Men’s sexual history and rape cases

Rape cases, particularly those involving people who know each other, or who have been drinking/taking drugs, are difficult to prosecute. Juries essentially have to decide whether or not the sex was consensual. The usual way to do this – notoriously – is to consider (amongst other things) the woman’s past sexual history, to try and decide whether she is the sort of woman who is likely to have consented. Now – in what is an obvious, and welcome move – Alison Saunders, the Director of Public Prosecutions, has instructed prosecutors to focus more on the man’s sexual history, to assess whether he is the sort of man who is likely to have forced sex on someone without her consent.

This may include situations where an alleged rapist exercised controlling or coercive behaviour towards other women, including previous girlfriends.

There has been growing concern that many male rapists are getting away with their crimes because they are able to convince juries that the sex was consensual.

Victims who are too drunk to consent or give a lucid account of events are also often not believed when they give evidence under cross-examination.

The new move will see evidence collected from a variety of sources including CCTV, social media accounts and testimonies from witnesses, who may have seen the attacker’s behaviour in the hours leading up to the rape.

Ms Saunders said she wanted to see more attention being given to events leading up to an attack, so that juries were able to assess the whole picture.

She said: “We are looking at how to prosecute certain types of cases, the more difficult ones. They tend to involve drugs or drink and people who know each other.”

She said exploring the background of an alleged rapist, would also be key, with their social media history and habits likely to be relevant.

She told the Evening Standard: “Some of it will be if you have already been in a relationship, understanding the dynamics of coercive and controlling behaviour and presenting cases in a way that doesn’t just look at the individual incident.”

She added: “If it’s about drink and drugs in some of them there will have been a targeting element, either by buying drinks or standing back until you pick someone off.”

You can read more here.

One thought on “Men’s sexual history and rape cases

  1. Some parts of this seem completely reasonable, and I’d be glad to see them implemented. For example, looking at behavior immediately (or soon) before the disputed events, whether by video or testimony, sounds unobjectionable, at least insofar as it goes to what, in U.S. evidence law, would be called “current state of mind” of the alleged perpetrator. The broader investigation seems more problematic to me,for just the reason that so-called “character” evidence is usually excluded in the U.S. – there is a strong tendency for it to prejudicial and only a week tendency to be dispositive. (If we’re skeptical about character in general, as we ought to be, then this is maybe even more the case.) It’s unclear why character evidence against the accused should be allowed when it’s not allowed as a defense. I don’t know if such a rule would violate UK rules on evidence (as they probably would in the US, though evidence isn’t my area of specialty and it’s been a while since I studied the rules carefully) but I would be hesitant to allow such changes to be made. One reason is that I doubt they could be contained to this one area, but even beyond that, I am skeptical that the outcome of including more ‘character’ evidence will be good.

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