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 Peg's
Polemic
Every
month, philosopher Peg Tittle casts off the calm, measured and qualified
style of her profession to deliver her opinionated and impassioned
column, exclusively for the TPM philosophy café...
Number
31. Against
the Rape Shield
Sexual
assault, like many other crimes, usually occurs when no one's watching.
Given the absence of a third party witness, how are we to decide
guilt/innocence?
Circumstantial
evidence is often not helpful because consent, that which differentiates
between legal and illegal sex among adults, is essentially a mental
event, and of this there can be no evidence: a brain scan won't
show whether or not A consented. Even if consent is a physical event,
a gesture or a word, evidence is unlikely: tapes may exist, but
we can't know whether there was coercion (a previous threat, for
example).
Left
without such circumstantial evidence, we must base our decision
of guilt/innocence on credibility: (1) which person is more likely
to be telling the truth? (2) which story is more likely to be true?
In both cases, the 'rape shield' hinders rather than helps. Questioning
the accuser about her sexual history, as well as about her character
and motive, may indeed provide relevant information. Questioning
the accused about his sexual history, character, and motive may
also provide relevant information. Both lines of questioning
should, therefore, be common in cases that must be decided without
circumstantial evidence.
Consider
Woman A: she is sexually active and often goes to bars to 'pick
up' men; she cruises, chooses, and queries--if they consent, they
drive to her place. Suppose once she changes her mind and the man
persists; she may, quite reasonably, decide not to lay charges of
rape--she would not expect anyone to believe her--given her past
practice (her sexual history), it would, in fact, not be reasonable
to believe her.
Consider
Woman B: she is celibate and solitary. Suppose a man enters her
residence and rapes her; she, reasonably enough, would lay
charges--she would expect to be believed--given her past practice
(her sexual history, or rather the lack thereof), it would be very
reasonable to do so. It is crucial, therefore, for that past
practice--the fact of her long term celibacy and solitude--to be
admissible.
Likewise,
the past practice of the man should be admissible: a history of
habitually raping women, for example, is relevant; a history completely
devoid of aggression is also relevant.
However,
to say past practice is relevant is to assume that people are consistent
in their behaviour. This may not, in fact, be the case: people are
inconsistent, people change, people do things for the first time,
people do things 'out of character'--all of this is true. Just because
a woman consented to sex with twenty strangers before this one doesn't
mean she consented to this one. And just because a man raped twenty
women before her doesn't mean he raped her. Just because the sun
has risen every day until now doesn't mean I can know with certainty
that it will rise tomorrow; but probably it will. And probabilities
are all we have, especially when there are no witnesses. So if the
case in question involves consent, sex, and a stranger, information
about past practice with regard to consent, sex, and strangers is
relevant, as the basis for probability.
However,
that may be the only information that's relevant: arguments
to character are of questionable validity--'she's sexually active
therefore she's a slut and sluts lie,' 'she's a teacher therefore
she must be morally upright therefore she would not lie,'
etc.; arguments to motive are also questionable--if only because
this takes us back to the unknowable mental event.
Most
of the items mentioned in discussions about the rape shield would
also be irrelevant--medical records, adoption files, child welfare
records, and abortion files. A personal diary, however, may
be relevant: if the woman had written in her diary the night before
the alleged rape, "I intend to get laid tomorrow night, it
doesn't matter by who, and I'll lie about consenting just to make
my life a little more interesting," then I think that that
entry should be admissible; likewise, if the man had written in
his diary "Tomorrow is Victim Number Ten, who will she be?"
then that should be admissible. (However, since hearsay has always
been inadmissible, entries such as "He said he was going to
rape me" or "She said she wanted me" would not be
admissible.)
In
short, (1) we can't have certainty, we can have only probability;
(2) past practice can be (not is) relevant to probability;
therefore (3) information about relevant past practice, of both
the accuser and the accused, should be admissible in court.
.
Peg's
Polemic will next be updated mid August 2003
Previous
polemics
30.
29.
28.
27.
26.
25.
24.
23.
22.
21.
20.
19.
18.
17.
16.
15.
14.
13.
12.
11.
10.
9.
8.
7.
6.
5.
4.
3.
2.
1.
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