Wednesday, January 28, 2009

'Rule 414: All men are presumed guilty as charged...'

I've been doing a lot of reading about sex crimes and the adjudication of same. I'm doing this not because I get off on reading about sex crimes, but because the undertaking is germane to the long article I'm now preparing for Skeptic. A lot of the piece, at least as I envision it, will focus on logical inconsistencies in the law, unequal enforcement, and the myriad assumptionsmy (in)famous "givens"stitched into the fabric of American jurisprudence, many of which, to my mind, stymie the pursuit of true justice before we even begin.

In perusing the Federal Rules of Evidence for sex crimes (the current understanding of what constitutes "evidence" being another of my pet peeves), I came across this intriguing example of, to me, a clear disparity in the way men and women* are treated under the law. Since the logic behind this disparity seems shaky at best, I presume the difference exists for political (which is really to say, politically correct) reasons. Though the links above and below will provide you with the full text, I have omitted much of the section here in order to focus on the salient provisions [all italics are added, but the bold-face is present in original]:

Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition

(a) Evidence generally inadmissible.**

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct...

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.
In contrast, we have:
Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible...
So...the victim's sexual history (including, say, whether she may like rough sex, or have fabricated allegations in the past) is irrelevant. But the defendant's sexual history is relevant.

Question: Why not just make everything relevant (and public) and let the jury decide? After all, it won't damage the victim's reputation to have her past trotted out in court any more than it damages the defendant's reputation to have his name linked to rape, sodomy or whatever else he's accused of. Right?

Interesting, anyway.

* Technically the law does not identify anyone by gender, so in theory a victim could be a man and a defendant could be a woman. In practice, of course, the overwhelming majority of adult-on-adult sexual assaults are perpetrated by men against women. Thus the intent of this section of law seems clear.
** And as you'll see if you read the full text, the exceptions are quite specific and relate only to the victim's prior interactions with the defendant himself.

22 comments:

notreallyalice said...

Look at the titles of the rules. They are about different things.

Rule 413 doesn't say a defendant's sexual history is relevant, it only says that his conviction history is relevant; i.e., has he been convicted of a dozen rapes? It doesn't prove that he committed this one, but it shows his character. But a woman liking rough sex or being "promiscuous" does not make her more rapable (less rapable?). Again, a jury should be deciding whether or not the alleged victim was raped, and how many men and women she's had sex with in the past month doesn't have anything to do with it. Also, you skipped the exceptions, including (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution.

On your last point. It doesn't matter if the alleged victim likes rough sex; rough sex is not rape. It can matter if she has fabricated allegations in the past, but then, how can a jury be expected to decide whether a separate case was a fabrication or not? It looks like you're not quite clear on what rape is. It's a violent attack, not "rough sex".

The evidence is carefully examined before the jury even hears it. However, if it does turn out that evidence is admitted improperly and unfairly, then there's always appeals court.

Steve Salerno said...

NRA: Yes, I realize that the titles are different. But I don't think I'm buying the dichotomy you propose. And I didn't skip the exceptions; I covered them in the footnote, which says the only exceptions relate to her specific interactions with the defendant. I don't think that's an "exception" to my general unease with the rule.

And if we're going to make his past public, I still don't see the problem with making everything public and letting reasonable people (which we presume the jurors to be) decide.

Btw, my point about the "rough sex" is that such a predilection is highly relevant to the forensics in the case. Bruises, signs of "restraints," etc. And you don't think that "rough sex" makes it harder to discern exactly where lines are drawn, in someone's mind, than if it were the "classic" romantic act? Especially, say, if both parties have been drinking?

I could go on and on, but I'll wait to see if others want in before I come back to this. Thanks for joining us.

Rational Thinking said...

Steve, I think the only relevance is past convictions, not past behavior. There's a big difference.

And does it matter where the line was drawn 'in someone's mind'? Surely it's a matter of law as to what constitutes a criminal offense?

I'm not sure I'm following your line of thought - sounds like you're talking about putting the alleged victim on trial, along with the alleged perpetrator?

Steve Salerno said...

I have much to say on this, but some of it is going to have to await publication of the piece in Skeptic, which, after all, is paying me good money for words that I shouldn't be giving away for free. I'm not trying to sound pompous or self-important; it's just the truth. Magazines want, and expect, "first rights."

In the meantime, let's not forget the so-called presumption of innocence*. To my mind--if we're serious about that--then yes, perhaps the victim and the defendant should be equally on trial; on trial for their veracity.

* which I'm fast realizing, in practical terms, is a myth. But...

Anonymous said...

'After all, it won't damage the victim's reputation to have her past trotted out in court any more than it damages the defendant's reputation to have his name linked to rape, sodomy or whatever else he's accused of. Right?'

Riiight... Another example of your alleged compassion for women, Steve. You just don't get it, do you. Your empathy chip is missing. Your hostility for women shows each time you write on the subject. But you feel for pedophiles and rapists. Special.

Steve Salerno said...

No. I just believe that the legal system and public institutions should not be skewed to anyone's benefit.

notreallyalice said...

About putting the victim on trial-- exactly.

Sorry, I did miss your second footnote.

The thing is, I don't trust jurors to be reasonable when it comes to rape and bondage, unless you can get a jury composed of people who practice bondage and who DO understand where the lines are drawn. Even when both parties are drinking.. Maybe I'm underestimating them...

I see what you're saying about rough sex and drinking. But unless that's what was happening during the event in question, I don't see past BEHAVIOR is relevant if what we're looking at is evidence of a specific crime.

Have you spoken with a lawyer about these sorts of trials? Non-lawyers really aren't equipped to understand law, and how it all plays out in proceedings, and precedents in the case law, which I haven't got the time to check right now...

Also, when you say "rough sex" makes it harder to discern exactly where lines are drawn, in someone's mind; by "someone" do you mean the parties in litigation, or the jurors?

notreallyalice said...

As for the victim's past, before trial, her counsel will (should?) warn her that her history is going to be made public whether she likes it or not. I would hope that the victim is aware of this. At any rate, the concern is not so much for her reputation coming out on the 6-o-clock news, it's about her reputation biasing the jurors.

Sorry, I'll stop now :) Interesting topic.

Steve Salerno said...

I have spoken to several of the nation's preeminent criminal-defense lawyers as well as current and former prosecutors and attorneys-general.

The point is, unless a jury knows something about a woman's sexual history (which apparently is inadmissible), how are they to know whether to evaluate her current circumstances in terms of her "general sexual preferences"? I'll ask you point-blank: If you're a prosecutor, and you know that the victim in the case is fond of bondage, etc.--sex that "leaves marks"--and you don't bring that up at trial, has justice been served? Especially if the defendant's past troubles are going to be introduced?

Furthermore, to play devil's advocate (which I often do; I don't know how much you visit the blog, if ever), even if a guy committed seven prior rapes, what does that have to do with whether he committed this one? (Why is that somehow more relevant than the woman's fondness for bondage or--for that matter--whether or not she's made false allegations against other men?) Don't all defendants enjoy the presumption of innocence until proven otherwise for this specific crime?

dannyboy said...

You are missing the point, Steve. She may love rough sex and loved it with her last four partners, but if she does not consent to it, or withdraws her consent at any time during interactions, it's a rape, no matter her previous history.
But, you gonna say, how can he, the poor thing, stop when she says no? Well, he better.

Anonymous said...

"even if a guy committed seven prior rapes, what does that have to do with whether he committed this one? (Why is that somehow more relevant than the woman's fondness for bondage or--for that matter--whether or not she's made false allegations against other men?)"


Because rape is a crime. Fondness for bondage is not.

Steve Salerno said...

Aw geez, Dannyboy, I thought we were way past that.

Of course rape is rape! I'm not talking about whether a man has a "right" to rape a woman! I'm talking about standards of proof, which is why I think you're missing my point. (And you're not alone.) Let me ask you a quick question or two, then I have to get back to work: What's a key piece of evidence that a woman was raped? (We do want some evidence, right? We're not just going to go on her say-so. ) Bruises, yes? Signs of "force"? Think about it. Or suppose she cries out in court, "He didn't even use a condom!" Might it not be relevant to know from her last five boyfriends that "she hates condoms"?

You don't need to "hate women" to think such things. You just need to be someone who cares about justice being done. Fairly. "For all," as we like to say.

Chad Hogg said...

I am generally with you on these types of posts, but I have to disagree here. A person's previous criminal acts would seem like an excellent indicator of their likelihood of future crimes. The defendant's sexual history is not admissible -- only their criminal history.

I understand your point that most of the physical evidence in a rape case could be explained away by consensual rough sex, and that this makes it valuable to know whether or not the two people involved would be likely to engage in such an act, based on their previous history.

By the way, I believe that the victim having previously fabricated similar accusations should be and is admissible. Surely you read about the Austin Scott case last year in which charges were eventually dropped because precisely that evidence was to be presented at trial.

No one has brought up the following point yet, which is interesting. Certainly one of the reasons why a victim's past is not admissible is because it is so difficult to get victims to come forward, even without having their past dragged out. So this rule of evidence has a purpose distinct from making the trial as fair as possible. Is that reasonable? I am not sure myself.

Also, I left a comment on the previous post yesterday afternoon that never arrived. Could you let me know whether you chose not to approve it (entirely your prerogative) or it simply disappeared into the ether?

Steve Salerno said...

Chad: First of all, I regret the apparent loss of yesterday's comment. Never saw it. I don't think I've ever rejected one of your comments, and I know how much thought (and sometimes background work) goes into these things. As I've said many times, I am deeply appreciative of the fact that people take time out to participate here. By all means try to reconstruct it and send it through again, if you care to.

Yes, I am familiar with the Scott case. That was local jurisdiction, however, was it not? These rules are federal. In fact, the rules of evidence, as well as pertinent "shield laws," often vary state by state.

Your remark that "a person's previous criminal acts would seem like an excellent indicator of their likelihood of future crimes" is actually one of the most worrisome aspects of all this, to me. Can we simultaneously have a presumption of innocence while we're already thinking, "Hey, this guy must've done it; hell, he did it five times before." I firmly believe that each crime should have to be proved not based on likelihood or any other predisposing circumstances, but rather based on tangible facts that relate to the case at hand. That is why I've long been an outspoken opponent of circumstantial evidence. To me, if there's no physical evidence, there's no case. I don't care if that means some felons walk; I'd rather have that than have the situation we have now, where Death Row is populated by any number of innocent people (usually black men, or others without any power or means) who are increasingly being exonerated by advancing DNA technology, etc.

The argument about women being reluctant to come forward is a sobering one, and yes, I'm surprised it hasn't come up before now. Still, I think that when you weigh a person's freedom against someone else's discomfort, the scale must be tipped towards the rights of the accused.

Sarsabu said...

Surely the underreporting of sex-crime is a huge problem. I would presume that making it fairer to the defendent would make even less reporting of such crimes.

RevRon's Rants said...

"Can we simultaneously have a presumption of innocence ..."

In a word, no. Even if a juror knows nothing about a specific case or the parties involved, there will inevitably be some preconceived attitudes toward the crime itself and, by extension, toward the accused. I think that the old comeback question, "What if it was your child..." is going to be rolling around in the mind of the jurors, and in actual practice, the onus falls upon the defense attorney to prove innocence, rather than upon the prosecution to prove guilt.

As we've seen with increasing frequency of late, accusation of a criminal act is sometimes used as a weapon by the alleged "victim," with the accused's life ruined in the process, regardless of the outcome of the trial. While I think we need to protect the well-being of victims, we also need to try to avoid the creation of additional victims via false accusation.

Perhaps if there were stiffer penalties for falsely accusing another of a crime, the occurrence of these gambits would diminish. In summary, I do think that a jury needs to know *all* facts pertinent to a given case, including whether either party has been involved in similar incidents in the past. However, I think that the identity of the accused *and* the accuser should be withheld from public scrutiny unless either is actually convicted of a crime. Keep the media out, and put a gag on any public airing of details until the trial is over, and beyond that, if it is determined by the jury that no crime has occurred.

Steve Salerno said...

Sars et al: That is a risk, I agree.

Steve Salerno said...

Perhaps if there were stiffer penalties for falsely accusing another of a crime...

This is a key point, Rev, and I thank you for making it. Many years ago when I lived in New York and cops would routinely beat confessions out of suspects (and/or plant evidence, stage crime scenes, etc.), the only apparent penalty for such official malfeasance was that occasionally, a case would get thrown out of court "on a technicality." I found that mind-boggling. Since then laws have been tightened considerably, such that cops who are caught rigging evidence today not only risk losing their jobs, but face criminal prosecution themselves.

I am reminded of what my family faced when we were victimized by paternity fraud; the only recourse we had, pretty much, was "oh well..." The woman just goes on her merry way. (And that's still how it is, for all intents and purposes.) A well-known lawyer and men's advocate, Jeff Leving, refers to paternity fraud as "the only sex crime we don't punish."

notreallyalice said...

"Furthermore, to play devil's advocate (which I often do; I don't know how much you visit the blog, if ever), even if a guy committed seven prior rapes, what does that have to do with whether he committed this one? (Why is that somehow more relevant than the woman's fondness for bondage or--for that matter--whether or not she's made false allegations against other men?) Don't all defendants enjoy the presumption of innocence until proven otherwise for this specific crime?"

I think you're right... But I do think it's funny how we're making up a case where everything is worst case scenario: "The victim has marks because she had consensual tied-up-sex thirty minutes prior!" Does that happen??

I'm new to law and I enjoy learning and thinking about it. I wasn't expecting that from your blog (which I have been reading for maybe a few weeks now).

Steve Salerno said...

NRA: Well, glad you joined us. And if you enjoy reading/thinking about legal matters, I invite you to stick around for when I finish the Skeptic piece; that should rattle a few cages.

I hear what you're saying about worst-case scenarios, but look at it this way: When life is neat and orderly and predictable, we seldom have problems. We know what's what and can sort things out fairly easily. It's when strange things happen--bizarre coincidences--that people are put in uncomfortable, suspicious-looking positions. Those are precisely the situations when it's most important for the legal system to consider all of the possibilities and not jump to the "obvious" conclusions. Just because a woman told somebody she hated her husband and was having a torrid affair with a neighbor and happened to go shopping for a shovel a few days before her husband went missing does not mean she killed the guy and buried the body! A scenario like that is especially when the legal system needs to be most vigilant about finding REAL evidence. In my view, none of what I just described would be evidence in that case.

Anonymous said...

oh come on, there's a difference between a person's private life which we're all entitled to live as we like within reason, and someone having been accused of sexual crimes in the past.

The Final Verdict on the Matter said...

The past sexual conduct of either alleged victim or alleged perpetrator is irrelevant.

What is relevant though is past CONVICTIONS, for either one.

If for example the alleged victim had in the past been convicted of lying in court.... well then...