Truth part ways.
You can have a law saying that the world is flat and kill people who disagree. But you cannot pass it off as truth.

[Lestat]

Still doesn't answer my question: how will sexual history help to determine whether consent was given?

Makes a history of consensual sex, rape less probable you think? What about marital rape then?

[Fiona]

The difference is that the woman must then admit there was consent in the first place. Something she is not likely to do (and perhaps the reason for her black eye)

You seem to imply that prior consent makes a difference as to whether it is rape when that consent has been withdrawn. At what point is it permissable for a person to change their mind, in your opinion?

I have already said that some women do make false allegations and that is properly addressed through the presumption of innocence, as has already been pointed out. However the incidence of false allegation is low,and the perception of it is high. The attrition rate in rape cases is enormous and that is partly due to this perception.

http://www.homeoffice.gov.uk/rds/pdfs05/hors293.pdf

The ‘cultural conceptions’ of rape referred to here are often described as ‘myths’, since they
do not reflect the reality of rape. We prefer to discuss powerful stereotypes that function to
limit the definition of what counts as ‘real rape’, in terms of the contexts and relationships
within which sex without consent takes place. As a number of researchers and legal scholars
have pointed out (see, for example, Estrich, 1987; Myhill and Allen, 2002; Du Mont. et al,
2000), despite extensive legal reform, ‘real rapes’ continue to be understood as those
committed by strangers, involving weapons and documented injury. The failure of criminal
justice systems to address these stereotypes means that the processes involved in responding
to reported rapes – from early investigation through to court room advocacy – can serve to
reinforce, rather than challenge, narrow understandings of the crime of rape, who it happens
to and who perpetrates it. The attrition process itself reflects, and reproduces, these patterns.

Whilst there have been far fewer studies of the prevalence of sexual assault than of domestic
violence (Hagemann-White, 2001; Kelly and Regan, 2001), access to relatively accurate
o official statistics for reported rapes has been more straightforward rd. Researching unreported
rape and sexual assault has proved more complex than many other forms of violence against
women, since using the word ‘rape’ in questions greatly decreases the reporting of forced
sex/sex without consent (Schwartz, 1997). The redesign of questions, for example, in the US
National Crime Victimisation Study in 1992 resulted in findings four times higher than previous
versions (Greenfield, 1997). As with all prevalence research, inconsistent findings are
attributed to methodological differences with respect to: the sample; the number and content of
questions asked; the format (questionnaire, telephone or face-to-face interview); and the
definition of rape/sexual assault used by the researchers (see Schwartz, 1997, for a more
detailed discussion). At the same time, comparative data show such significant variations
(Australia, the USA and Sweden recording high prevalence rates per head of population, and
South Africa had the highest rates for both prevalence and reporting) that the possibility of
Differential national levels of sexual violence within different societies needs to be explore

[Fiona]

>>

The prevalence estimates from both studies are considerably lower than in Painter’s study
(1991): one in ten (9.7%) and one in six (16.6%) women respectively had been sexually
assaulted; and one in 20 (4.9%) and one in 27 (3.7%) respectively had suffered at least
one incident of rape since they were 16 (Myhill and Allen, 2002; Walby and Allen, 2004).
Whilst there is considerable disparity here between the actual numbers1 7, there is
convergence about the contexts in which rape takes place: women are most likely to be
raped by men they know (intimates, 54%, other known individuals, 29%); and a
considerable proportion involve repeat assaults by the same perpetrator (50% in the last 12
months) (Walby and Allen, 2004). The Myhill and Allen (2002) re p o rt also reflected
findings from other jurisdictions (Bergen, 1995; Easteal, 1998) that rapes by current and expartners
were the most likely to result in injuries. This profile also accounted for the most
common locations, which were the victim’s home (55%) followed by offender’s home (20%),
public place (13%) and elsewhere (13%).18

Multiple attendees
One issue that has not been addressed in previous studies is the number of service users
who report multiple assaults over time. A total of 287 (9%) service users had attended more
than once about separate offences. The vast majority (77%, n=221) attended twice, with 44
attending three times, two attending six times and one attending eight times. Possible
correlations with either mental health problems or involvement with prostitution were tested,
but did not account for these patterns. Whilst the database does not enable further
investigation, these data raise the possibility of a group who may be uniquely vulnerable to
repeat victimisation. Given the high rates of attrition, and that prior unproven allegations
are seen to detract from victim credibility (Jordan, 2004), this group may also, at least for
subsequent assaults, have even less access to justice.

UK data and research
Figure 3.6, using official statistics from the Home Office, graphically illustrates the two
patterns in reported rape cases in England and Wales over the past two decades: a
continuing and unbroken increase in reporting2 0; and a relatively static number of
convictions. The combination of these two trends, which began in the 1970s (Regan and
Kelly, 2003), means that whilst in 1977 one in three reported rapes resulted in a conviction,
by 2002 this had fallen to one in 18 (32% versus 5.6%). The only change to the overall
pattern is a small increase in the percentage of prosecutions in 2001, which continues into
2002, but with no parallel increase in convictions. This may be an outcome of changes in
local and/or national policy in the police and CPS. However, it is too soon to say whether
this will be a sustained trend, which will also feed through into the conviction rate. In fact,
the attrition rate is even greater, since official statistics exclude reports that are ‘no crimed’
very early in the process (see Gregory and Lees, 1999; Harris and Grace, 1999), not to
mention that some convictions are overturned on appeal.

The conviction rate shows a considerable range between
areas, varying from one to 14 per cent across the two years. A number of potential
confounding factors were explored, including whether there were higher reporting rates per
head of population, but were not linked to the variations in conviction rates in any obvious
way.21

Attrition internationally
In studies of attrition rates across Europe (Kelly and Regan, 2001; Regan and Kelly, 2003),
Finland, Ireland and Sweden displayed the same stark trends over time as the UK, in
relation to reporting and conviction rates. Whilst a number of other countries recorded
variations in reporting, a decline in the proportion of prosecutions and convictions was a
common trend for every country that provided data, apart from Germany where the
proportion of prosecutions and convictions has risen since 1997. Much higher prosecution
rates, for example more than 50 per cent of reports in Austria and Denmark, were evident,
alongside a number of countries where the majority of prosecutions resulted in convictions
(Finland, Germ a n y, Hungary, Iceland). Overall these data suggest that, whilst some core
problems link adversarial and investigative legal systems, a number of European countries
have higher prosecution and conviction rates than the UK. In fact, the only country with a
lower conviction rate was Ireland (Regan and Kelly, 2003).

[Fiona]

>>

The Senate Judiciary Committee issued a report entitled Detours on the Road to Equal Justice
in 1993 that documented attrition in rape cases across the USA. The average conviction
rate in 1990 was 12 per cent. The report demonstrates disparities in how rape and other
violent crimes were prosecuted. The key Attrition points identified were: arrest (62% of
reported rapes do not result in an arrest); dismissal (of the cases that moved into the system,
48% were dismissed before trial); and acquittal at trial. The committee also noted reluctance
amongst prosecutors to bring cases where the parties were known to one another – the
majority of rape cases. However, the review found significantly higher conviction rates in
particular areas of the US, including Washington and New York. A subsequent review notes
that conviction rates across the USA range from 2.5 to 19.9 per cent (Sinclair and Bourne,
1998, p576) but offered little explanation of these wide discrepancies.

Brereton (1993) discusses four Australian studies where patterns similar to those
documented for England and Wales and the USA are reported. The key players are the
victim, in terms of the decision to report and continuing with the case, and the police in
terms of the decision of whether to lay charges and their influence on the victim’s subsequent
decision-making. Several studies also note 20 to 35 per cent of cases being dropped by
prosecutors. Guilty pleas are much lower than in other criminal cases. Two factors had the
most impact on outcomes at trial: evidence of physical injury; and admissions by the
defendant at some point in the process.

Summary
l Around one-quarter of reported cases were ‘no crimed’.
l Just under one-third of reported cases were detected but in a notable proportion
of these no proceedings were brought.
l A conviction rate of eight per cent was found across the research sites collectively,
although this was slightly higher for two of the individual SARC sites.
l This is higher than the national average of 5.6 per cent.

False allegations
False allegations have been one of the most contested areas within law enforcement responses
to rape, with research suggesting rates are no higher than for other crimes sitting alongside
perceptions of police officers and the media who take the opposite view. Some of the most
f requently cited US studies put the rate as low as two per cent (Katz and Mazur, 1979).
T h e re were 216 cases classified as false allegations: as a pro p o rtion of all 2,643 cases reported
to the police this amounts to 8 per cent; as a proportion of the 1,817 cases not proceeding
beyond the police stage it is 12 per cent (see Table 4.2). In only six of these cases was there
evidence of anyone being arrested, and in only two cases were charges laid, although there
w e re at least 39 named suspects. Six advice files were submitted to CPS, with respect to possible
charges being laid against the complainant for perverting the course of justice, and two were
charged. Interestingly, most cases in this category had a forensic examination (82%, n=178),
whilst far fewer made a formal statement to the police (58%, n=126), suggesting that this is a
critical stage for the admission or designation of allegations as false.
Cross-tabulations using the case-tracking database comparing the group designated false
allegations (n=216) with proceeding cases (n=527) revealed the following findings.
l Cases involving 16- to 25-year-olds accounted for a higher proportion of cases
designated false (52%, n=112) than of cases that proceeded (42%, n=221).
l Those in full-time work formed a smaller proportion of those whose cases were
designated false (11%, n=23 compared with 17%, n=91 of those proceeding),
whilst the opposite was the case for those who were unemployed (37%, n=79
compared with 18%, n=95).
l Whilst small numbers, those with a disability were almost twice as likely to be in
the false allegations group as the non-disabled (51%, n=24 of 47 compared with
28%, n=192 of 695), and in 19 of these cases mental health and learn i n g
difficulties were present.
l Only 2 of the 66 women involved in prostitution who reported were in the false
allegations group.
l A greater degree of acquaintance between victim and perpetrator decreased the
likelihood of cases being designated false.
l Cases were more likely to be designated false where previous allegations had
been made and/or the complainant had attended the SARC or reported to police
in the Comparison areas on a previous occasion.
Exploring the grounds on which cases were deemed to be false allegations is revealing and
120 pro formas contained explanations: in 53 cases the police stated that the complainant
admitted the complaint was false, most commonly within days of the initial accusation; 28
cases involved retractions; three non co-operation and in 56 cases the decision was made by
the police on evidential grounds. Interestingly, the majority of cases in which the complainant
themselves admitted the allegation was false could be categorised as the often quoted
motives of ‘revenge’ (n=8) and ‘cover-up’ (n=25). Although, as the explanations provided on
the police pro formas which are summarised in Box A, reveals, the terms ‘revenge’ and
‘cover up’ do not do justice to the complexity of the circumstances involved.

<snip>In most of these cases there was no named assailant.

[Fiona]

>>

Inconsistencies in the account given by the complainant feature strongly in 30 cases, and in
only 5 of these did police officers note that this involved deliberate untruths (lies as opposed
to not revealing the whole truth). Previous studies have highlighted the ways in which
withholding, or not remembering, information is the outcome of fearing disbelief, which may
subsequently be interpreted by police officers and prosecutors as ‘lying’.
Fearing disbelief and judgement, victims of rape may try to embellish their accounts,
or conceal wrong-doing, in order to make themselves appear more ‘believable’ to the
police. (Jordan, 2001a, p93)

Police scepticism promoted the narration of the very inaccuracies which, in turn,
consolidated the police view that women fabricate complaints and make false
allegations. (Chambers and Millar, 1983, pp86-7)

Reflecting this, a number (23%, n=14) of police officers interviewed for this study raised the
issue of inconsistencies, and indicated that this had implications for the perceived
genuineness of complainants.

The data on the pro formas limit the extent to which one can assess the police designations,
but their internal rules on false complaints specify that this category should be limited to
cases where either there is a clear and credible admission by the complainants, or where
there are strong evidential grounds. On this basis, and bearing in mind the data limitations,
for the cases where there is information (n=144) the designation of false complaint could be
said to be probable (primarily those where the account by the complainant is referred to) in
44 cases, possible (primarily where there is some evidential basis) in a further 33 cases,
and uncertain (including where victim characteristics are used to impute that they are
inherently less believable) in 77 cases. If the proportion of false complaints on the basis of
the probable and possible cases are recalculated, rates of three per cent are obtained, both
of all reported cases (n=67 of 2,643), and of those where the outcome is known (n=67 of
2,284). Even if all those designated false by the police were accepted (a figure of
approximately ten per cent), this is still much lower than the rate perceived by police officers
interviewed in this study. A question asked of all of them was how they assessed truth and
falsity in allegations and within this, 50 per cent (n=31) further discussed the issue of false
allegations.

The interviews with police officers and complainants’ responses show that despite the focus
on victim care, a culture of suspicion remains within the police, even amongst some of those
who are specialists in rape investigations. There is also a tendency to conflate false
allegations with retractions and withdrawals, as if in all such cases no sexual assault occurred. This reproduces an investigative culture in which elements that might permit a
designation of a false complaint are emphasised (later sections reveal how this also feeds
into withdrawals and designation of ‘insufficient evidence’), at the expense of a careful
investigation, in which the evidence collected is evaluated. These perceptions and
orientations are not lost on complainants.

l Twelve per cent of all reported cases, or 14 per cent of those where the outcome
is known, reached the trial stage.
l A proportion of these did not proceed to trial due to late withdrawal or the case
being discontinued at court.
l Around half of all convictions were due to guilty pleas rather than verdicts.
l In cases where a full trial took place an acquittal was more likely to be the
outcome than a conviction and the acquittal rate in trials involving adults was
twice as high as in those involving under-16s.

Key findings
l There are false allegations, and possibly slightly more than some researchers and
support agencies have suggested. However, at maximum they constitute nine per
cent and probably closer to three per cent of all reported cases. An overestimation
of the scale by police officers and prosecutors feeds into a culture of
scepticism, which in turn leads to poor communication and loss of confidence
between complainants and the police.
l In areas with integrated SARCs fewer complainants declined to complete the
initial process, and two SARC areas had slightly higher conviction rates.
l When given at an early point, honest assessments by police officers of the
likelihood of conviction and the difficulties of a prosecution are interpreted by
complainants as discouragement to continue with the case.
l There was little evidence of attempts to build cases, and some evidence of poor
investigation and understanding of the law, with clear emphasis in some cases
entirely on what was discrediting.
l Whilst there are many reasons why victims/survivors withdraw their co-operation,
fear of the trial process and discouragement by the police featured strongly.
l Police categorisation of cases is internally inconsistent, making monitoring and
evaluation extremely problematic.
l Few cases involved women with learning difficulties or women with mental health
problems (see also Harris and Grace, 1999).
Intellectual disability and psychiatric instability ... tend to be viewed as diminishing
the victim’s credibility, rather than enhancing her vulnerability.
(Jordan, 2001b, p349)
l None of the gang rapes with more than three assailants resulted in convictions.
l Women whose cases went to trial expressed disquiet and a strong sense of
injustice that they had no contact with the prosecution barrister52, and the majority
of those where the outcome was an acquittal complained of weak prosecution
advocacy in the courtroom.
l All stages of the attrition process appear more marked for young women,
particularly those aged 16 to 25, who are highly represented in cases involving
false allegations, early and late withdrawal of complaints and acquittals. This
requires strategies to address the way this age group is responded to and
supported through the CJS.
l Alcohol consumption was present in a much larger number of cases than drugs –
either voluntarily consumed or administered to facilitate rape. One would not,
h o w e v e r, know this from recent media coverage or police awareness - raising
campaigns. The ways in which consumption of alcohol contributes to all points of
attrition deserves more detailed study.

[Dowaco]

[QUOTE=Fiona]You seem to imply that prior consent makes a difference as to whether it is rape when that consent has been withdrawn. At what point is it permissable for a person to change their mind, in your opinion?[/QUOTE]

Prior consent is a huge factor in my opinion. The line is grey if there is a line at all. That point can only be determined by the individuals involved and not the state. There is also a problem with the fact that a woman can change her mind after the man has left and decide that she was raped post facto. And maybe she was. But the man may not think so and she gave no indication to him that she did either. How about statutory rape. A 17 year old gives permission to a 21 year old and never revokes it but the state sees it as rape anyway.

Human Beings are involved. Thats why each case needs to be evaluated on its own merits and not some cookie cutter standard. And all the evidence needs to be presented so that intelligent jurists can decide what happened.

[Fiona]

Each case is evaluated on its own merits. That is the nature of a trial. Prior behaviour is not evidence of anything at all and this has been argued by more eloquent people than me in this thread. If you refuse to see that then there is little to discuss, unless you can show where the relevance lies.

[Dowaco]

Prior behavior is evidence in sentencing.
Prior behavior is used to evaluate job applicants, business partners, spouses, pretty much anything that involves a relationship.
To discount it here is blinding yourself to half the story.

Sure it would be nice to evaluate each event in someone's life as an isolated incident but that is not realistic.
Let me say that by the same token, I believe that prior bad acts on the part of the defendant should also be considered.

I understand what the law says, I just don't agree with it.
I am also ridiculously unequipped to discuss law with lawyers since everything I know about law I learned from watching Law & Order. I would likely be found unfit to serve on a jury by both sides.

[Lestat]

Nope, still no indication how sexual history is indicative for the truthfulness of complainant... or in general useful in rape cases.

Moreover, including sexual history of the complainant seems to be stacking the deck against the complainant, while from Fiona's extensive quotes it should be obvious that the judicial process is already heavily tilted toward the defendant.

[snoopyofour]

"Moreover, including sexual history of the complainant seems to be stacking the deck against the complainant, while from Fiona's extensive quotes it should be obvious that the judicial process is already heavily tilted toward the defendant."

As it should be. A false decision is far more devastating for the defendant than the victim.

What if the defendant has been accused of rape before with no convictions, should that evidence be thrown out too?

[Ashen]

[QUOTE=snoopyofour]A false decision is far more devastating for the defendant than the victim.[/QUOTE]

Huh? Based on what exactly? A false decision is devastating for either party. I'd hate to see you say that to someone who was a victim and lost in court due to loopholes and bad lawyers. I don't think you'd like their answer or even their actions.

[Chanak]

Past history only matters in criminal law as it pertains to the sentencing phase of trial. Laws require that a repeat offender face more harsh penalties. This takes effect in the sentencing phase, should the accused be found guilty.

A good example of this was the trial I particpated in earlier this year. I sat on the jury, and we heard testimony and viewed evidence regarding the alleged burglary of a residence by "Mr. X." Mr. X had been convicted of two felony offenses in the past. If convicted, he would fall under the "three strikes" law here in Texas, having three felony convictions on his record. As things go, we found Mr. X guilty as charged. He faced the maximum penalty, 20 years in the State Penitentiary. Mr. X was 63 years old. At no time during the deliberation process did we consider that Mr. X was already a convicted felon. We reached our decision soley on the evidence and testimony presented to us at the trial. That was precisely what the judge instructed us to do after the jury selection process was completed. He also reminded us of that after closing arguments had been made, as we marched into the Juror's room to deliberate.

It is interesting to note that the Defense brought up the fact that the victim's residence had been robbed on two occassions prior to the alleged burglary that Mr. X was accused of. His lawyers tried to paint doubt over the very convincing and solid evidence presented by the Prosecution, claiming that the victim must be confused regarding belongings missing from his property, wrongfully accusing Mr. X of taking them. This failed to have any impact on our decision, as the array of pictorial evidence, eyewitness testimony, and even the Defense's own evidence convinced us of Mr. X's guilt.

I'm of the opinion that attempts to shore in the past history of a crime victim is not only pointless, but can actually damage the credibility of a defense. After we had reached our verdict, we were visited by both the Prosecution team and the Defense, and conducted a brief discussion with them both. We informed the leading defense attorney that trying to cast doubt on the evidence submitted by the Prosecution by suggesting the victim had his burglaries all mixed up harmed more than helped his client.

[snoopyofour]

[QUOTE=Ashen]Huh? Based on what exactly? A false decision is devastating for either party. I'd hate to see you say that to someone who was a victim and lost in court due to loopholes and bad lawyers. I don't think you'd like their answer or even their actions.[/QUOTE]


I'd hate to see you say that to someone who was falsley convicted, went to jail, was raped, got out, and now has to tell his neighbors that he's a convicted sex offender because some -expletive deleted- decided that she regretted her decision. I doubt you would walk away from their actions. If you think that a false decision is equally painful for either party then you would have to be either: unhinged or completely biased. They can't even be compared.

[Lestat]

At this moment (and see all the quotes Fiona's gave for that) we can estimate that the number of people falsely convicted of rape is largely outnumbered by the number of rapist that don't get convicted. I see no reason to rebalance the system in favour of the defendants in that case.

Furthermore you assume apparently that someone convicted of rape, will on his turn get raped when in prison. Back up please.

And do remember that many victims of rape, to know that their rapist is still walking free is a life sentence of fear.

And still nobody has answered how previous sexual history can contribute in determining the truthfulness of the complainant.

[Fiona]

[QUOTE=snoopyofour]I'd hate to see you say that to someone who was falsley convicted, went to jail, was raped, got out, and now has to tell his neighbors that he's a convicted sex offender because some -expletive deleted- decided that she regretted her decision. I doubt you would walk away from their actions. If you think that a false decision is equally painful for either party then you would have to be either: unhinged or completely biased. They can't even be compared.[/QUOTE]

Since you are unwilling to address the issue at hand, you clearly want to talk about something else and so far as I can see that something else boils down to the essential duplicitiy of women and the horrifying effects that has on men. I cannot grant the underlying assumption, and I do not think it is worth discussing since I do not believe you are amenable to argument on this.

So leaving that aside I will try to address your other point. You made a very sweeping statement, and you have now followed up with emotive assertions which you do not support. It is extremely difficult to compare levels of "devastation" and I think it is unwise to try. But fools rush in and here I go.....

In order to try to deal with this we need to find some objective way of comparing the effects of rape with those of false conviction. It is not possible to do that at the level of the individual, for obvious reasons. So we need some other kind of measure. I cannot put any numbers on this and I am innumerate in any case. But I can envisage the kind of study which might help. I take as a premise that the possibility of a truly devastating experience will have an effect on behaviour, in that the person will take steps to avoid it. Those steps will be informed by the level of "devastation" caused by the experience and also by the likelihood of it happening. At present I cannot see how to separate the relative impact of those factors but it does not matter for my purpose. There are no doubt other factors which would make a difference too but I am keeping it simple here

What I propose is that we survey how many times and in how many ways men and women modify or limit their own behaviour in order avoid false accusation/conviction and rape respectively. I think that would give some indication of the relative importance of those possibilities in the lives of men and women.

I am not aware of any such studies, but I will make some comment on the basis of things which have been said on the myspace thread and here.

1. More than one person commented that the girl on myspace should have limited her behaviour because of the possibility of rape
2. More than one person said her parents should have modified their behaviour because of the possibility their daughter would be raped
3. More than one person said that victims of more than one rape were failing because they did not change thier behaviour on the basis of the possibility of rape
4. One person raised the possibility that the accused should have modified his behaviour on the basis of the possibility that he might be falsely accused
5. On this thread one person (you I think) made it plain that you thought the idea the man should change his behaviour because he might be falsely accued was patently ridiculous ( at least that was how I took your flippant comments about cameras etc)
6. More than one person has said that the courts etc should change their behaviour to protect men from false accusation. This in preference to changing their own behaviour

On this admittedly far from comprehensive review of a series of statements on a small and self selecting sample, I would anticipate that a wider survey might just show that for all the hysteria and disregard for the rights of rape victims, men just are not scared enough to claim that this is a real problem for them.

Of course I may be wrong and every man here may limit himself in many ways to avoid just this accusation. I can tell you with some confidence that every woman I know thinks about where she goes and what she does with this in mind, every day

I do not know if that helps, or even if it is possible to communicate. But I am trying