This week, the House of Lords in Britain have to decide whether a woman who has allegedly been raped should have to divulge her sexual history in open court. The proponents of the issue claim that a woman’s sexual history is an important aspect of the accused rapist’s defense. The opponents of the issue are understandably unmoved; to them, rape is rape, regardless whether it involves a sexually active or inactive woman. The truth of the matter probably lies somewhere in between the two opinions.
The rape of a woman is a terrible thing – as an act of violence, it causes a great deal of physical pain and suffering. But it doesn’t just end there; often the emotional fallout is much more damaging. Most rape victims will feel that they have been stripped of their dignity, their self-worth. Many feel violated, scarred and "dirty", emotions that don’t go away easily. Without a doubt, it is a terrible crime, one that warrants the harshest possible punishment under the law.
The law, the law
In all democracies, the judiciary interprets the law and applies it according to a case by case basis – the theory being that since no two circumstances are same, a separate judicial process has to be applied when each case is brought forward. This process, in rape cases, involves an accuser and the accused. Both have rights, one to press the claim that the defendant did indeed commit the act of rape, while the defendant has the right to defend himself. The question before the law lords of Britain is how far does the right of the defendant go?
A common defense for an alleged rapist is to reverse the charge upon his (assuming that the rapist is a man) accuser. By digging up her sexual history, he places a burden on her to prove that she isn’t fabricating her claim against him. If she is a virgin, well, then he’s probably out of luck with this particular defense strategy. But if she is sexually active, his logic does seem very compelling.
Imagine this scenario: a woman and this man have been going out for some time. On one particular meeting, one things leads to another and they have sex – completely consensual. But the next morning, she finds out that he’s been cheating on her, and she decides to take revenge. She claims that she has been raped. Before she lodges a police report, she bangs herself up a bit to give her some of the necessary bruises. Then she goes for a medical examination to certify that she has had sexual intercourse in the last 24 hours, and gathers some DNA evidence. More likely than not, the police will drag the guy in for questioning, not be impressed with his claims that he didn’t do it and next thing you know, the case is brought to court. What defense does he have?
He can say he didn’t do it: then it becomes his word against his. In a jury system, the jury may very well be swayed by sympathy for the woman. At best, his chances are 50-50. He’s innocent: how does he prove it?
In such a situation, being able to bring up the accuser’s sexual history may help him prove his innocence. She’s slept around with many men, she has a history of being vengeful when things turn sour; from such information, the defendant may be able to prove that her past actions show a trend of accepting men into her bed, thus strengthening his claim that the act was consensual. He couldn’t have raped her because she wanted it too – consent negates the possibility of rape.
With such information, the scales would normally tip into the defendant’s favor – juries would be given a clear indication of reasonable doubt and this would be enough justification for them to acquit the accused.
But what if he did really rape her?
It seems terribly unfair to bring up a woman’s sexual history and use it against her. The logical connection between the rape and the fact that she had slept with other men simply does not exist; if that logic were valid, it would mean that only virgins could be raped. Any woman who has ever slept with another man, automatically has her past actions working for her rapist’s defense. Maybe that’s a reason why so few women have the courage to bring their cases forward – according to the National Organization for Women (NOW) in the US, less than 35% of all women who have been raped actually lodge a police report.
"I would rather free 10 criminals than jail a single innocent man."
Even though all the above is true, difficult as it is to accept, the law lords should allow the defendants in a rape case to bring up the sexual history of their accusers. Some precedence does exist: whenever someone is brought to trial for committing a crime, a past criminal record always counts against the defendant under the logic that someone who has committed a crime before is more likely to commit a crime again as compared to someone who doesn’t have a criminal record. The same rule should apply here. This rule may lead to the acquittals of genuine rapists but it would also protect the rights of those who are truly innocent.
Appearing on www.renungan.com 30 March 2001
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