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Previous Sexual Encounters - Relevance To New Charges?
I am starting another thread rather than tack onto the Ched Evans thread.
That is an example of the complainant's previous behaviour being taken into account by a jury (after being allowed in following legal argument) in case of sexual assault and/or rape.
My knee jerk reaction was that to allow a complainant's sexual history in is to take us back to the time when a man accused of raping a woman with what might have been considered to be low morals was unlikely to be convicted. This is my view is wrong on every single level.
However, one has to place this in a contextual situation. Take for instance the following examples:-
Bob Jones is accused of raping Ann Smith. Ann is said to have been extremely intoxicated and has no memory of events that night.
a) During the alleged offence, Bob says that Ann suggested to Bob that he might like to try the position of "thunder and lightening" which is an unusual sexual position which involves some level of contortionism on behalf of both parties (I have just made this up by the way, so dont go googling it), during the act, Bob alleges that Ann shouts a particular phrase "Thunderbolts and lightening, very very frightening". Under cross examination, Ann denies this. However, previous partners could give evidence that "thunder and lightening" was her favoured sexual position and they are able to repeat the phrase. Should the previous partners be allowed to give evidence?
b) Nothing remarkable happens during the alleged offence. Ann says she cant remember, Bob says she consented. A number of previous partners could give evidence to say that Ann had had sex with them on previous occasions when she was drunk. Should the previous partners be allowed to give evidence?
c) Ann was walking home, stumbling and disorientated. Bob sees her and picks her up. Therafter they have sex, Ann has no memory of it. A number of previous partners could give evidence to state that 10 years previously Ann worked as a prostitute and would often go out looking for business drunk. Should the previous partners be allowed to give evidence?
Put to one side the issue of informed consent. Put to side the Ched Evans case (which although this case raises this issue, I am talking generally).
What do you think?
That is an example of the complainant's previous behaviour being taken into account by a jury (after being allowed in following legal argument) in case of sexual assault and/or rape.
My knee jerk reaction was that to allow a complainant's sexual history in is to take us back to the time when a man accused of raping a woman with what might have been considered to be low morals was unlikely to be convicted. This is my view is wrong on every single level.
However, one has to place this in a contextual situation. Take for instance the following examples:-
Bob Jones is accused of raping Ann Smith. Ann is said to have been extremely intoxicated and has no memory of events that night.
a) During the alleged offence, Bob says that Ann suggested to Bob that he might like to try the position of "thunder and lightening" which is an unusual sexual position which involves some level of contortionism on behalf of both parties (I have just made this up by the way, so dont go googling it), during the act, Bob alleges that Ann shouts a particular phrase "Thunderbolts and lightening, very very frightening". Under cross examination, Ann denies this. However, previous partners could give evidence that "thunder and lightening" was her favoured sexual position and they are able to repeat the phrase. Should the previous partners be allowed to give evidence?
b) Nothing remarkable happens during the alleged offence. Ann says she cant remember, Bob says she consented. A number of previous partners could give evidence to say that Ann had had sex with them on previous occasions when she was drunk. Should the previous partners be allowed to give evidence?
c) Ann was walking home, stumbling and disorientated. Bob sees her and picks her up. Therafter they have sex, Ann has no memory of it. A number of previous partners could give evidence to state that 10 years previously Ann worked as a prostitute and would often go out looking for business drunk. Should the previous partners be allowed to give evidence?
Put to one side the issue of informed consent. Put to side the Ched Evans case (which although this case raises this issue, I am talking generally).
What do you think?
Answers
I don't think you can put aside the issue of consent, because I believe that it must be shown that the "victim" did not/could not give consent AND that the accused did not reasonably believe that she was consenting. In the thunder and lightening example (A), if the witnesses can show that she behaved like that with them (when, I presume she was enjoying herself)...
17:20 Tue 18th Oct 2016
just as a point of information, could witnesses be called to give evidence (Trump-style) that the defendant has a history of sex with drunks/exotic positions etc?
I'm vaguely rememering a rape case some years ago when the defendant said she'd refused sex so he hadn't touched her and they just slept side by side. The prosecution seemed to think this was highly unlikely, but a female witness said yes, he'd done exactly that with her; and he was acquitted.
I'm vaguely rememering a rape case some years ago when the defendant said she'd refused sex so he hadn't touched her and they just slept side by side. The prosecution seemed to think this was highly unlikely, but a female witness said yes, he'd done exactly that with her; and he was acquitted.
I realise that this is a very contentious issue, but my feeling is that the evidence should be allowed. The young lady went back presumably willingly to a hotel with a man. What did she expect would happen - a cup of coffee? She allowed the first one to have sex with her, why didn't she allow the second one? If she was so drunk how can she remember what happened.
I know this won't please many people, and I hesitate to use the phrase 's-w-a-f-it' but ...........
I know this won't please many people, and I hesitate to use the phrase 's-w-a-f-it' but ...........
I find it hard to put aside the issue of consent; it's generally what rape cases are all about.
The fact that the woman has had sex before, with or without thunder and lightning, whether as an amateur or a professional, is irrelevant, as far as I'm concerned. She's entitled to have sex with every man in town except Bob, free or for diamonds; that gives Bob no rights or expectations whatever. Therefore calling witnesses to say she has done so is pointless because the evidence can be neither relevant nor probative.
I can see how witnesses might legitimately tell the court they heard her give consent; even if they didn't follow them into the bedroom to say the consent was rescinded or not. That sounds relevant and probably as probative as you're going to get. But past partners just because they're past partners? Not in my book.
The fact that the woman has had sex before, with or without thunder and lightning, whether as an amateur or a professional, is irrelevant, as far as I'm concerned. She's entitled to have sex with every man in town except Bob, free or for diamonds; that gives Bob no rights or expectations whatever. Therefore calling witnesses to say she has done so is pointless because the evidence can be neither relevant nor probative.
I can see how witnesses might legitimately tell the court they heard her give consent; even if they didn't follow them into the bedroom to say the consent was rescinded or not. That sounds relevant and probably as probative as you're going to get. But past partners just because they're past partners? Not in my book.
I'm sure that you'll be able to find a definition of "thunder and lightning" on Urban Dictionary this evening if -- oh wait, never mind, there already is one...
* * * * *
I really, really want to study and understand the CA ruling on this one. Essentially, I have three questions:
(1) It seems to me that one can stretch the definition of "relevant sexual history" pretty far and still technically lie within the law. If I understand it, the relevant previous and future experiences in R v. Evans included the complainant repeating a particular phrase that is not actually all that remarkable. So why does it become so relevant, or call into question her alleged inability to consent specifically? It seems to me that in case (a) I would have the same question -- maybe she enjoys that position, while drunk as well as when sober, but if she genuinely has no memory after the fact then it doesn't seem to me to change the assessment much. If it were her favourite then could it not just be the position she naturally turned to when well out of it?
(2) But anyway, the previous sexual history seems vaguely irrelevant if the defendant could not previously have been aware of it. If Ann and Bob had never previously met then Bob can hardly argue that his understanding of consent was based on her previous sexual history that, by definition, he knew nothing of. So, again, why isn't it totally irrelevant in that case (again, this appears to me to be true in R v Evans as it was admitted that the two didn't know each other and hadn't met until Evans walked into the room with her on the bed with McDonald).
(3) Presumably the problem, too, is that in each of the cases described, as well as the recent one that prompted this, the sexual activity was "superficially" consensual in some sense and that just muddies the waters. I hate the use of that phrase but what I mean is that I am wondering if juries are struggling to appreciate the subtlety of "reasonable belief" of consent. In R v. Evans it can be argued that Evans wasn't totally cognisant of the issues surrounding alcohol and consent, and taking his account to be true it seems that the complainant appeared fairly enthusiastic at the time, so his belief that she had consented seems to me to be on the borderline between reasonable and not. I would maintain that it was on the wrong side, as he should have considered that maybe she was rather drunk, and anyway what with her already having sex with McDonald, she was already in a vulnerable position and might have struggled to say no even if she wanted to. But with respect to these cases what I am suggesting is that because the sex could have appeared to be consensual on a superficial level, the previous sexual history could tip the delicate balance of "reasonable belief or not" even though it's not actually relevant. Take a more extreme case (d), where there can be no doubt that the alleged sex was non-consensual, but Bob's lawyers discover that Ann had a previous history of "rape fantasy" sex, ie roleplaying a scenario where she is raped, although during the roleplay the sex is in fact consensual. (This is actually a thing, for some people). Could Bob attempt to offer up a defence whereby she says it was rape to the police, but in fact this was an extension of her previous roleplaying? And if not, why not?
It seems to me that the CA ruling in Evans v. R *does* risk leaving these sorts of question rather horribly open, and that troubles me.
In answer to each of your three cases, I would suggest that (b) and (c) are certainly not relevant. and (a) is *probably* not relevant, but it does seem unclear what is to be relevant or not. And why couldn't the defence just argue in each case that it's up to the jury to decide whether or not the history is relevant?
Finally, in R v. Evans, why don't the new witness statements not also suggest that the woman had been, effectively, raped three times and not just by Evans?
* * * * *
I really, really want to study and understand the CA ruling on this one. Essentially, I have three questions:
(1) It seems to me that one can stretch the definition of "relevant sexual history" pretty far and still technically lie within the law. If I understand it, the relevant previous and future experiences in R v. Evans included the complainant repeating a particular phrase that is not actually all that remarkable. So why does it become so relevant, or call into question her alleged inability to consent specifically? It seems to me that in case (a) I would have the same question -- maybe she enjoys that position, while drunk as well as when sober, but if she genuinely has no memory after the fact then it doesn't seem to me to change the assessment much. If it were her favourite then could it not just be the position she naturally turned to when well out of it?
(2) But anyway, the previous sexual history seems vaguely irrelevant if the defendant could not previously have been aware of it. If Ann and Bob had never previously met then Bob can hardly argue that his understanding of consent was based on her previous sexual history that, by definition, he knew nothing of. So, again, why isn't it totally irrelevant in that case (again, this appears to me to be true in R v Evans as it was admitted that the two didn't know each other and hadn't met until Evans walked into the room with her on the bed with McDonald).
(3) Presumably the problem, too, is that in each of the cases described, as well as the recent one that prompted this, the sexual activity was "superficially" consensual in some sense and that just muddies the waters. I hate the use of that phrase but what I mean is that I am wondering if juries are struggling to appreciate the subtlety of "reasonable belief" of consent. In R v. Evans it can be argued that Evans wasn't totally cognisant of the issues surrounding alcohol and consent, and taking his account to be true it seems that the complainant appeared fairly enthusiastic at the time, so his belief that she had consented seems to me to be on the borderline between reasonable and not. I would maintain that it was on the wrong side, as he should have considered that maybe she was rather drunk, and anyway what with her already having sex with McDonald, she was already in a vulnerable position and might have struggled to say no even if she wanted to. But with respect to these cases what I am suggesting is that because the sex could have appeared to be consensual on a superficial level, the previous sexual history could tip the delicate balance of "reasonable belief or not" even though it's not actually relevant. Take a more extreme case (d), where there can be no doubt that the alleged sex was non-consensual, but Bob's lawyers discover that Ann had a previous history of "rape fantasy" sex, ie roleplaying a scenario where she is raped, although during the roleplay the sex is in fact consensual. (This is actually a thing, for some people). Could Bob attempt to offer up a defence whereby she says it was rape to the police, but in fact this was an extension of her previous roleplaying? And if not, why not?
It seems to me that the CA ruling in Evans v. R *does* risk leaving these sorts of question rather horribly open, and that troubles me.
In answer to each of your three cases, I would suggest that (b) and (c) are certainly not relevant. and (a) is *probably* not relevant, but it does seem unclear what is to be relevant or not. And why couldn't the defence just argue in each case that it's up to the jury to decide whether or not the history is relevant?
Finally, in R v. Evans, why don't the new witness statements not also suggest that the woman had been, effectively, raped three times and not just by Evans?
Let's assume he had been drinking but was not intoxicated.
Hellywelly, we cant assume that because someone goes back to someone's hotel room we consent to sex. Unless of course, the similar fact is that she has gone back to a complete stranger's room for sex.
I make it VERY VERY CLEAR, these facts I have made up. Whilst they were inspired (probably wrong word) by the Ched Evans case the facts I have made up are NOT based on Ched Evans or anyone connected with that case, I am looking more generally as to what ABers think about evidence of previous sexual history being call.
Hellywelly, we cant assume that because someone goes back to someone's hotel room we consent to sex. Unless of course, the similar fact is that she has gone back to a complete stranger's room for sex.
I make it VERY VERY CLEAR, these facts I have made up. Whilst they were inspired (probably wrong word) by the Ched Evans case the facts I have made up are NOT based on Ched Evans or anyone connected with that case, I am looking more generally as to what ABers think about evidence of previous sexual history being call.
Isn’t there some kind of concept about a person’s ability to give informed consent at the particular event? I would question whether suggesting a position would be proof of the ability to give informed consent....also it might be argued that the previous partners had not been subsequently accused of rape by Ann, making their testimony irrelevant.
In the second example, her previous behaviour should have no bearing on the allegation.
I think that the two examples you have given don’t make a sufficiently strong argument for the routine admission of evidence about an alleged victim’s prior life. I think that if the alleged victim has a history of accusing sexual partners of rape then that may be admissible.
In the second example, her previous behaviour should have no bearing on the allegation.
I think that the two examples you have given don’t make a sufficiently strong argument for the routine admission of evidence about an alleged victim’s prior life. I think that if the alleged victim has a history of accusing sexual partners of rape then that may be admissible.
Sorry this is me not explaining myself. I said put aside the issue of informed consent. When intoxicated there must (imho) be the issue of not being able to consent or not knowing what one is consenting to.
Absolutely right, jno, Ann can have sexual relations with anyone and his wife if she CHOOSES to do so. But how do we judge choice? And how then do we judge on whether that choice was validly made? It's a minefield for men, women and lawyers!
The problem with these cases is that very often it is one person's word against another. "She consented" "no, I didnt" or "No she couldnt". So in those cases, should evidence of previous sexual history be led?
Jim - wow! I am going to have to think about that. But broadly, yes I agree, the case has asked more questions that it answered, which is partly a reason for this post.
Absolutely right, jno, Ann can have sexual relations with anyone and his wife if she CHOOSES to do so. But how do we judge choice? And how then do we judge on whether that choice was validly made? It's a minefield for men, women and lawyers!
The problem with these cases is that very often it is one person's word against another. "She consented" "no, I didnt" or "No she couldnt". So in those cases, should evidence of previous sexual history be led?
Jim - wow! I am going to have to think about that. But broadly, yes I agree, the case has asked more questions that it answered, which is partly a reason for this post.
I agree Woofgang about the routine admission of this type of thing. would it be the case that her suggesting "thunder and lightening" gives him reasonable belief in her consent - the fact that she then denies it ought to trigger the testimony of witnesses who have experienced this?
TTT - what is form? Being a woman of loose morals or something else? I didnt understand you.
TTT - what is form? Being a woman of loose morals or something else? I didnt understand you.
In the Evans case the woman entered the hotel room with two men. She had sex with both but only prosecuted Evans. The other man confirmed he had sex with her. Girl says one was consensual and other wasnt.
She consented to enter the room with 2 men, if she only wamted sex with one man, she could have made that known before entering the room. If she was too drunk how could she consent to one & not the other.
She consented to enter the room with 2 men, if she only wamted sex with one man, she could have made that known before entering the room. If she was too drunk how could she consent to one & not the other.
Woofgang, I also agree that a previous allegation of rape by the complainant may be relevant depending on the circumstances.
Actually those women that make FALSE allegations of rape (not ones where the accused is found not guilty, I make it very clear that there needs to be proof of a lie) should attract the full force of the law. It's a hideous thing to put an innocent man through - it also does true victims a great disservice.
Actually those women that make FALSE allegations of rape (not ones where the accused is found not guilty, I make it very clear that there needs to be proof of a lie) should attract the full force of the law. It's a hideous thing to put an innocent man through - it also does true victims a great disservice.
\\\\\The problem with these cases is that very often it is one person's word against another. "She consented" "no, I didnt" or "No she couldnt". \\\\
and that is the bottom line. is it likelier or not that she consented or did not consent and here surely, her past social history is important.......unless of course you intend to dismiss the case.
Assuming that a conclusion as to be reached, then the evidence of past partners, past sexual practices and ease of sexual availability must play a part and any witnesses must be presented and examined (verbally). Without that...one may have nothing.
My ruling in your above example would be that one could not reasonably and safely convict Bob of rape.
and that is the bottom line. is it likelier or not that she consented or did not consent and here surely, her past social history is important.......unless of course you intend to dismiss the case.
Assuming that a conclusion as to be reached, then the evidence of past partners, past sexual practices and ease of sexual availability must play a part and any witnesses must be presented and examined (verbally). Without that...one may have nothing.
My ruling in your above example would be that one could not reasonably and safely convict Bob of rape.
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