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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
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IMHO sexual history of BOTH should be disclosed. Those who play fast and loose have a certain M.O. ,as do those of easy virtue.
In the Evans case, the young woman involved had a habit of getting inebriated and offering herself, supposedly having no recollection of her behaviour.
In light of that, if she can't recall giving nor denying consent she leaves herself open to scrutiny by the defence by said behaviour, unpalatable though that may be to some.
We all have to take a certain amount of liability for our actions when alcohol is involved, unfortunately.
In the Evans case, the young woman involved had a habit of getting inebriated and offering herself, supposedly having no recollection of her behaviour.
In light of that, if she can't recall giving nor denying consent she leaves herself open to scrutiny by the defence by said behaviour, unpalatable though that may be to some.
We all have to take a certain amount of liability for our actions when alcohol is involved, unfortunately.
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the world is full of people with repeat behaviour so we use that as a guide to future behaviour. No amount of trendy cobras is going to change that. I have a tendency to go out oj Friday and get plastered. See if you can predict what I'll be doing this Friday? Geddit? However inconvenient it is for this discussion the whole world is based on form.
The police in Leicestershire have announced that, if you are burgled and have contributed to that event by not securing your property, serves you right and that they may not investigate. Like to see them try that approach with a woman who is raped whilst drunk and scantily clothed. They would be in big doo doo.
Jim, //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?..... If it were her favourite then could it not just be the position she naturally turned to when well out of it?.//
It becomes relevant because rape is not generally assumed to elicit expressions of pleasure. In those circumstances it isn’t reasonable to expect a man to conduct a ‘cold, light of day’ psychological assessment – why would he when all indications were that he was with a willing partner? It simply isn’t realistic, in those circumstances, to expect a man to suspect that consent was in doubt.
It becomes relevant because rape is not generally assumed to elicit expressions of pleasure. In those circumstances it isn’t reasonable to expect a man to conduct a ‘cold, light of day’ psychological assessment – why would he when all indications were that he was with a willing partner? It simply isn’t realistic, in those circumstances, to expect a man to suspect that consent was in doubt.
Naomi, this point was covered on a recent fictional TV program regarding the rape of a man by a woman. She was his probation officer and forced him to perform under the threat of being reported for breach of his probation conditions. Defence put forward the argument that since he was able to perform he must have enjoyed it and therefore it can’t be rape, prosecution said that because he was under duress, the question of whether he had “enjoyed" it (ejaculated) or not was not relevant because he had not consented.
It also raises the interesting point of the performance skills of the alleged rapist...if he/she can’t please their alleged victim does that make it more likely to be adjudged rape and if the alleged rapist can cause the alleged victim to have an orgasm does that mean that its not rape even though it wasn't consensual?
It also raises the interesting point of the performance skills of the alleged rapist...if he/she can’t please their alleged victim does that make it more likely to be adjudged rape and if the alleged rapist can cause the alleged victim to have an orgasm does that mean that its not rape even though it wasn't consensual?
Woofgang, a man’s ‘bodily functions’ are uncontrollable so I don’t think the defence in that case had a valid argument. However, if a woman screams out "Thunderbolts and lightening, very very frightening" (Barmaid’s quote) I think it fairly safe to conclude that she’s having a good time. Personally, I can’t imagine ever succumbing to the attentions of someone attacking me – however skilful he may be - but perhaps that's just me.
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