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

[Ashen]

[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]

Well one thing is clear - what I am not is rude and you are insulting! Which brings this conversation to an end, now and forever. It was not nice knowing you.

[TonyMontana1638]

[QUOTE=Ashen]Well one thing is clear - what I am not is rude and you are insulting! Which brings this conversation to an end, now and forever. It was not nice knowing you.[/QUOTE]
Alright everybody just calm down. Insults, etc. aren't at all necessary nor are they allowed on GB and I suggest you all knock it off before a mod comes in here yelling and not just me.

[Maharlika]

@Ashen and snoopyofour: I strongly suggest that if you have issues among yourselves. Take it to PM.

5) If you have a problem with a specific member or their conduct then PMing them is a better alternative than insulting them publicly. It makes our job easier and the situation is more likely to be sorted out if done in private. If you wish you could ask one of the moderators to mediate the conversation, this might also be a good alternative.

6) Trolling (saying something designed to start an argument or offend people) won’t be tolerated either. Members who violate this will be banned.

This thread will be watched closely by the mods. An interesting thread, really. However, there is the possibility of it getting closed when participants make this thread way out of hand.

Thanks.

- Maharlika -

[Zelgadis]

I think sexual history should be admited in court. It seems to me that many rape cases will come down not to physical evidence, but to one party saying the other consented and the other denying that consent. Prior sexual history and behaviour patterns of both parties would be essential to the jury in those cases, I would think.

[Lestat]

[QUOTE=Zelgadis]I think sexual history should be admited in court. It seems to me that many rape cases will come down not to physical evidence, but to one party saying the other consented and the other denying that consent. Prior sexual history and behaviour patterns of both parties would be essential to the jury in those cases, I would think.[/QUOTE]Since most rapes concern people being raped by people they know, like their partner or ex-partner, it wouldn't help.
Prior behaviour patterns are no guide to the specific case and would in fact give some sort of entitlement to people who are in a long term relationship, hence making it more difficult for a person to refuse to engage in sex if they don't want since there is a prior history, which would count against them.

It's like saying that if you get pickpocketed by a beggar, your prior history of giving money to him should count.

[Zelgadis]

[QUOTE=Lestat]Since most rapes concern people being raped by people they know, like their partner or ex-partner, it wouldn't help.
Prior behaviour patterns are no guide to the specific case and would in fact give some sort of entitlement to people who are in a long term relationship, hence making it more difficult for a person to refuse to engage in sex if they don't want since there is a prior history, which would count against them.

It's like saying that if you get pickpocketed by a beggar, your prior history of giving money to him should count.[/QUOTE]
But surely, in the example DW presented, the female's history of finding males at bars and having sex with them would be relevant to the defense of a male's innocence?

[Fiona]

I knew that many men think all women are interchangeable (it is shown in things like a statue I saw in Oporto representing the people of the city: 6 men in various occupations and one woman, for example). I did not fully realise they thought the same of themselves.

[dragon wench]

[QUOTE=Zelgadis]But surely, in the example DW presented, the female's history of finding males at bars and having sex with them would be relevant to the defense of a male's innocence?[/QUOTE]

If a woman is simply in the habit of picking up men at bars and sleeping with them, I really do not think sexual history is at all pertinent, period.
In the case I related, where the woman had threatened to press rape charges when the men she had previously picked up were not interested in an actual relationship... I was appalled, and the incident did make me pause, because I often tend to look at things from various angles. Hence why, (in addition to the coinciding "My Space" thread) I brought up this topic. A woman I had known from that period recently touched base with me, and the subject came up, it reminded me of my response at the time.
But, I am fully conscious of the dangers here. I view rape in about the same terms as I view murder (perhaps I even view it in a more severe light, there are occasions where homicide is justifiable, rape can never be justified.) A close friend was the victim of a fraternity gang rape, my mother was raped in a war trench when she was seven years old.... In my mind rape is a heinous crime and should be treated as such.
I say this because I would like to make it extremely clear I am not advocating anything here. I have always felt strongly that sexual history is never relevant in rape trials, but this case did give me something of a jolt, perhaps in part because I knew the players and became personally involved.

[Dottie]

[QUOTE=Zelgadis]But surely, in the example DW presented, the female's history of finding males at bars and having sex with them would be relevant to the defense of a male's innocence?[/QUOTE]

No, it wouldn't. Not unless you belive that woman who are sexually active does not choose their partners, which is quite absurd. Whether somone has much or little sex does not give any indicate whether they want to have sex with a specific person at a specific time or not.

[snoopyofour]

[QUOTE=Fiona]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.[/QUOTE]

Should I take it from this that you actually have a cogent argument disarming my assertion that there are women who can and will lie about having been raped? Or do you just have an affinity for ad hominem cop-outs? If it's the former then I'm all ears.

[QUOTE=Fiona]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.[/QUOTE]

Aside from not being comprehensive, the entire basis for it is obviously flawed.

"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."

I don't remember where car accidents where last ranked when it comes to most frequent fatalities but I'm going to bet it was pretty high up there. Drunk driving also constitutes a large number of deaths. And yet in spite of all this, people continue to break traffic laws and drive drunk or at hours when they know drunk drivers will be on the road. And there aren't many consequences more devastating than death. People just don't care about possibilities until they happen, and even then they aren't guaranteed to care. There are dozens of other examples. While being accused of rape isn't terribly high on the list for most men, there are obviously things that men do concern themselves over. What men do fear is being mugged or beaten or shot in the bad end of town and we adjust our behavior accordingly. We don't go running at night. We don't hang out by ourselves alone in shady spots. We carry protection (and I'm not talking about condoms) when we think we might need it. And most men who have heard the horror stories about false rape convictions have some amount of anxiety towards that as well. And once again we adjust our behavior accordingly, at least the smart ones do. We don't pick up women in bars, we don't hookup at parties, and we, interestingly enough, try to find out as much as we can about the woman's sexual history before we do anything with her. And it is "patently absurd" that rather than women taking the same or similiar measures to avoid rape, men should go to extreme ends to avoid being accused of it.

[snoopyofour]

Note: I'm not talking about the more cut and dry cases where a man physically forces himself on a woman. Sexual history would be irrelevant in such a case, any attorney worth their salt would be a fool to bring it up. Marks and signs of struggle will decide that case. And if someone is raped and they don't have a mark to show for it...well I've never met anyone who could keep their cool like that.

@ Ashen. You're probably right. I probably am insulting and even a "troll", although that term still seems rediculously immature to me. But then again, so was Socrates...and Emerson...and Mark Twain...and Langston Hughes...and Nietzche...and Voltaire...and even Jesus so you see, its going to take a little more than telling me that I'm insulting or rude for you to make me feel bad about myself.

[Dottie]

[QUOTE=snoopyofour]Note: I'm not talking about the more cut and dry cases where a man physically forces himself on a woman. Sexual history would be irrelevant in such a case, any attorney worth their salt would be a fool to bring it up. Marks and signs of struggle will decide that case. And if someone is raped and they don't have a mark to show for it...well I've never met anyone who could keep their cool like that.[/QUOTE]

Forcing someone by violence and forcing someone by threats of violence is both classified as rape.

That you have not met any does hardly make an argument for that they don't exist. That woman should be obliged to defend themselves to death and beyond is another damaging idea regarding rape cases. When it comes to robbery no courts ask victims questions like why didn't you defend yourselves, or where are your bruises?

[mr_sir]

[QUOTE=snoopyofour]Note: I'm not talking about the more cut and dry cases where a man physically forces himself on a woman. Sexual history would be irrelevant in such a case, any attorney worth their salt would be a fool to bring it up. Marks and signs of struggle will decide that case. And if someone is raped and they don't have a mark to show for it...well I've never met anyone who could keep their cool like that.[/QUOTE]

If someone is scared enough, or has strong genuine fears for their life, and they are threatened and told not to struggle or they will either die or someone in their family etc. would die then this could result in the woman not struggling, thus no marks. It is still rape though. Another situation is when a woman is drugged and then a man physically forces himself on her and she is raped. If they are unconscious then they cannot struggle, thus again no marks.

Edit: Also, a lot of men get to know the woman first before sleeping with them, or find out about their history etc., not out of fear of being accused of being raped, but because they want a relationship with that person. Just because someone chooses not to sleep around or chooses not to pick someone up in a bar does not mean they are scared of false accusations and are changing their behaviour accordingly.

[Fiona]

Should I take it from this that you actually have a cogent argument disarming my assertion that there are women who can and will lie about having been raped? Or do you just have an affinity for ad hominem cop-outs? If it's the former then I'm all ears.

I have said more than once that some women will lie as will some men. I dont appreciate you continuing to attribute views to me which I do not hold. And I am vastly amused by the accusation of ad hominem argument, coming from you :laugh:

Aside from not being comprehensive, the entire basis for it is obviously flawed.

"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."

I don't remember where car accidents where last ranked when it comes to most frequent fatalities but I'm going to bet it was pretty high up there. Drunk driving also constitutes a large number of deaths. And yet in spite of all this, people continue to break traffic laws and drive drunk or at hours when they know drunk drivers will be on the road. And there aren't many consequences more devastating than death. People just don't care about possibilities until they happen, and even then they aren't guaranteed to care.

So you contend that most people don't take steps to avoid oncoming cars? Glad I don't live where you do

There are dozens of other examples. While being accused of rape isn't terribly high on the list for most men, there are obviously things that men do concern themselves over. What men do fear is being mugged or beaten or shot in the bad end of town and we adjust our behavior accordingly. We don't go running at night. We don't hang out by ourselves alone in shady spots. We carry protection (and I'm not talking about condoms) when we think we might need it.

I must be missing something. This seems to entirely support my premise. You take steps to avoid things you fear.

And most men who have heard the horror stories about false rape convictions have some amount of anxiety towards that as well. And once again we adjust our behavior accordingly, at least the smart ones do. We don't pick up women in bars, we don't hookup at parties,

OK. If men do take such steps then that points to the fact this is a real fear, and it would be possible to use my method to compare the significance of the impact on their lives with the impact of rape on women's lives. Neither of us knows what the outcome would be, though we clearly both have a view

and we, interestingly enough, try to find out as much as we can about the woman's sexual history before we do anything with her.

It is perfectly legitimate to take any steps you like to protect yourself against a perceived risk. I am very interested in how you use this information reduce that risk, though. I wonder if you think it is safer to "do [something] with" a sexually active woman, or with one who is chaste?

And it is "patently absurd" that rather than women taking the same or similiar measures to avoid rape, men should go to extreme ends to avoid being accused of it.

It is my contention that women are very very conscious of the possibility of rape. They react at some point on a spectrum which I will call "defiance/compliance". The limits on women's freedom imposed by the possibility of rape are very great. Most women accept many of those limitations as a fact of life. Some women decide to take more risks since the restrictions are intolerable to them. Her place on that spectrum may also vary at different times in a woman's life and in different circumstances. Again I note that should she choose to take a big risk like inviting a man in for coffee, or going for a walk late at night, then she is held to be partly responsible for being raped. I would be interested to know whether a man who breaks the rules you outline above should be similarly held responsible if he is falsely accused of rape: and what penalty he should pay for his negligence?

You are still ignoring the fact that false accusations of rape are estimated at less than 10% of the total: and convictions in rape trials are also less than 10%.

Edit: I see you put yourself is some pretty exalted company. Though I rather think that Socrates et al might resent the implication that all they had in their arsenal was the kind of playground insult you employ

[mr_sir]

[QUOTE=snoopyofour]And it is "patently absurd" that rather than women taking the same or similiar measures to avoid rape, men should go to extreme ends to avoid being accused of it.[/QUOTE]

It is my experience that the majority of the women I know take a significant amount of measures to avoid rape and it is one of the things that worry them the most. For example, none of my female friends walk home alone after a night out unless they have no choice, and even then they usually call a taxi. In fact, the men are the ones that usually end up walking home alone as they walk the women home first because of this fear of being raped.

[snoopyofour]

After you're well deserved enjoyment of my accusation of ad hominem, you certainly must understand the immense amusement I got from the fact that both of these statements came out of your mouth (or rather your keyboard).

" I dont appreciate you continuing to attribute views to me which I do not hold"

"So you contend that most people don't take steps to avoid oncoming cars? Glad I don't live where you do"

If you listen closely you can probably hear me laughing. :laugh:

[QUOTE=Fiona]I must be missing something. This seems to entirely support my premise. You take steps to avoid things you fear.[/QUOTE]

No offense but I think what you're missing is my point. I also fear having my cigarettes stolen, and I adjust my behavior accordingly even though it has happened only once before. Does that mean I'll be devasted if they get stolen again? Of course not. You suggested a correlation between the level of devastation an event will cause and the behavioral steps an individual will take to avoid that event. I showed a flaw in that suggestion. As far as "the rules of engagement" go, that's all I'm required to do.

"OK. If men do take such steps then that points to the fact this is a real fear, and it would be possible to use my method to compare the significance of the impact on their lives with the impact of rape on women's lives. Neither of us knows what the outcome would be, though we clearly both have a view"

No, you must compare the impact of rape vs. the impact of being falsley accused of rape. The significance of the steps men take to keep themselves covered can only be compared to the steps women take not to be raped.

[QUOTE=Fiona]It is my contention that women are very very conscious of the possibility of rape. They react at some point on a spectrum which I will call "defiance/compliance". The limits on women's freedom imposed by the possibility of rape are very great. Most women accept many of those limitations as a fact of life. Some women decide to take more risks since the restrictions are intolerable to them. Her place on that spectrum may also vary at different times in a woman's life and in different circumstances. Again I note that should she choose to take a big risk like inviting a man in for coffee, or going for a walk late at night, then she is held to be partly responsible for being raped. I would be interested to know whether a man who breaks the rules you outline above should be similarly held responsible if he is falsely accused of rape: and what penalty he should pay for his negligence?[/QUOTE]

SHOULD?! I can't believe you would use a word like "should"...thats tantamount to me saying that I think a woman should be raped if she ever takes a stroll at night. Anyway, since I like to think this wasn't what you were implying I'll say that the penalties a man will pay if he puts himself into bad situation and is falsley accused is that he will either a: go to jail and numerous other miseries, or b: be forced to deal with the fact that he was even accused of rape (a stigma in and of itself) and (if I had my way) this case would be brought up if he were ever accused again, increasing the liklihood of his conviction.

Edit: I almost forgot. In a court, every defendant (male or female) is entitled to the best defense they can recieve. If a person's sexual history could cause their accusations to become suspect or even be a cause for greater suspision against the accused, then it should absolutely be used. Leave it to the jury to decide if it's relevant or not. This is about law, not the ratio of unconvicted rapists to convicted innocents, which, despite being incredibly depressing, has no bearing here.

[dragon wench]

[QUOTE=Snoopyofour] What men do fear is being mugged or beaten or shot in the bad end of town and we adjust our behavior accordingly. We don't go running at night. We don't hang out by ourselves alone in shady spots. We carry protection (and I'm not talking about condoms) when we think we might need it. [/QUOTE]

This might apply to you and the men in your immediate circle of acquaintance, but I truly doubt it applies to all men. I realise this is diverging a little, but I wanted to point that out. I know several men who *do* go running at night, and have no worries at all hanging about in shady spots.
More to the point, I really hope you are not proposing that rape is somehow more justifiable if a woman has went out in the dark alone. This shifts blame to the victim and it also echoes the Victorian sentiment that women were responsible for controlling the sexual urges of men.

[Fiona]

After you're well deserved enjoyment of my accusation of ad hominem, you certainly must understand the immense amusement I got from the fact that both of these statements came out of your mouth (or rather your keyboard).

" I dont appreciate you continuing to attribute views to me which I do not hold"

"So you contend that most people don't take steps to avoid oncoming cars? Glad I don't live where you do"

If you listen closely you can probably hear me laughing. :laugh:

People just don't care about possibilities until they happen

Hmmm?

No offense but I think what you're missing is my point. I also fear having my cigarettes stolen, and I adjust my behavior accordingly even though it has happened only once before. Does that mean I'll be devasted if they get stolen again? Of course not. You suggested a correlation between the level of devastation an event will cause and the behavioral steps an individual will take to avoid that event. I showed a flaw in that suggestion. As far as "the rules of engagement" go, that's all I'm required to do.

Ok. I did miss where you pointed out a flaw, and I am still missing it. You stated without evidence that one thing (being falsely accused of rape) is more devastating than another (rape and /or false acquittal of a rapist). So you accept that certain unpleasant events are more devastating than others. I suggest that the perceived horror of the particular event will be reflected in the lengths people will go to to avoid it. You clearly do not agree, but you do not show why not. On the one hand you say people will not do this (people do not care about possibilities until they happen); on the other you say you take steps to protect yourself against various possibilities. what is your position?

Assumng that on reflection you concede that people do take steps to avoid unpleasant experiences, are you really saying you take as much trouble and personal inconvenience to preserve your cigarettes as you do to avoid being mugged etc? I think you are in a minority if you do, but I could be wrong. I do not see where you have shown that my proposition would not help to resolve the relative impact of these different events: and you have proposed precisely nothing to support or even address your assertions about this. Forgive me if I do not take your bald word for it.

No, you must compare the impact of rape vs. the impact of being falsley accused of rape. The significance of the steps men take to keep themselves covered can only be compared to the steps women take not to be raped.

You made unsupported assertions about the impact of those two events. I have proposed a method whereby your assertion might be tested on the assumption that the steps taken to avoid those events can be taken as a measure of that impact as perceived by the potential victims. I did this because it is impossible to compare the impact of rape vs. the impact of being falsely accused without some objective measure. My suggestion may not measure that, I agree. Perhaps you can propose something better? If not then can we conclude that this part of the discussion cannot go anywhere and leave it?

SHOULD?! I can't believe you would use a word like "should"...thats tantamount to me saying that I think a woman should be raped if she ever takes a stroll at night.

No I wasn't implying that and I am sorry if I expressed myself badly, though I have re-read what I said and cannot see how it can be read that way. Apologies, however

the penalties a man will pay if he puts himself into bad situation and is falsley accused is that he will either a: go to jail and numerous other miseries,

See the evidence I adduced above: No, he won't in all likelihood. That is why I do not believe men are as frightened of that as women are of rape. I rather think you are begging the question

or b: be forced to deal with the fact that he was even accused of rape (a stigma in and of itself) and (if I had my way) this case would be brought up if he were ever accused again, increasing the liklihood of his conviction.

And this strikes you as reasonable?

Edit: I almost forgot. In a court, every defendant (male or female) is entitled to the best defense they can recieve. If a person's sexual history could cause their accusations to become suspect or even be a cause for greater suspision against the accused, then it should absolutely be used. Leave it to the jury to decide if it's relevant or not. This is about law, not the ratio of unconvicted rapists to convicted innocents, which, despite being incredibly depressing, has no bearing here.

You have made no case as to the relevance of sexual history, despite repeated requests to do so. You have shown no reason why a person's sexual history should cause their accusations to become supect and therefore it appears that you wish to admit them because of prejudice. (Btw, you didn't answer whether you feel safer with sexually active or sexually inactive women when you use that information to help decide whether you will be "doing something with them"). There are many things which could be brought in to any case which could predictably prejudice a jury and which are therefore inadmissable. This does not undermine the principle of best defence at all. It is irrelevant to a charge of burglary that a man is paedophile or a bigamist and I do not see any justice in giving a normally constituted jury that information when they are asked to decide about breaking and entering. It is possible they would quite properly dismiss it as irrelevant. It is also possible they will be swayed by distaste for his character. Why risk it? The figures for conviction of rapists are entirely relevant here, since "myths" about rape and about women's general behaviour are a factor in the attrition of such cases

[snoopyofour]

And I know girls who leave their drinks unattended in bars, what's your point? This probably means he hasn't gotten mugged or threatened at gunpoint yet, otherwise he'd be a little smarter. Or hell, maybe he just lives in a town where he doesn't have to worry about those things. I wish I did.


[QUOTE=dragonwench]More to the point, I really hope you are not proposing that rape is somehow more justifiable if a woman has went out in the dark alone. This shifts blame to the victim and it also echoes the Victorian sentiment that women were responsible for controlling the sexual urges of men.[/QUOTE].

It's as if you think that rape is this totally unique thing that somehow completely distinquishes from every other painful experience people can have. I'm just going to use examples because I don't know how to make this clear without them. Ok, I go to work and leave my car unlocked. Someone comes and steals my cd's. Is it more justifiable? No. Do I take some responsibility? Absolutely. If I go for a midnight stroll in Central Park and get mugged is it more justifiable? No. I'm I partly responsible? Of course. Do you see what I'm getting at? Women can't absolve themselves of any responsibility for protecting themselves simply because men don't really have to worry about the same thing. Of course it isn't fair but that doesn't matter. I'm not really too hot about having one of my more sensative organs hanging outside my body where any jerk can take a shot at them. But if someone I know doesn't like me comes up to me and starts to pull their foot back, you can bet that I'm going to do something about it. Now if you get hurt in a situation that you could have, with the slightest bit of intelligence, avoided, then certainly blame your assailent but blame yourself too. If you can't take some responsibility when you put yourself at risk then you truly are lost.

[Dottie]

@Snoopyfour: Then we are back at where Chu and I where 2 pages ago: You can take many or few risks in your life, I think everyone agrees with that, but can you explain why a victims risk-taking behaviour is relevant to a rape case in court?