Allegation Nation

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New at Reason: Cathy Young wants Kobe to get a fair trial.

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  1. I don’t consider a persons sexual history an attack on the accuser’s character. It’s simply a statement of fact. Whether it’s to the advantage of the prosecution to introduce it, a la fyodor’s point, or the defense as is more usually the case, is not really relevant. I’m not comfortable with excluding facts from a criminal trial, however unpleasant those facts may be – trials are not about being nice. Judges have leeway in what facts are allowed at trial and they should have leeway here as well. I would simply submit that a persons sexual history can be relevant in a sexual case even where it doesn’t pertain to “who acually caused the injuries” – to whose advantage is for the jury to decide.

    A couple of responses to thoreau:

    The argument about rapists choosing victims doesn’t really hold water. An analogy – albeit an imperfect one – serial killers prey on prostitutes and people no one will really notice are gone – does that justify laws against prostitution? Prostitution makes it easier for serial killer to pick their victims, just as disclosure in trial may make it easier for rapists to pick victims… (though I might argue that other factors are much more important in who a rapist selects as victims)

    An accuser in a criminal trial most certainly DOES deserve to have their credibility questioned. Otherwise, why hold the trial at all? If the defense is not questioning the credibility of an accuser, just what the hell are they doing in court?

    I’ll leave it at that for the time being – have get back to coding and data analsis! Don’t get paid to blog…

  2. One more; then back to work, honestly.

    I just saw sarah’s post after finishing response. That is a huge straw man. You don’t address anything, just try to belittle someone making a point you don’t seem to agree with. Rather than make a cogent point, attack with a snide comment.
    Very clever. Yes, everything I’ve posted boils down ‘you can’t rape a slut’; You’ve argued me into a corner.

    BTW, if you’re comment is not addressed at my posts I’ll apologize now!

    Back to work.

  3. Karl-

    I have no problem whatsoever with questioning an accuser’s credibility. If there’s evidence that calls credibility into question, bring it forward.

    But bringing forward sexual history does nothing to question credibility unless

    1) the accuser has a history of making false rape allegations

    or

    2) the accuser had sex with other people close to the time of the alleged rape, and those specific sex acts provide alternative interpretations of the physical evidence.

    Otherwise, sexual history embarasses the accuser without actually providing any useful information on the accuser’s credibility. When the defense wants to bring such evidence forward, the judge should refuse to let them present it unless they have a good argument for why the evidence is actually relevant (e.g. the 2 circumstances named above).

  4. I take the point of Sarah’s post to be to explain why, as Karl says himself, “it’s to the advantage of the prosecution to introduce [sexual history]… usually” even though, as I explain myself, there’s no rational reason to assume it makes guilt more likely.

    If Karl is simply arguing that judges should have more leeway on this matter or in general, then he should see that I have already agreed with him.

  5. Here’s a thought:

    Suppose somebody shoots another person and claims it’s self defense. Could the defense introduce evidence that the victim owned lots of guns and was therefore more likely to be a violent person? I imagine that any defense attorney trying such a tactic would be soundly denounced here. People would (quite correctly) point out that owning guns doesn’t mean a person is violent, the only question is how the person used the guns.

    Likewise, how frequently a person has sex has no bearing on whether or not she/he is lying about rape. A person who frequently has sex and has never before accused anybody of rape could be considered more credible by some theories, since she has a long track record of not making such allegations, hence it’s unlikely she’s suddenly started making them up. Or, one could argue that she’s less credible because she has a long track record of consenting and it’s unlikely that she’d suddenly stop consenting. Both theories are pure speculation, and have no place in a trial.

    Anyway, I figured I’d bring the subject to guns because that is one freedom that enjoys unanimous support here.

  6. It’s not that you can’t rape a slut, but rather that a person who screwed 152 people last year, probably doesn’t have a “no” in his/her vocabulary. Add a history of false accusations and general instability, and I, as a juror, would have a hard time sending the accused to prison for 20 years.

    What if Kobe is entirely innocent? Now he is the victim of a sexual assault fraud scheme. Why would someone like Kobe bother trying to force himself on a particular unwilling woman when he could just as easily pick out a willing one, probably that same night? (Oh, I didn’t really say that!)

  7. This is going to be just like the Mike Tyson trial, eh? No definite conclusion, but a definite outcome.

  8. Joe2-

    The fact that the woman’s clothing contained evidence of very recent sexual encounters with 2 other men is indeed very relevant. The physical evidence supposedly indicates that she was injured during coerced sex. The defense could make a good point by arguing that the coerced sex could have been with one of the other 2 men rather than Kobe, or suggest that the physical injuries were the result of repeated consensual sex rather than coerced sex.

    Those conflicting theories would have to be sorted out based on evidence and expert analysis, hence we have courts. So I freely grant that her immediate sexual history is relevant since it pertains to the physical evidence.

    But how many people she had sex with in the past, outside a window that would be relevant to the physical evidence, makes no difference if there’s no history of false allegations. So unless there’s a history of false allegations connected with her sexual habits, her sexual habits (outside a certain time window dictated by the physical evidence) are completely irrelevant. Even if she had sex all the time, you could say “slut” just as easily as “see, she doesn’t normally accuse people of rape, clearly something happened here.” Since both spins are just speculation they have no place in court.

  9. “Date” rapes of the sort Kobe is accused of are difficult crimes to prove since the same act can be legal or illegal depending on what one of the parties says.

    Why not tell women that if they go to a man’s hotel room (dorm room, house, etc.) and don’t want to have sex, they should consider that there’s a small chance the man may rape her and probably get away with it.

    The coolest case of someone getting busted for date rape was Andrew Luster who videotaped the rapes he perpetrated after the victim was incapacitated by alcohol (“the other date rape drug”) and GHB and also admitted to the act to one of his victims over the phone with a police detective taping the conversation.

  10. thoreau,

    If one were arguing for open info in trials in general, one would respond that it would be fine and dandy to bring up the gun collection but hopefully the jury would see that it was a stupid and irrelevant issue.

    But if a judge has an obligation to exclude info HE determines to be irrelevant, then I would agree the collection should likely be excluded. But if I were arguing Karl’s case, I might say there’s a closer correlation between sex with and without consent than between owning guns and using them for murder. But again, rape is so damn unique, hard to come up with anything close to a decent metaphor. That was a good try, anyway! 🙂

    Joe2,

    The opening comment in your first post seems self-contradicting. If having lots of sex (please remember that the number of 152 was picked, presumably, as an absurd extreme to clarify a point) means you can’t say no, then Sarah is absolutely right and you can’t rape a slut. As for Kobe not needing to rape someone, the thought’s crossed my mind, but who knows. Hopefully the jury will reach the correct verdict, whatever that is.

  11. I’m not a lawyer, but I’ve always been of the impression that judges have some discretion to decide what will get admitted into evidence. From what I understand they aren’t supposed to decide if the evidence does support a claim, just whether the evidence might support a claim. (Legal experts can tear apart my phrasing, but I think you get the point.)

    For instance, if a witness’s credibility where questioned, and the defense said “We want to bring evidence that the guy lied under oath previously” the judge would say OK. But if the defense said “We want to bring evidence that 20 years ago the witness lied to his girlfriend and said he was studying when he was really at a party” the judge would probably demand that the defense find something more recent.

    Basically, as I understand it the judge is trying to make sure that both sides stick to stuff that actually matters.

  12. thoreau! I’d think you’d be above such obfuscation: “Suppose somebody shoots another person and claims it’s self defense. Could the defense introduce evidence that the victim owned lots of guns and was therefore more likely to be a violent person?”

    It’s not the *having* of the guns; if said person had a history of *shooting* said guns at people…

    I.e., as I said, it’s not the *having* of the guns (or the… ahem… equipment), it’s the, hmmm, I suppose you could call it type and degree of past usage. Y’know what I mean?

    jean

  13. I agree, the *having* of guns is irrelevant, only a history of shooting them at people.

    Likewise, the *having* of sex is irrelevant, the only thing that matters is whether she has a history of falsely accusing sexual partners of rape.

    There was no obfuscation on my part. I deliberately presented a bad argument and then compared it with another argument heard in this thread: That rape allegations should be considered suspicious if a woman frequently consents to sex. I knew that people would object to my bad argument about blaming a victim because he owns guns. I just hoped they’d see that it’s equally unfounded to cast doubt on a victim who frequently consents to sex because she alleges that this time she didn’t consent to sex.

  14. Looks like it’s not all roses if you’re a rich and talented athlete!

    So Kobe, or any other famous and wealthy person, knowing that people will be trying to scam him out of money all the time, could:

    1)Only have sex with his wife.

    2)Only pay for really hot prostitutes since he can afford it.

    3)have a pocket full of little contracts he just needs to get the girls to sign, absolving him of rape. If they’re really down to party with him, and not just to get a notch on the bedpost I bet most of his willing bedmates would be willing to sign as well.

  15. “Why would someone like Kobe bother trying to force himself on a particular unwilling woman when he could just as easily pick out a willing one, probably that same night?” In my experience as a girl, Men who can “get it” tend to become even more aggressive when you say no.

  16. jean,

    that’s a terrible analogy. it would be better to compare the promiscuous woman to someone who owns lots of guns and often fires them at a shooting range. it has nothing do to with whether the gun owner might be violent, just as a history of lots of consensual sex is totally irrelevant to whether a woman would falsely accuse someone of rape

  17. Spot on.

  18. I agree — I like the way Ms. Young sees things.

  19. Just to be fair…

    …disclosed that the young woman had had sexual intercourse with two other men in the three days preceding her encounter with Bryant…

    I thought that the question was asked whether the injuries were consistent with someone who had had that degree of intercourse (possibly to present an alternate explanation for the injuries), but not that it had actually happened (it may have, I dunno).

    Regardless, I agree with Young. I think far too many feminists view the criminal justice system as a formality, such that mere accusation is proof of guilt, but only in cases where a man stands accused of doing something to a woman (Lorena Bobbit, she was just a poor victimized woman defending herself against The Penis) Are feminists really trying to squeeze out the “why would a woman lie about this sort of thing?” reasoning? What a disempowering campaign if so. Easily answered, though: because women do not enjoy some magical monopoly on truth…they are no more honest or trustworthy than men, and are just as willing to compromise justice in the pursuit of a personal goal or vendetta as men are. Women like Allred vindicate the heavy ridicule levied on lawyers and feminists alike. The notion – coming from a lawyer – that innocent until proven guilty does not establish a moral equivalency that must be disproven, rather than a moral inequality that must be proven, is laughable and I truly wonder how she got her JD.

  20. Please don’t quote the Oliver Jovanovic case. I knew the guy and have complete faith that he’s guilty, AND will hurt someone else worse in the future, unless he actually reformed during his (too-brief) sentence.

  21. Good article, although she pushes one of my peeve buttons when she says:

    But it’s at least as terrifying to imagine that you, or your husband or brother or son, could be accused of sexual assault and denied access to relevant information that could make the difference between guilt and innocence.

    The guilt or innocence of the defendant have nothing to do with what goes on in the courtroom or whether the defendant has access to relevant information. I believe what Ms. Young means to say is the difference between conviction and acquittal, or perhaps the difference between a verdict of guilty or not guilty.

  22. have complete faith that he’s guilty

    Forgive me my doubt, but how do you know he was guilty? For instance:

    “She has made false accusations before, and this is another one of them,” said Fay Webster, the accuser’s grandmother. “Enough is enough. I think the Manhattan District Attorney’s Office should drop this case.”

    In January of 2000, the accuser’s own family attended a press conference with Jovanovic and made the above statement. But somehow you have some knowledge of his guilt?

  23. I actually sympathize a little with the feminists’ concerns, even though I disagree. (Sympathize with people and still disagree? We can’t have that kind of nuanced thinking in a blog! 😉

    It’s pretty easy to go from “Yes, the injuries are consistent with forced sex, but she had sex with 3 men, so how do we know which one forced her?” to “She had sex with 3 different men, isn’t it strange that she only objected when the man was a celebrity that she could sue after crying rape?” Or at least it’s easy to segue into the second innuendo. The second innuendo is just that, an innuendo.

    Cast doubt on her accusation with physical evidence (e.g. the physical evidence says that any one of these three men could have raped her), not innuendos about character. Or if you want to attack character, do it with evidence (e.g. she has a history of false accusations against people), not innuendos like “How convenient that the only time she objected to sex was when the man was rich so she could sue him.”

    I’m not saying the defense has raised those innuendos (I honestly don’t know if they have, since I don’t follow this trial as obsessively as I followed OJ so many years ago) but since it would be so easy to segue into those innuendos I see the need to protect the victim. I just think that it’s also easy to go too far in the name of protecting the victim. And barring physical evidence of sexual activity that could exonerate the defendant is going too far

  24. Please quote the Oliver Jovanovic case. I knew the guy and have complete faith that he’s innocent, AND wouldn’t hurt anyone in the future, plus he actually is scared shitless from his (too-long) sentence.

  25. Something has always seemed a little wrong with the assumption in the article and articulated much more thoroughly by thoreau (10/28 11:04AM) regarding the ‘sexual history’ of the alleged victim in a rape case.

    I have difficult time not believing it is relevant to the defense to raise the issue. If a persons personal pattern of behavior is to sleep with three different partners every week (to take an extreme example) vs. one who is in a steady relationship, doesn’t have multiple partners in a short period of time, doesn’t that have some relevance to the issue of consent? In other words, if the victim consented 152 times to sexual encounters last year with 152 different people (remember, it’s an extreme case to try and make a point!), doesn’t that favor a defendants position that the act was consensual compared to a more chaste alleged victim? It is most assuredly not a sufficient cause to dismiss the accusation, especially in the face of physical evidence. But it is a data point – I would submit that the person who has multiple partners in short periods of time is more likely to have consented to the act than the one who does not. Again, it is not sufficient nor even of very high weight; but it is relevant. I don’t think it’s an innuendo about character – just a statement about a pattern of behavior that may be relevant.

  26. Re: doesn’t that favor a defendants position that the act was consensual COMPARED to a more chaste alleged victim?

    Emphasis added of course. To which I ask, why the comparison? The point of a legal proceding isn’t to compare the likelihood of guilt with other hypothetical situations, but rathe to determine the guilt of the defendant based on available relevant information. I believe the purpose of excluding the sexual history of the alleged victim in lieu of a history of false allegations is that it is believed that it would influence the jury on an emotional level in ways that have no direct bearing on the facts of the case. Having said this, I would think such matters should be decided by individual judges rather than legislative fiat so that they can be more flexible and judge the matter based on the merits of each individual case. I should also add that I was shocked that the prosecution in the Timothy McVeigh case was allowed to show dramatic footage of the carnage caused by the explosion he was accused of causing. Not that I’m doubting his guilt per se, but that’s just the kind of thing I wouldn’t think should be allowed in the court room as its emotional impact is greater than its factual impact, i.e., they didn’t need to show all the details to determine that a crime had been comitted!

  27. fyodor:

    Ok, I’ll drop the ‘compared’ and pose it this way:
    Suppose a person consents to sexual activity with a stranger 152 times in a row. Baring evidence to the contrary, is it not common sense that the 153rd time was also likely consensual? If we’re playing roulette, the next number as 0 dependence on the previous history of the wheel – but with people, previous history is an indicator of future behavior. I’ll emphasize again that it’s not *sufficient* to prove innocence; but I don’t see how it’s not relevant. Perhaps leaving it to individual judges would take care of cases where is was not neccessary to introduce, eg. lots of physical evidence or witnesses one way or the other. But I’m simply having a hard time wrapping my head around the concept that a persons past behavior has no relevance or offers no insight into how they might behave in a given situation.

  28. Karl,

    But if there’s no evidence that the person in question ever accused any of the other 152 of rape, that history could just as easily be evidence that making an accusation of rape after sex is NOT part of that person’s pattern of behavior. (Conversely, perhaps someone having a very rare instance of nonmarital sex might be more inclined to cry rape to cover up her embarrassment over a mistake, something I may have witnessed happen once.) That said, I admit to getting a bit of the willies any time information of any sort is suppressed (especially by the broad and blunt brush of a legislative action that can’t be changed until another legislature votes again to overturn it), as it could be argued that it should be up to the jury to decide whether your argument or mine is the more persuasive. But then, if a judge decides that most people are biased to take your POV on the matter (which I submit for the reasons just stated is NOT inherently more rational), I would respect his decision not to allow such info in his court.

  29. Here’s why it isn’t relevant whether a person normally has lots of sex (unless specific sex acts may establish doubt as to who actually caused the injuries, etc.):

    If we make sexual history a relevant factor, then it will be easier for a real rapist to evade justice if he picks his victims carefully. In essence, some people who have done nothing illegal or dishonest (i.e. women who frequently consent to sex with other adults for reasons that are entirely their own) will enjoy less protection under the law than other people who have done nothing illegal or dishonest (i.e. women who consent to sex less frequently).

    Now, I’m not about to suggest some sort of “equal protection” case that should go to a panel of activist judges. I’m just suggesting that we shouldn’t try to undermine the credibility of a citizen who has’t done anything unlawful or dishonest when that person alleges that she was harmed by another person. The only people who deserve to have the credibility questioned are people who have done dishonest things (e.g. people with a history of false accusations), or perhaps people with mental impairments that call the validity of their recollections into question (but I suspect that the later category is a very small one).

    Mind you, I’m not saying that there should be a presumption of honesty either, and that an accusation is sufficient evidence. I’m just saying that the accusation should only be contested with evidence, not with unwarranted attacks on the accuser’s character.

  30. I would like to amend my previous post by saying that it makes sense for a judge to bar any information that biases the jury on an emotional level more than it informs them regardless of the direction of that bias.

    Thoreau’s point is interesting. But I wonder, is legal behavior of a victim always inadmissable for the purposes of establishing a pattern? Damn, rape is so different from just about any other crime that it’s so hard to draw comparisons from more “common sense” examples!

  31. You can’t rape a slut am i rite?!?!

  32. How did Young do on O’Reilly, BTW?

  33. I wish the media would use the term “accuser” (instead of “victim”) until the trier of fact reaches a verdict. After the defendant is found guilty, the media could switch to “victim.” If the defendant is found not guilty – the media should call him or her the “victim.”

  34. Thoreau has made some good points and I’ll have to think a bit more deeply about my position (see how much more effective that is than snide comments, sara?). The magic ‘152’ number could be used either way and as such may have no probitive value. Then again, such things rarely occur in a vacuum of other information. If someone has consensual relations with 152 fellow barflies and alleges rape on 153, who happens to be rich, famous, and rich… Is that fact relevant? Does it add any probitive information to the inquiry? On the face of it (read: gut feeling) it might. I think I’d concede that, absent other, information, sexual history is probably not relevant. In context though, I don’t think it’s entirely useless or so prejudicial so as to exclude it automatically.

    I’ll leave the gun, having the equipment, history of use, comments alone!

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