Previous Sexual Encounters - Relevance To New Charges?

[Barmaid]

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?

[jim360]

That's a total mispresentation of the Evans case, tamborine. In fact the ordering of events was far, far closer to:

-- woman and McDonald enter a hotel room, having met on the street somewhere.
-- proceed to have sex.
-- Evans enters, having been told by McDonald that he had "got a bird", and joins in the sexual activity.
-- woman then wakes up later with no memory, according to her account.
-- investigations lead to the arrest and charging of both McDonald and Evans.
-- Evans is convicted, but McDonald is acquitted, at the first trial (in 2012).

So your version is totally wrong.

[Barmaid]

Tamborine - I am trying to get away from Ched Evans. But apart from anything else, your post is factually incorrect in a number of areas.

1. She entered into the room with Macdonald.
2. He was charged with rape and acquitted.
3. She cant remember consenting to either.

I agree with your last sentence though.

[jim360]

Also, just out of interest, could someone accused of Actual Bodily Harm get away with it because the alleged victim has a history of getting stabbed?

[jno]

I think that's just the sort of thing a jury has to judge, on the basis of what the witnesses say, how they say it (and I suspect other little things like whether their eyes are too close together; jurors form their impressions in all sort of ways).

The accused will always say "she consented". However, as jim says, if they're strangers then he can't possibly have an opinion about her consent that is based on her previous history, because he doesn't know her previous history.

Where it gets really awkward is if the parties know each other or even have a previous sexual history; I imagine I'd find that almost impossible to judge, meaning the accused would generally get the benefit of the doubt, unfair though that may be.

But in the case of one-night stands, I think jurors should decide on the evidence of the incident alone, not of things the complainant may have done in the past.

[Barmaid]

You cant consent to ABH, Jim, so no.

(That was far easier than your last question!)

[jim360]

Still, I suppose it's worth learning that it doesn't work as an analogy!

I'll look forward to seeing a discussion of my earlier questions, I hope.

[jno]

to rephrase jim's last post: "This woman has a history of giving money to beggars in the street. So of course I didn't rob her, she gave it to me."

[jackthehat]

Tambo - This thread isn't about the Evans Case, Barmaid has made that clear but even if it was, how can you possibly have an opinion on it given that your post shows that you haven't understood a single thing about it?

I believe that admittance of the 2 new witnesses is a retrograde step when it comes to such cases. How wide will the door now be pushed, so that the sexual history of every 'victim' becomes fair-game for the Defence?

[Barmaid]

Bear in mind the issue of previous behaviour will not be known to Bob! It is only really relevant when Bob raises this as a defence if he is subsequently charged with rape.

[Barmaid]

That's bloody good analogy jno.........

[jackthehat]

Apologies for my tardy responses.......AB is messing about this afternoon.

I agree with jno's analogy. That's just what we have witnessed....:o(

[naomi24]

jno’s analogy only works if the woman was, indeed, raped. A history of sexual encounters cannot and should not be considered as evidence - that's entirely irrelevant. Someone who is being raped doesn’t scream out ‘"Thunderbolts and lightening, very very frightening", and therefore if two men - one a welcome partner, the other accused of rape, tell the same story I would conclude that the accused is not a rapist.

[woofgang]

naomi, that assumes that the woman was capable of consent on both occasions. Its like karaoke....on one occasion the woman goes on stage of her own volition and belts out “I will survive” on another occasion she is hoisted onto the stage and a mic (ooo matron) put in her hand. Habit takes over and she belts out “I will survive” again, but this time without knowledge or volition.

[naomi24]

Woofgang, //that assumes that the woman was capable of consent on both occasions. //

Indeed. That's the point.

[jim360]

It's at times like this when I'd love to be able to hear what went on inside the jury room, but anyway.

If the woman is drunk beyond the capacity to make any kind of decision, then she can appear as enthusiastic as you like at the time -- but she's deemed to be incapable of giving consent because she's not truly aware of her decisions. Therefore, in the case you describe, her shouting "thunderbolts and lightning", or "harder, harder!" does not necessarily mean that she was truly consenting, or capable of it.

So in that sense it's certainly possible for her to have consented and shouted something indicating pleasure, and have been incapable of consent and said the same things. On the latter occasion it would have been rape, although perhaps it might be harder for the jury to consider it to be so beyond reasonable doubt. Seems to me that the question is, "is the doubt so prompted reasonable, or is it a distraction?"

[jim360]

Just at the risk of saying any more in future, it's worth pointing out that I have, in fact, served as a juror in a rape case. I obviously can't discuss anything beyond that as I'd risk contempt etc but what I am saying is that I'm perhaps more aware than most about what juries are told about reasonable consent in rape cases. Certainly, I'm certainly well aware that "probably did it" is the same thing as "not guilty". I'm aware too of the responsibilities of juries to give the benefit of doubt as far as possible to the accused.

What I am not so sure about is how all this is, or should be, affected by the sexual history of the complainant. Should it cast reasonable doubt guilty about or not? I don't really see that it necessarily should -

[ToraToraTora]

Form is relevant past behaviour that strangers initially use to determine likleyhood of the person having repeated past behaviour. EG a Burglar is on trial, the fact that he has 100 previous offences is relevant. Regardless of the current rules it is relevant.

[jim360]

Damnit, accidentally clicked enter while I was editing that post.

Should it cast reasonable doubt about guilt or not? I don't really see that it necessarily should, in particular with regard to the point that "previous sexual history" is usually not available to the defendant at the time. Even if it's a fairly comparable incident, I would be worried that it provides a distraction. It may depend on the specifics of the case, so it's a tricky thing to judge in the abstract, but I would certainly be concerned that this case has the potential to set a precedent of sexual history being deemed relevant more and more often.

I do agree, though, that there has been an overreaction to the verdict. It took Evans and his team some effort to get this evidence to be admitted, and with that safeguard still in place it is important to stress that, for the moment, this sort of line of defence is going to be rare.