Defendant Says He'd Never Try to Have Nonconsensual Sex; Is Accusation from When He Was 15 Admissible in Response?

Bonus fact: The majority opinion was written by a male judge, joined by three female judges (one of them a former sexual assault prosecutor). The dissent was written by a male judge.

|The Volokh Conspiracy |

Justice Dirk Sandefur's majority opinion (jointed by Justices Laurie McKinnon, Beth Baker, and Ingrid Gustafson) in State v. Pelletier, decided Oct. 6 but just posted on Westlaw, involved a classic he-said/she-said dispute in a sexual assault case. Both the defendant and the alleged victim agreed that they had sex, but disagreed about consent. In the process, defendant claimed that he wasn't the kind of man who would have sex with a woman without her consent:

At trial, Pelletier testified … that M.V. was fully conscious throughout their sexual encounter and that it was completely consensual. Upon acknowledging to defense counsel that some of the details he gave to police in his post-arrest interrogation were not entirely accurate or consistent with his trial testimony, Pelletier explained: "I think—because of being surrounded at my house unexpectedly by the U.S. Marshals, … I know it was because of being slandered and charged with this charge because it's … one of the worst things that a man can get charged with. And I'm just not that kind of guy. I would never do that to a female. So it was kind of … disturbing."

On the record outside the presence of the jury, the State subsequently stated its intent to cross-examine Pelletier regarding the fact that a 14-year-old female acquaintance alleged to police in 2003 that the 15-year-old Pelletier subjected her to sexual intercourse without consent. The SIWC [sexual intercourse without consent] allegedly occurred after the two had engaged in consensual sexual foreplay and Pelletier ignored her command to go no further.

The State asserted that the mere fact of the 2003 allegation was relevant to rebut his testimony on direct that he was not the kind of person who would engage in non-consensual sexual intercourse and "would never do that to a female." The State reasoned: "He put his character at issue and said that he was not the kind of person that would engage in this kind of offense. It is basically the whole defense. So it's absolutely probative of the issue."

Over Pelletier's relevance and prejudice objections, the District Court ruled his testimony that he was "not that kind of guy" and "would never do that to a female" put his good character at issue, thereby opening the door under M. R. Evid. 404(a)(1) to cross-examination regarding the 2003 allegation for the purpose of rebutting his good character testimony….

The majority concluded this evidence shouldn't have been admitted. The evidence here was "character evidence"—"[e]vidence regarding [a] [person]'s general personality traits or propensities, [whether] of a praiseworthy or blameworthy nature; evidence of a person's moral standing in a community." Such evidence is generally inadmissible "for the purpose of proving that the person acted in 'conform[ance] therewith on a particular occasion,'" but is admissible when a defendant claims "a pertinent good character trait inconsistent with the alleged offense." "However, by doing so, the defendant thereby 'opens the door' for the State to present otherwise inadmissible cross-examination or extrinsic evidence regarding specific instances of prior conduct relevant to impeach or rebut the subject good character testimony."

Here, the court agreed that the defendant had opened the door for the evidence about the 2003 allegation—but concluded that, under the circumstances, its relevance was very slight, and substantially outweighed by the possibility of unfair prejudice:

[T]he unsubstantiated 2003 SIWC allegation would arguably have had at least some probative value to rebut Pelletier's self-serving good character testimony under the particular circumstances in this case if in fact true. However, the truth of the 15-year-old allegation was not ascertainable without conducting a distracting mini-trial for that purpose within the larger trial of the charged offense…. [T]he unsubstantiated 2003 allegation thus had no non-speculative probative value for the offered purpose of rebutting his asserted good character.

Further, while generally going only to the weight of evidence rather than its admissibility, remoteness in time may nonetheless, depending on the nature of the evidence and purpose offered, diminish the probative value of other acts evidence on Rule 403 balancing. Here, taking the 2003 allegation as true, arguendo, the prior incident occurred when Pelletier was a 15-year-old adolescent rather than the mature 30-year-old adult he was at the time of the charged incident in 2018. The significant difference in maturity level between a 15-year-old adolescent and a 30-year-old adult at least significantly diminished any probative value that the 2003 allegation might otherwise have had, if taken as true, as propensity evidence of Pelletier's character in 2018….

On the other side of the Rule 403 balance, prior bad acts evidence is highly prejudicial by nature due to the great risk that it will emotionally provoke the jury to desire to punish the defendant for prior bad conduct or, at least, give the prior bad acts evidence undue weight over the actual case-specific evidence of guilt or innocence centrally at issue. Here, the inherent danger that the jury would give the prior bad acts evidence undue weight over the actual case-specific evidence of guilt or innocence was particularly acute due to the largely, if not exclusively, he-said/she-said nature of the evidence and the fact that the ultimate determination of Pelletier's guilt or innocence thus depended on jury assessment of the relative credibility of the principals' starkly conflicting accounts of the disputed events.

Justice James Rice disagreed:

A defendant should not be able to proclaim his virtuous character is being slandered by the charges with impunity, in the face of appropriate evidence to the contrary. Here, the Court permits Pelletier on re-trial to freely pontificate about his being "slandered" by the charges because he would "never" commit such an act, knowing he is insulated from the State's rebuttal of his testimony by reference to the prior investigation into past similar conduct.

As for the potential for a "mini-trial," while perhaps not preferable, it is not barred as a matter of law, and a district court will well understand that potential when determining to admit the evidence. Pelletier elected to pursue a character defense, and had multiple options in response to the State's question: he could have objected to the sufficiency of the foundation; elected not to answer the question under Rule 608 (character testimony by the accused "does not operate as a waiver of the witness' privilege against self-incrimination"); contested the validity of the report; or emphasized that he had been cleared in the investigation.

All of these, including the time necessary to contest the validity of the prior bad act, are superior to permitting a litigant to offer a character defense that is shielded from relevant rebuttal evidence.

For those who are interested, here are more details on the facts of the criminal case (not the 2003 incident):

By Information filed August 23, 2017, the State charged Pelletier with subjecting a 20-year-old female (M.V.) to SIWC in his downtown Missoula apartment on July 6, 2017. Prior to the alleged offense, M.V., her boyfriend, a girlfriend, and a female cousin were drinking "Fireball" whiskey from a bottle at Caras Park in Missoula around 11:00 at night. Extremely intoxicated following several "giant swigs" of whiskey, M.V. walked with her girlfriend down to the bank of the Clark Fork River to put their feet in the water. Fully clothed, M.V. waded out further and later came out soaking wet from head to toe. When the group started back to the tent area of the park, M.V. ran ahead and was not present when the others arrived. After searching for several hours in downtown Missoula, they were unable to locate her.

At some point around or after midnight, Pelletier was on the sidewalk outside his downtown apartment when he heard somebody vomiting in the city parking garage across the street. He later found M.V. vomiting in the parking garage stairwell and asked if she needed assistance. He recalled that she declined his initial offer of assistance but ultimately accepted a subsequent offer to come over to his apartment for some food and water to help sober up. After walking over to Pelletier's apartment, M.V. showered and, according to his account, drank some water and had something to eat. The accounts of M.V. and Pelletier varied sharply from there, but both agree that sexual intercourse eventually occurred.

At trial, M.V. testified that she had little or no recollection of what happened after she left the park. She said that her next recollection was waking up confused in a strange apartment with an unknown man on top of her with his penis in her vagina. She testified that she then passed out and had no further recollection until the next morning when she was sitting on a bed in her panties and bra, with a naked man standing in front of her trying to put his penis in her mouth. She testified that she immediately pushed him away and that he became "flustered" and "panicked." She said she then asked who he was, where she was, how she got there, and where her clothes were. She testified that Pelletier told her that he found her in the parking garage covered in vomit and that he walked her to his apartment to help. She said that he then retrieved her clothes and she found her pants to be soaking wet and her sweater covered in vomit.

M.V. testified that, at that point, she was still confused, scared, without her cell phone, and told Pelletier she needed to leave to go to work. She said that he offered to walk her to the bus station and that she consented because she was afraid to say no. She then walked with him to the nearby station where he wrote his telephone number on her arm and bent in to hug her goodbye. She recalled not wanting him to touch her, but politely reciprocating with one arm. She further explained: "I was confused at the time, and I didn't know what was going on and so I thought what had happened, like, was my fault, and that I wanted it to happen."

She said she just wanted to go home and got on the bus with the feeling that she was in "a bad dream." Upon arriving at her apartment, M.V. told her roommate that she had just been raped. At 8:33 a.m., she sent a text message to the girlfriend who was with her at Caras Park the night before. The text stated that she was raped, could not recall what happened, and asked the friend what happened.

Later that day at her apartment, M.V. discussed the events of the night before with her boyfriend and the friend who was with them. At her boyfriend's urging, she accompanied him to the police station around 5:00 p.m. to report the alleged rape. After taking her report, a police officer took M.V. to a third-party sexual assault examiner. At trial, the examiner reported observing tenderness and redness about M.V.'s vulva—conditions often indicative of forced penetration, but not necessarily inconsistent with consensual intercourse. Subsequent DNA analysis of a vaginal swab taken from M.V., and a saliva swab later obtained from Pelletier, confirmed the presence of his semen in her vagina the day after the incident.

Upon subsequent police inquiry, Pelletier admitted that he had sexual intercourse with M.V. but asserted that it was consensual. He initially asserted that she initiated the sex by kissing him and that he sought and obtained her consent before engaging in intercourse. Later in the interview, however, he inconsistently stated that he awoke in the night with M.V. on top of him engaged in intercourse. At trial he testified that, after having something to eat and drink at his apartment, M.V. was "flirting" with him before laying-down on his bed in her bra and panties and passing out. He said that he covered her with a comforter and got into bed with her and went to sleep. He testified that, after waking in the morning, they briefly spoke which led to kissing and then consensual intercourse. He said he later walked her to the bus station "to be a gentleman" and wrote his number on her arm, but did not hear from her….

UPDATE: I originally used "rape" instead of "have nonconsensual sex" in the title, because I'd characterize what the defendant was accused of (not what he says happened, of course) as rape. But on reflection, I thought I'd use the more general term, which reflects the specific statute here ("sexual intercourse without consent").


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  1. SIWC? Oh ffs.

    1. Made me wonder too. Is that a lesser form of rape? Rape without a weapon? Unconscious rape?

      Are there lesser forms of assault, if you punch someone who is alseep or passed out drunk? BWC? AWC? How about murder, or pickpocketing?

      I remember knowing AWOL (Absent WithOut Leave) as a kid, and later finding it had changed to UA (Unauthorized Absence). What was the point? AWOL is pronounceable and unmistakable; was that the problem?

      1. Memory is that UA included things that AWOL did not.

        I’m guessing — just guessing — that SIWC includes all forms of penetration, including the two sodomies.

      2. So I looked up the criminal code in Montana and it doesn’t seem to use the word rape at all. And though I don’t have time to delve into their criminal code’s history I do have a thought as to why it might be like that.

        So, at common law rape was generally thought to be a man having sexual intercourse with a woman, not his spouse, by force. Courts often required evidence that the woman engaged in utmost resistance. This definition is obviously incredibly under-inclusive. One reason for that is that some sexual acts were already prohibited whether consent existed at all: i.e., sodomy, either same sex or opposite sex.

        In the 2nd half of the twentieth century reformers removed criminal laws prohibiting sodomy and updated their sexual assault laws to be more inclusive of varying types of non-consensual sexual contact. Perhaps wishing to avoid confusion with outdated common law definitions entirely, they just abandoned them and came up with terms they considered more inclusive.

        Some states of course, simply updated the statutory definition of rape to be more inclusive. But even then, other states still have some vestigial remnants of common law thinking. For instance, Alabama still requires a rape to be committed against the opposite sex.

        Of course, the popular understanding of the existence of a crime called rape never went away, and if anything it is now popularly understood by a lot of people as being far broader than the common law definition. Therefore the Montana code and similar ones in other states seem too euphemistic.

        1. And then the feminists wanted to be able to charge a man with raping his wife, which the common law didn’t consider possible.

          I have a problem with this because in the era of no-fault divorce, if she hasn’t at least filed for one, “I do” means “I do.”

          1. Well that was vile.

            1. Just stay out of these threads. Nothing is to be gained dealing with these retrograde ragers from a bunch of women-haters wallowing in confirmation bias. I say just let them spin out and observe how far they go.

              1. Yep, it will be interesting to see how the “war against boys” ends…

                I think a lot of women will die old & unwanted.

                1. Of course you’re an incel.

                  1. “Of course you’re an incel”

                    You remind me of the post-911 thugs who were beating up Sikhs without being bright enough to realize that Sikhs aren’t Muslims.

                    Not just prejudicial bigotry but STUPID prejudicial bigotry.

                    1. All personal remarks are a signal of surrender in the traverse.

                  2. Of course you’re an incel.

                    The childish stupidity of that retort is even funnier when one thinks about how you love to finger-wag and chide others for name-calling.

                    1. I think a lot of women will die old & unwanted.

                      This is a core of what group’s belief?

                    2. “This is a core of what group’s belief?”

                      Exclusively one group?
                      Does that include CBS news?

                  3. Yah, I’m a bit surprised. Its no secret I don’t find Sarky to be among the most insightful people in the world but I never really took him to be one for juvenile namecalling you’d find on random internet forums. You must have really gotten under his skin Ed.

                    Not to mention its an insult that doesn’t even make sense. What does an opinion on feminism have to do with your private sex life? If it was related wouldn’t the guy that tries to please and white knight for feminists be the one thats more likely the desperate virgin than the guy that antagonizes them? Its like calling someone a trump supporter cause they’re vegan lol. Also aren’t the libs the ones that are adamantly against this sort of thing? Are we allowed to retort that feminists need to get a d^&* in them everytime they open their mouth?

                    1. “Not to mention its an insult that doesn’t even make sense. What does an opinion on feminism have to do with your private sex life? If it was related wouldn’t the guy that tries to please and white knight for feminists be the one thats more likely the desperate virgin than the guy that antagonizes them?”

                      There’s some logic here, somewhere, but it just won’t show itself. Why not just stick with “Nuh-uh, cuck!” like your allies?

                2. Machines are always 100 times better. Compare commuting to work in a snow storm on a horse to a car.

                  Sex robots will be the same. All lawyers are feminists, and a relationship with any American woman is out of the question. The legal system is totally run by the feminist lawyer to plunder the assets of the productive male. It is a nightmare legally. Perhaps, a recent immigrant will still be human. Trump has understood that in his choice of wives.

                  Biology has not yet been changed. Females bring reproduction to the relationship. That is the sole purpose of life. It is a gigantic asset. Males must be superior performers to just begin to comply with the Equity Theory. Even in female interests, almost all the leaders, innovators, and achievers are male. The female leaders were tomboys. It has to be that way, and feminists are in denial of that reality. OK, woman can be in combat, since combat now means running a console commanding robots and drones. Hand to hand combat is really stupid for males and females. I agree.

                  Why do women want to imitate the inferior position of the male in the Equity Theory? They do not. Feminism is a lawyer masking ideology running a bunco operation to plunder the assets of productive males. Deter the most toxic occupation of our nation. Stop these internal enemies to save our nation.

                  So, balance must be restored by crushing the lawyer profession. If you want to go fast, not slowly, arrest the 25000 members of its hierarchy. They are all criminals. Put them in prison. To deter.

                  1. a relationship with any American woman is out of the question.

                    For their sake, I hope you’re telling the truth…

                    1. Nosci. Thanks for being the only one actually stupid enough to reply to me. I appreciate it.

                  2. Compare commuting to work in a snow storm on a horse to a car.

                    Let me see — four 6″ steel shoes cutting down through the snow & ice versus rubber tires forming black ice? And on the way home, an animal that can *smell* the barn versus blizzard-obscured headlights?


                    1. Or compare commuting to work in a snow storm to using Internet telepresence instead of commuting.

                    2. What did you drive to work last snow storm?

                    3. James makes a good point, work on the internet is 100 times better than driving a car to a stupid office. The costs of a car, of a building, the physical dangers and fear, the time consumed are ridiculous.

                    4. “What did you drive to work last snow storm?”

                      I have a 4wd pickup truck. But I also don’t live in a place that gets a lot of snow, so it’s been a while since I last drove to work in a snowstorm. I wound up stuck on a freeway for almost 8 hours because of the idjits that took their cars on the flyover exits, spun out, and got stuck, which kept the city from putting either sand or de-icer on those same flyover ramps. When they finally towed those cars out of the way around 2am, it was almost spooky crossing the Willamette river on a six-lane freeway bridge with the wind blowing and the snow still coming. Then, I was able to use my superior knowledge of the surface streets to navigate around another set of blockages. Then, like everybody else in the city, I took the next day off to wait for the snow to melt.

          2. So since you do eat from time to time, your spouse could force feed you 24 hours a day without committing a crime.

            Sometimes “no” actually means “no”. Sometimes “I have a headache” or “I have work to do” or “I’m not in the mood” means “no”.

            Then let’s consider a spouse who demands an erection from hubby, and alas, he can’t maintain one 24×7. Is she allowed to force feed (see above) him Viagra as necessary?

            1. There is a distinction between the conduct of a gentleman and what I’m willing to put someone in prison for.

              There’s a big difference…

              1. You’ve already shown that you’re an irredeemably subhuman sack of shit, but I’ll admit to being depressed at how consistently you’re able to find new ways to sink lower.

                1. You’d think an attorney would be able to distinguish between “legal” and “morally right.”

                  1. But not an “educational policy consultant”.

          3. As always, what a charming fellow you are! As a young guy you must have been beating off the ladies with a stick. And then beat them with that stick if they didn’t put out.

            1. Unlike you, just beating off.

  2. Innocent until proven guilty beyond a reasonable doubt. If its good enough for murder its good enough for sex crimes. Not sure how people have no problem elevating these things into their own special category where the usual rules don’t apply.

    1. As best I can tell, a lot of women were raped in the 1960’s & 1970’s — and never put it behind them, hence the VAWA in the mid ’90’s with everything going downhill from there.

      1. I have to wonder how quickly you’d put a rape behind you.

        1. About as quickly as any other violent assault with personal injury.

        2. He does like to talk about life in Maine a lot.

          1. Something… happened there.

  3. Usually a minimum of three skanks making allegations is required. In the vast majority of cases where people know each other, the allegations are false, and face saving, buyer’s remorse.

    In addition, if you get into Mike Tyson’s limousine at 3 AM, go for a long ride with many red lights, go up a long elevator ride to his hotel room alone, you have implied consent. Same is true for Bill Cosby’s house at midnight. Consent is a defense to crime allegations.

    All lawyers are feminists. Feminism does not really exist. It is a lawyer masking ideology for the plunder of the assets of the productive males. Any feminist utterance is in rent seeking, a type of armed robbery, and should result in a voiding of the legal argument.

    I used to think there was a bias against males in the legal system. I then spoke to a female doctor about her divorce from an unemployed lawyer. The legal system is biased against anyone, male or female, with money. They raked her over the coals. The judge asked her husband out on a date after the decision. The lawyer profession is the most toxic occupation in the country, a criminal enterprise raking in a $trillion a year in worthless rent seeking. It must be crushed to save our nation. It is the proximate cause of all social and economic pathologies.

    1. All lawyers are feminists. Feminism does not really exist.

      So all lawyers are figments of our imagination? Sounds like you can rest easy now.

      1. Unfortunately the plunder of $trillion of lawyer rent seeking, all social and economic pathologies resulting from their rent seeking is all too real. Almost all catastrophic policies have been committed to enrich lawyers. They must be stopped to save our nation.

        1. I wonder how far your animus towards lawyers goes. The sixth amendment merely refers to “counsel”. Do you object to counsel itself? Do you demand that everyone must appear by hisself, no assistance allowed, as in small claims court? Is it bar associations you object to — would you be happier if “counsel” were treated as “anyone”, so defendants could choose a friend, a law student, someone who had failed the bar exam 10 times, someone who had been disbarred, someone who was in prison on death row?

          What exactly are your problems with lawyers? Be specific.

          1. Let’s start with the ABA and its deliberate restraint of trade over the past hundred years.

            A lawyer who has been disbarred can’t possibly be worse than some of the incompetent schmucks I’ve hired over the years. And I think that “counsel” *does* mean “anyone” with the clear exception of those currently incarcerated.

            1. “Let’s start with the ABA and its deliberate restraint of trade over the past hundred years.
              A lawyer who has been disbarred can’t possibly be worse than some of the incompetent schmucks I’ve hired over the years.”

              Seeing as how the ABA lacks the power to disbar anyone, the real problem here seems to be that you are exceptionally bad at hiring people to help you.

              1. One of the consequences of restraining trade is forcing the hiring of the incompetent due to the lack of competitors.

                1. Does it force people to explain away their own incompetence, or is that just something that you do?

          2. AAB. Criminal pro se defendants outperformed defense lawyers in jury verdict rates. Judges looked out for their procedural rights. Defense lawyer has 200 cases and does not care about the individual. He is the messenger of plea offers, and adds nothing of value.

            I object to the super-natural doctrines at the core of the common law. I object to constructive doctrines such as judicial review, in violation of Article I Section 1 giving all lawmaking powers to the Congress. I object to their self dealt immunities. I object to their plunder of our economy. I object to the Inquisition 2.0. They are responsible for all crimes, for the destruction of the black family, the cause of all racial disparities. I object to the failure of every self stated goal of every law subject. The most toxic is the high rate of crime.

            I do support the rule of law that allows us to do our work, and to live comfortably. In its absence, we would be spending our time on physical survival. Lawyers could provide that benefit, if they would not be in such failure to do so.

            I view it as a criminal cult enterprise that has infiltrated all branches of government, and makes 99% of policy, no matter who the elected figurehead is.

            1. You object to reality. How is that anyone else’s problem?

          3. AAB. Are you a lawyer? If the public is oppressed, the lawyer is doubly oppressed, by the criminal cult enterprise. The regular judge is triply oppressed. I am you best friend.

            The profession has to shrink by a half, and its salary should be quadrupled. The rule of law has great value, and should be enhanced.

        2. “Unfortunately the plunder of $trillion of lawyer rent seeking, all social and economic pathologies resulting from their rent seeking is all too real. Almost all catastrophic policies have been committed to enrich lawyers. They must be stopped to save our nation.”

          Not a problem if we accept your thesis that they don’t exist.

    2. I met Bill Cosby in person about 15 years ago — he’s not the person you see speaking in public, let alone on TV. There was something creepy about him — that’s not a crime, but I was picking up all kinds of stuff and was not surprised when the allegations came out.

      I’m not saying he got a fair trial — I don’t think he did — and I was very much in support of the stuff he was saying about education (my field) but I backed off and out of the casual conversation.

      1. Ed. Would you go to Bill Cosby’s house at midnight? You got creeped out. If you did, should you be able to complain?

      2. but I was picking up all kinds of stuff

        No, you weren’t.

        and was not surprised when the allegations came out.

        Yes, you were.

    3. “Usually a minimum of three skanks making allegations is required.”

      Your presence here is toxic and unwelcome. I strongly suggest you see a mental health professional immediately.

      1. Hi, Jason. Your presence in our nation is toxic and unwelcome. I strongly suggest you move to Venezuela, immediately. If you are a lawyer, I strongly urge you to repent your horrible effect on our nation. You kill $2 million in economic value, every year you are alive.

      2. Your presence here is toxic and unwelcome. I strongly suggest you see a mental health professional immediately.

        Perhaps you and he can both seek one out and get a group rate, allowing you to find out why it is that you feel compelled to speak for others.

        1. Wuz, is your tribalism so terminal that you’ll defend this Behar guy, or did you not bother to read the stuff he says?

          1. Sar. Are you a lawyer? If you are not, I have no dispute with you.

            1. I was for a while. But now I’m a bureaucrat for the federal government. How you like me now?

              I have some quarrels with you and, collective guilt thing you got going on with lawyers, and your easy hostility.

              1. “and your easy hostility.”

                You misspelled insanity 😉

              2. “But now I’m a bureaucrat for the federal government”

                Why am I not surprised?

                1. Your jealousy is showing.

          2. Wuz, is your tribalism so terminal that you’ll defend this Behar guy

            How you managed to interpret a suggestion that you both seek the services of a mental health profession as “defending” him I will leave to you and your shrink. Or, we can just assume that it was yet another example of your pathological dishonesty.

            1. So… not even a plug for YOUR therapist? Just as well, as you weren’t convincing anyone that your therapist is good at talking people out of delusions.

    4. ” if you get into Mike Tyson’s limousine at 3 AM, go for a long ride with many red lights, go up a long elevator ride to his hotel room alone, you have implied consent.”

      If you walk through a dangerous part of town with a full wallet or built an affluence-signaling abode without fences and guards I guess you implied consent to any attack and robbery that follows. I think another way of responding to this is, in the proper parlance, f*ck off, slaver.

      1. Driving a Mercedes is consent to a carjacking.

  4. Because rapists always give contact information to the victim.

    I’m reminded of a point often made by Camille Paglia — if the woman had actually found her car and driven home, *she’d* be the criminal. She’s damn lucky she didn’t drown, fully-clothed *sober* people with their shoes still on often do. (Going into the pool clothed but barefoot is part of lifeguard training — it’s scary how much a pair of wet jeans and just a T-shirt will drag you down, and she was also wearing a sweater…)

    I realize this is “blaming the victim” but unless we are going to treat women the way they are in Saudi Arabia (for their protection), then women are going to have to take responsibility for their own wellbeing. This is a classic college case except that they usually know each other.

    And if we are going to have victim shield laws — for good reason — then shouldn’t the same principle apply to the defendant? He wasn’t convicted in 2003 and there is a reason why we have statutes of limitations.

    He wrote his phone number on her arm so she could call him and continue the relationship, that’s not something a man who thinks he raped someone does — he’ll give a fake name and a fake phone number (and a sex crime prosecutor would know that).

    1. There’s also this:

      “Prior to trial, defense counsel obtained a confidential mental health evaluation that concluded that Pelletier suffered from a form of schizophrenia at the time of the alleged offense”

      Even though he hadn’t raised it for *this* trial, could he have raised it at the (new, unanticipated) “mini trial” on the 15-year-old allegation?

      And then what???

      1. And this: M.V.’s toxicology report measured a blood-THC level of 28 NG/ML of THC-COOH. Compare § 61-8-411(1)(a), MCA (prohibiting operation of non-commercial motor vehicle with a delta-9-THC level of 5 ng/ml or more excluding metabolites).

        She was high as a kite when she gave her report to the cops — and that shouldn’t have been excluded.

        1. THC levels are meaningless. They can persist for a long long time. I know people who smoke all day long to relieve pain, and are more functional “high” than most people are “sober” or “clean”.

          1. And the DA could argue that — but over five times the level that Montana has established for OUI is an objective fact, particularly when combined with her alcoholic blackouts the night before.

            “[T]he credibility of M.V.’s recollections and accounts of the disputed events of the alleged crime were the essential crux of the State’s case in a largely uncorroborated, classic he-said/she-said case. Coupled with her limited recall of the night and early morning before due to extreme alcohol intoxication, M.V.’s next-day marijuana use prior to reporting the alleged crime to police and her sexual assault examiner, both of whom testified at trial in the State’s case-in-chief, was highly relevant Rule 607(a)impeachment evidence under the narrow rule of Polak II, Sorenson, and Gleim.”

            I concur.

    2. The funny thing is that I have been there. When you both have had too much to drink, you don’t always know if the sex was because you connected at a deeper level, or were just having drunken sex. Most often, after leaving the woman my contact information, I would never hear from her again. And I would assume that she didn’t want to pursue a relationship any further. But not always. I am still with my last “conquest”, over twenty years later. Turns out we really did have a deeper connection. Well, most days. After most of a week together, driving 1400 miles with her and the cat in the front seat with me, she is happily spending the night with her daughter, while I stayed home and got the A/C fixed.

      One big problem here is that guys often don’t know if the sex was purely consensual. My experience is that a majority of the women I have dealt with are willing to accept the consequences of their actions. But not always. One suspicious thing here was that she told her boyfriend, and he pressured her to report the “rape” to the police. A surprisingly high frequency of these he says/she says cases seem to involve the woman’s boyfriend. One of the oldest excuses that women have used through the eons for having sex with another guy is that she was raped by him, if her BF or husband finds out about it.

      And, yes, women lie about sex. And, indeed, I suspect they lie about it more often than men do. Partially, I suspect that it is a result of human females having two incompatible sexual strategies. The older one is to mate with alpha males with superior genes. The more recently acquired one is monogamy, guaranteeing the resources of one male to be used to support her and her children, made necessary by our extended dependency, as compared to our ape ancestors. Some societies, with fairly high genetic homogeneity, have up to 1/3 of the children fathered by men other than the husband of their mothers.

      I should add that we live half the year about a quarter mile from the Clark Fork River, we spent Monday night in Missoula, on our annual trek south for the winter, and am pretty sure I know where she went wading in that river. It’s a big river, one of the larger tributaries of the Columbia, with a lot of very cold water running very fast in it in late spring and early summer. This last May or so, there was a lot of flooding around Missoula, and that probably includes where this woman started her evening.

      1. “One big problem here is that guys often don’t know if the sex was purely consensual.”

        I know. Because that’s the kind I want.

    3. “He wrote his phone number on her arm so she could call him and continue the relationship, that’s not something a man who thinks he raped someone does”

      So delusional people categorically cannot commit crimes? That’s a big update to the M’Naughton Rule.

  5. This is one of those cases where reasonable people can come to different conclusions. Unlike most things that the left gets its hands on.

  6. What the feminists fail to realize is that while they are terrifying men with this stuff, they are terrifying the wrong men, and that’s hurting women.

    25-30 years ago, if I saw a soaking-wet girl puking all over herself in a parking garage, I well might have brought her back to my apartment and if I felt she could manage on her own, handed her a towel and some of my old clothes and suggest that she might feel a whole lot better after a warm shower and in dry clothes — and to please remember to lock the bathroom door.

    And if I couldn’t get one of her friends to come pick her up, I might have walked or driven her home. It would be the decent thing to do — and I might get the clothes returned…

    Now, if anything, I would call the police and she’d be arrested (protective custody) and wake up in a jail cell. You can’t be nice to strangers anymore — there’s no way that a woman I didn’t know well would be in my apartment, ever… Not today…

    1. They also don’t realize that men are the backbone of any society, economically, culturally, militarily, and philosophically.

      If men simply refuse to participate in their games, society falls apart.

      1. “If men simply refuse to participate in their games, society falls apart.”

        Men are — and society is…

        1. Yep. We just don’t know it yet.

          1. There was a time when wives respected their husbands. There was a time when wives took care of their husbands as they expected their husbands to take care of them.”


            1. You haven’t yet figured out why men won’t marry you?

              1. I’m sure you had no issue getting a man to “marry” you.

                1. the answer is still “no”.

                  1. so STOP ASKING!

    2. there’s no way that a woman … would be in my apartment, ever

      Hey, you finally made a true statement!

      1. In English, a dependent clause usually changes the meaning of the sentence.

        1. What change in meaning are you imagining here?

    3. Don’t upset the ‘right’ people!

  7. The volunteers will be required to give a 2-5 hrs per week. It is NOT a regular fixed duration, project based organizational internship but a selfless volunteering ..

  8. “Defendant Says He’d Never Try to Have Nonconsensual Sex; Is Accusation from When He Was 15 Admissible in Response?”

    Seems like a straightforward application of the Rules of Evidence.

    If your defense to the crime is “i’m not the sort of person who commits this type of crimes” then the prosecutor can produce evidence that says you ARE the type of person who is repeatedly accused of this type of crimes. If you don’t want the jury to know this isn’t the first time you’ve been accused of this type of crime, don’t make a claim that can be rebutted by producing evidence of what kinds of crimes you’ve been accused of in the past.

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