Arkansas’ Rape Shield Undermined

Here’s another example of what can go wrong when judges are asked to draw legal conclusions about situations and experiences they don’t understand: <a href=”http://www.feministlawprofessors.com/2011/12/only-exception-arkansas-case-reveals-danger-states-undifferentiated-rape-shield-exception/”>a defendant in a sexual assault trial was able to raise the fact that a teenaged girl had previously accused another person of abuse, as evidence of her “credibility.”</a>

I agree that defendants in these types of trials should be able to introduce any evidence showing the alleged victim had actually <i>fabricated</i> abuse allegations in the past, particularly if the previous false accusations had led to someone’s arrest or prosecution. But here, there’s no evidence that the previous accusation was fabricated, just evidence that the previous alleged abuser was not convicted and continues to deny the abuse. Anyone with even a <i>tiny</i> bit of experience dealing with abuse survivors, or honestly <i>almost any</i> criminal law, should know that the fact someone wasn’t tried and convicted is <i>not</i> particularly probative evidence that the complainant was lying. The American criminal justice system is <i>set up</i> to make it very hard to convict people, even people who are actually guilty, and prosecutors often decide against bringing a person to trial if the only evidence they have is the testimony of the complainant, especially if the complainant is a young child. And it only takes a tiny shred of common sense to know that the fact that the accused person is willing to take the stand and deny the abuse is also not particularly probative evidence that the complainant was lying.

Moreover, anyone who knows much about the experiences of sexual assault survivors would know how prejudicial this kind of evidence is. If the jury doesn’t have enough knowledge about the system to understand how hard it is to get a conviction even when the defendant is guilty, they might think it means more about the complaining witness’s credibility than it actually does. Even if the jury understood that the evidence didn’t shed much light on the victim’s credibility, there’s a significant possibility that, like many Americans, some jurors see sexual assault as a violation of the victim’s purity and not of the victim’s autonomy and safety, and would therefore be less outraged by the current defendant’s behavior because the victim had already been abused once before.

Of course, the judge didn’t have to find that the proposed evidence was <i>conclusive</i> in order to admit it. He just had to find that its probative value outweighed the potential for prejudice, with the awareness that, as a general matter, evidence of prior sexual conduct by the complaining witness in sexual abuse trials is <i>generally</i> considered more prejudicial than probative. But in this case, the evidence is not particularly probative and potentially very prejudicial.

Assuming that the judge is <i>trying</i> to do right by both parties in this case, it’s likely that the reason he went wrong in this case is because he never seriously thought about what you’d normally expect to happen when a young girl is actually abused: whether you’d actually expect law enforcement to be able to collect sufficient corroborating evidence to prove the abuse beyond a reasonable doubt. A lot of people, unfortunately, <i>never</i> think seriously about what they’d expect to happen in that situation because it’s unpleasant and they don’t think they have to. They probably don’t even realize that their intuitions and assumptions (“the criminal justice system works perfectly, so any crime that actually happened would probably have led to a conviction”) are probably not correct.

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1 Comment

Filed under Children's Rights, Feminism, The Law as Applied to Weird People & Situations

One response to “Arkansas’ Rape Shield Undermined

  1. tielserrath

    like many Americans, some jurors see sexual assault as a violation of the victim’s purity and not of the victim’s autonomy and safety, and would therefore be less outraged by the current defendant’s behavior because the victim had already been abused once before.

    This is just horrifying.

    And as an ex sexual assault forensic physician, the belief in false accusation of rape drives me up the wall. We had to be so sure of the quality of our evidence, of the victim’s preparedness to cope with the court ‘experience’.

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