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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
OK, I understand what you are saying - but I have never ever seen or figured out anyone who is posting under more than one identity.
How is this analysis done, and more to the point - why?
I read and respond, it never occurs to me that anyone is being dishonest, but if you think some chicanery is going on, report it to the ED and let him make a decision.
How is this analysis done, and more to the point - why?
I read and respond, it never occurs to me that anyone is being dishonest, but if you think some chicanery is going on, report it to the ED and let him make a decision.
OK, I understand what you are saying - but I have never ever seen or figured out anyone who is posting under more than one identity.
__________
Might be a first for me then! Someone in authority must have spotted it because the first user had all their answers removed and another thread was removed that referenced them.
Make of it what you will......
__________
Might be a first for me then! Someone in authority must have spotted it because the first user had all their answers removed and another thread was removed that referenced them.
Make of it what you will......
getting back to the OP, it seems that we have drifted away from what the law should uphold, to what we as individuals choose to do (put it down to experience) The fact that some people might choose not to involve the law doesn't mean that no one should or that the law should refuse them that right.
I think the argument that certain behaviours some how reduce or take away a person's right to safety or to legal redress is a very dangerous one indeed. I am not saying that its not a pragmatic approach but its not one that society or the law should support.
I think the argument that certain behaviours some how reduce or take away a person's right to safety or to legal redress is a very dangerous one indeed. I am not saying that its not a pragmatic approach but its not one that society or the law should support.
woofgang - //getting back to the OP, it seems that we have drifted away from what the law should uphold, to what we as individuals choose to do (put it down to experience) The fact that some people might choose not to involve the law doesn't mean that no one should or that the law should refuse them that right.
I think the argument that certain behaviours some how reduce or take away a person's right to safety or to legal redress is a very dangerous one indeed. I am not saying that its not a pragmatic approach but its not one that society or the law should support. //
I would entirely agree.
If I was a woman and I was attacked, I would not want to think that the procedure to get my attacker brought to justice would be the mental physical and legal equivalent of climbing Everest without oxygen.
The way to avoid individual person prejudices about the way people live and behave is to try and create a sense of respect for the rights of everyone within legal limits to go about their lives free of fear that certain sets of circumstances will lead sections of society to believe that some people deserve to have bad things happen to them.
I think the argument that certain behaviours some how reduce or take away a person's right to safety or to legal redress is a very dangerous one indeed. I am not saying that its not a pragmatic approach but its not one that society or the law should support. //
I would entirely agree.
If I was a woman and I was attacked, I would not want to think that the procedure to get my attacker brought to justice would be the mental physical and legal equivalent of climbing Everest without oxygen.
The way to avoid individual person prejudices about the way people live and behave is to try and create a sense of respect for the rights of everyone within legal limits to go about their lives free of fear that certain sets of circumstances will lead sections of society to believe that some people deserve to have bad things happen to them.
I don't think a person's previous behaviour should be a factor in a court case involving sexual assault.
The job of the defence counsel is to find any and all ways to discredit the victim, and 'past behaviour' is an easy signpost to use because it involves the human nature of jurors.
If you say to a group of twelve people that a woman has 'done this in the past ...' , then it sows the seed in their mind that she may have done it again here.
My point is that, no matter what a woman may or may not have done in her past, she is entitled to say 'No' to any and all sexual activity with whomever she chooses at any time.
I don't care if she enjoyed a pleasuable evening with the local rugby team the night before, 'No' means no, and that is the end of it.
The job of the defence counsel is to find any and all ways to discredit the victim, and 'past behaviour' is an easy signpost to use because it involves the human nature of jurors.
If you say to a group of twelve people that a woman has 'done this in the past ...' , then it sows the seed in their mind that she may have done it again here.
My point is that, no matter what a woman may or may not have done in her past, she is entitled to say 'No' to any and all sexual activity with whomever she chooses at any time.
I don't care if she enjoyed a pleasuable evening with the local rugby team the night before, 'No' means no, and that is the end of it.
hazydaisy - // Surely in this day and age a man should realise that taking part in sex with an intoxicated woman is likely to be the precursor of a rape charge //
As I pointed out at length during the Ched Evans debate on here - maybe we should be educating young me to avoid sexual activity with intoxicated women, not because it may lead to a rape charge, but simply because it is not respectful behaviour towards another human being.
As I pointed out at length during the Ched Evans debate on here - maybe we should be educating young me to avoid sexual activity with intoxicated women, not because it may lead to a rape charge, but simply because it is not respectful behaviour towards another human being.
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