This blog stands accused of dwelling on tawdry subject matters in order to draw the clicks of the prurient masses. Perhaps so, even if, as of yet, this appears to have been a spectacularly unsuccessful strategy. But if this be prurience, let’s make the most of it. In this spirit, please consider the following hypothetical, not drawn from any particular case but an amalgamation of many.
The undisputed facts are:
A man and a woman meet at a night club. After some apparently friendly chatting and dancing, the woman drives home. The man follows her in his car. The man enters the home and has sex with the woman. The next morning the man leaves.
Some time later, the woman files a complaint that the man raped her. She claims:
The man followed her home unbidden. After so stalking her, he forced himself into the home as she was opening the door. Then he raped her.
The man, however, has a different story:
The woman asked him to follow her home and invited him in. Then they had consensual sex. The next morning, he said something which offended her—perhaps, he announced his admiration for Donald Trump or Bernie Sanders, or he professed support for the wrong football team. So she sent him packing.
These facts are in evidence. The reader should feel free to add evidence of as many additional circumstances as necessary to render this a close case under the relevant standard of proof (beyond a reasonable doubt in a criminal case, preponderance of the evidence in a civil case).
Now the defense offers into evidence a set of affidavits by a dozen other men uncovered by defense investigators who are willing to testify under oath that on other, recent occasions, both previous and subsequent, the woman has acted with them just like the man described she did with him. (Perhaps without the offending remark and subsequent dismissal.)
Should this evidence be admitted?
Under Federal Rule of Evidence 412, enacted in 1994,That this rule was signed into law by President Bill Clinton and was subsequently used against him is a matter of some amusement to many well-informed litigators. the answer is clearly no:
Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.
Fed. R. Evid. 412(a).
It seems almost equally clear that under the Sixth Amendment, this evidence is admissible:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const. ammd. VI (emphasis added).
In a sense, this evidentiary carve-out of the defendant’s constitutional rights is understandable. It is common legal lore that rape defendants would habitually drag up the victim’s sexual history, either to embarrass them out of proceeding with the complaint or to induce the jury to draw the allegedly once-common—but today rightly legally unspeakable and unmentionable in polite society—inference that the accuser is a slut who had it coming.
But that is not the only inference to be drawn from such evidence. It is also quite reasonable to draw the inference that the woman is just innocently more sexually adventurous than most and that the man’s story is therefore more credible than it would be with respect to other women.
Under the prior, more sensible general rule of evidence, this evidence would have been admitted in most cases:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Fed. R. Evid. 403 (emphasis added).
This is the more reasonable standard: Evidence of the alleged victim’s past sexual conduct will be excluded if it is introduced solely to embarrass the victim, but is generally admissible if it has substantial probative value to an intelligent, non-prejudiced finder of fact.
A prize will be awarded for the first commenter who says something along the lines of So you think it is ok to rape non-virgins, huh?!
