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August 08, 2004

The epistemology of rape

Dahlia Lithwick criticizes the morality and utility of rape shield laws in this thought-provoking Op Ed piece, The Shield That Failed [NYT permalink]

Lithwick argues that rape shield laws are unacceptable because they deprive the defendant of potentially exculpatory evidence. If sexual history were more illuminating or less prejudicial, I would agree.

Lithwick argues that the accuser's sexual history can she light on consent, especially in the case of acquaintance rape:

But the problem in acquaintance rape cases - centered as they are on nuanced questions about the accuser's consent and the defendant's understanding of that consent - is that the legal inquiry does come down to whether she asked for it. Almost literally.
Internalism and rape

in practice, it's hard to see how a defendant's beliefs about the accuser's sexual history could justify an erroneous inference of consent. Rape shield laws shouldn't exclude evidence about an accuser's behavior on "the night in question." If a woman strips naked and hands a man a condom, he is probably entitled to infer that she is consenting to sex. However, it's hard to imagine how the background belief that a woman is promiscuous could exculpate a defendant for wrongly inferring that a woman was consenting to sex then, there, and with him.

If we are assessing the defendant's understanding of consent, we must inquire into the epistemological status of his beliefs about the defendant's sexual history. It's not enough that she be promiscious, he must also have a justified true belief that she is. Unfortunately, our knowledge of other people's sex lives tends to rest on notoriously dubious epistemic foundations. What we think we know is usually based on rumor, hearsay, speculation, and prejudice. If the defendant claims to know the accuser's sexual history by the usual means, it's pretty clear that such flimsy knowledge is insufficient to justify and serious decision. We don't exonerate people for drawing sincere conclusions based on evidence they should never have taken seriously.

Rape and ascertainment bias

The defense might argue that woman's sexual history is relevant to the jury's assessment of a woman's accusations, even this information was irrelevant to accused's inference of consent. The defense might reason by analogy: All other things being equal, it's more likely that a smoker had a cigarette last night than that a non-smoker did. Likewise, it's more likely that someone who has a lot of consensual sex also consented to the act in question.

This is an argument can be reconstructed as follows: The accuser never says "no" to anyone. What are the chances that she said "no" to the defendant? Isn't it more likely that she actually said "yes"? This argument ignores the fact that even the most sexually voracious person only consents to a fraction of the encounters that she could have. Knowing that an accuser has sex that average or less stringent standards than most people says nothing about the likelihood that she consented to a particular sex act with the defendant. However, we can be sure that no comes even comes close to taking advantage of 100% of the sexual opportunities that present themselves--if only because work, sleep, and TV intrude.

Relevance and evidence

Finaly, potential relevance isn't the only criterion that we must consider when deciding whether to admit evidence in court. I'm a good Quinean. I agree that, in principle, any piece of evidence can bear on the truth of any hypothesis. In everyday life, we are often entitled to count hearsay and speculation as evidence. If A tells me that B said she went to the store, I'm probably entitled to believe that B went. (Assuming that A is a credible source, and that it's plausible that B would have gone to the store, etc., etc.) Or, if A says "B said she was going to the store, but I think she was lying," If I know A to be shrewd and charitable interpreter, I might be entitled to take her allegation seriously. It all depends. Yet, we agree that courts should not admit hearsay and speculation as evidence. Granted, these types of testimony are excluded for slightly different reasons than might be adduced in favor of a rape shield. My point is simply that a defendant isn't automatically entitled to cite any kind of evidence in his own defense, even if that kind of reasoning would be considered relevant to ordinary inferences.


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You make some cogent points, though, there is one I have a hard time understanding. First, I can't see how the defendant’s inference of the sexual promiscuity/history of an accuser matters at the time of said act. The defendant certainly doesn’t have access to the accuser’s sexual history right up before or during the act—if we’re talking about acquaintance rape—so the inference made doesn’t matter much. The problem arises when conflicting stories about the sexual act pit the word of the accuser against that of the defendant.

The defender justifies his act by saying, in effect, “the impression I received that night from the accuser lead me to infer that she was interested in a sexual engagement” (consent). Why is there a need for true justified belief in this situation? And can that ever be possible? The accuser can rightly counter that no such inference could have been drawn from her actions that night and that the sexual engagement was unwanted (no consent).

Since the burden of proof is beyond reasonable doubt, the prosecution must prove that not only was the defendant’s inference of consent erroneous, but that also the defendant had willful intent to rape the accuser. This is where physical evidence becomes determinative of intent (most of the time) and consent (sometimes).

For example, Kobe Bryant’s accuser had sexual engagements with two other men 42 hours after her encounter with Bryant, and before a thorough sexual examination. Therefore, any harm during 42 to 72 hours after her sexual encounter with Kobe becomes difficult to attribute to Kobe alone, since the sexual exam was done after all these sexual encounters. The prosecution will not be able to prove beyond a reasonable doubt the accuser’s claim that the sex was not consensual because the physical evidence is inconclusive. This is not to say that the accuser’s allegations are false, just that, considering the indeterminacy of the physical evidence, and the inability to definitively know what happened that night, the jury would be inclined to acquit Bryant. That is one reason why the accuser is dropping the case

A woman accuses a man of stealing ten dollars. He agrees that he took the money, but says that she gave it to him. The woman is known to frequently hand out ten dollar bills in circumstances very much like both accuser and defendent describe. Is this not relevant to judging the plausability of the defense? Shouldn't it be allowed?

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