The Fallacy Of Rape Shield Laws

  By VennerRoad, 19th Jul 2017

Hysteria over rape has resulted in its being treated as worse than murder, often at the expense of justice.

False accuser Emma Sulkowicz

There are many lies pushed about rape and other sexual offences by organisations like Rape Crisis and Women Against Rape. One of the biggest is that of its incidence, in particular we are led to believe that the majority or even the vast majority of rapes are not reported, primarily because victims fear they will not be believed. A related lie is that the conviction rate is far too low. In order to bolster this fiction and to increase the conviction rate, regardless of the evidence, many special provisions have been enacted, including rape shield laws.

The rationale for these is the same as anonimity, to protect the sexual privacy of victims, in particular to spare an accuser from a gruelling cross-examination and having her name dragged through the mud. The same courtesy is seldom shown the accused. The history – sexual or otherwise – of both an accused and an accuser may be highly relevant. Even so, those who promote rape myths under the pretext of combatting them have succeeded in foisting the lie that it is not, onto the judicial system. For example, in Canada it is the perceived wisdom that:

“Evidence of prior acts of prostitution or allegations of prostitution are properly excluded by the provision. This evidence is never relevant and, moreover, is highly prejudicial. A prostitute is not generally more willing to consent to sexual intercourse and is no less credible as a witness because of that mode of life. There is no understandable reason for asking complainants in sexual assault cases if they are prostitutes.”

In other words, a nun is just as likely to consent to sex as a prostitute! And, taking sex out of the equation, a thrice convicted pickpocket is just as credible as a fifty year old housewife of good character.

This absurd pronouncement of the Supreme Court of Canada is in effect saying that every allegation of rape and every accuser is equally credible. Can any jurist of reason believe this? Let us take two real life examples to see just how absurd it is.

In November 1989, a woman named only as Deborah claimed to have been raped by a man named Williams. Deborah and her sister Jenny had arrived in San Francisco from Wichita; they were homeless and were living in a shelter. Williams was quite a bit older than Deborah, and probably on that account she does not appear to have been suspicious of him. After taking her for a meal he invited her to watch television at a friend’s house, but instead lured her to a room where they were to have sex.

Deborah appears to have been a bit gullible, and by the time she realised what he wanted she was alone with a much bigger man. He threatened her with violence, raped her, then offered her $50. She was indignant, told him she was not a prostitute, and on being released, went straight to the police. When she was examined shortly, one of her eyes was bruised so badly it was nearly closed, and she had other injuries, including on her lower body.

Now consider the case of Emma Sulkowicz. On August 27, 2012, she had sex with fellow Columbia University student Paul Nungesser. They’d had sex before but this was the last time, although they remained friends, and indeed exchanged banter on social media. In October, he wished her happy birthday, and she responded:

“I love you, Paul. Where are you?!?!?!?!”

Six months later she accused him of raping her on August 27, 2012.

Williams received an eight years sentence which was surprisingly reversed on a technicality, but in December 1992, the Supreme Court of California overturned the appeal and reinstated his conviction.

Although there was an internal investigation, the Sulkowicz/Nungesser case never got anywhere near a courtroom.

According to feminist so-called academics like Lisa Avalos, nothing Emma Sulkowicz did between August 27 and the following April was inconsistent with her being raped. Indeed, this appears to be a feminist consensus, and Sulkowicz achieved fame on the back of her false allegation, although she has since overplayed her hand, and her pathetic attempts to turn her faux rape into performance art are rapidly leading to a new consensus, namely that she is not right in the head.

Returning to rape shield laws, it remains to be seen if it was ever true in Western societies that women were in need of reputational protection. If one scours newspaper reports of rape trials from the early Twentieth Century, the accuser is often said to be “a married woman”, meaning this is a woman who would not consent to sex with anyone other than her husband. Since the Swinging Sixties, this qualification has become unnecessary, and in the second decade of the Twenty-First Century, any sort of qualification has become redundant. Today, homosexuals aspire to and hold high political office; men and women talk openly on chat shows and in the press about their personal lives: their addictions to drugs, their adultery, their sexual activities. There is no stigma to illegitimacy, “living in sin”, or even working in the “sex industry” for many women. What contemporary juror would regard the sexual history of an accuser as unduly impeaching her credibility? An Orthodox Jewess, an imam, or an Amish perhaps, but no one else.

It should also be pointed out that shields apply not only to accusers but to defendants, and they can be detrimental, especially in jury trials. For a discussion of this subject, see this pamphlet related to the case of Michael Stone.

Additionally, gratuitous attacks on an alleged victim, a defendant, or even a witness, can alienate a jury. In a rape trial the defendant needs to take the stand, barring exceptional circumstances. If his attorney has attempted to trash the reputation of the victim, he can expect to see his reputation trashed in turn. If he has one. And in particular if he has previous convictions, especially for any kind of sexual offence, he will lose his shield, and his goose will be cooked.

If the case of Emma Sulkowicz is amusing in a perverted sort of way, what is happening in Canada now is alarming. The recent Ghomeshi case saw not only his acquittal but the branding of his three accusers as liars, a claim only fanatics would dispute. It was clear that Lucy DeCoutere and the other two accusers had not only fabricated their evidence but conspired to do so, and had Ghomeshi not kept decade old e-mails he would be behind bars at this very moment, perhaps for several years.

Ghomeshi was not tried for rape, but if the proponents of legal dominance feminism have their way, any future such trial involving any alleged sexual offence will result in conviction, because exculpatory evidence of the kind he used to undermine his accusers will be excluded. Even if it is not, it will not be admitted in evidence without a special hearing by the judge, which will enable false accusers to tailor their evidence to explain it away. The police in the UK encouraged this, shamefully, in the Jim Davidson case.

In spite of claims that Bill C 51 was not introduced because of the Ghomeshi case, it is difficult to credit anything else. At one time when a woman cried rape she had to do so at once, and there needed to be some form of corroboration. Now, in Canada, the UK and other jurisdictions, a woman can accuse a man of rape or any sexual offence at any time including years or decades past, and the accused will find himself in the invidious position of either proving there was no sexual contact at all or that the sex was consensual. And still the sexual grievance industry is not satisfied.

Making rape both easier to prosecute and more difficult to defend, coupled with light or often no penalties for false accusers is a recipe for injustice, as malicious or simply deranged females literally queue up to make false allegations against the rich, the famous, and increasingly, ordinary men, whose lives are often destroyed by the mere allegation, the case of schoolteacher Kato Harris being a sad example.

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