Rape cases are notoriously difficult to prosecute, especially when many are in private and many involve being on a date with someone. To complicate things, as mentioned, the woman might not struggle for fear of greater harm being done, despite verbal protestations, and so physical evidence might be inconclusive at best.nerdanel wrote:Should he not be permitted to show that she has previously been intimate with eight other guys under similar circumstances, especially if it's otherwise "he said, she said" and that's the best he's got? It's a hard question.
So unfortunately in many cases it comes down to a balance of probabilities, the 'he said, she said' state. And that is where the credibility and past behaviour comes in, where the jury and infer and extrapolate - but not necessarily to the right conclusion. A weighted average.
Someone here hypothesized that a defendant might want to introduce the alleged victim's past sexual history (if fairly active):
I reject those hypotheses out of hand. I think it would be to increase in the jury's mind the chance that she actually consented to sex.... to trivialize the charge, that is, to introduce the thinking to the jury, what does it really matter if a woman who has allowed intimacy with so many men, has intimacy with yet another forced upon her? And to generally prejudice the jury against the woman (since as you observed they would probably think worse of her if she had many sexual partners).
The arguments in favour of introducing history, whether it is rape or another crime, I think are flawed - to allow so would be inherently prejudicial against women with active sex lives. "No" means "no" at any time.
In a criminal trial, it is 'beyond a reasonable doubt' and the facts at the time must speak for themselves. In a civil trial it becomes a balance of probabilities, so I would be in favour of history.
What I strongly and utterly object to is the introduction of whether the woman is a prostitute. It has not, and cannot have, any bearing on the matter. If a prostitute is forced into sex by a pimp or boyfriend, then all that means is that she has been raped many times in the past. If she is not forced into sex, then she consents to have sex and has the ability to say no like everybody else. She doesn't have to walk up to every passing car and she can make excuses if it is a brothel.
), and generally considered to be very good looking. 
