Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

 one of my favorite topics!

you don't need rape-shield - or DV shield - or any other such nonsense 

all you need to do is articulate the idea of relevancy to a judge with a 
brain - 

if the past provides no probative value, then it's "shielded" by irrelevancy 
- and that's enough

the reason rape-shield laws were enacted was to give dopey judges a kick in 
the head - and REMIND them to THINK about the concept of relevancy before 
admitting - knee-jerk style - all past sexual activity under the theory it 
somehow proves consent on the night in question.  In other words - she had a 
habit of having sex - thus she must have been doing her "habit" with the 
defendant.  rape shield laws were "special" rules - created for rape trials 
NOT because women needed special affirmative action-type support - but 
because the system was engaging in unfair evidentiary rulings ONLY in rape 
trials.  there was no need for a robbery-victim shield law because courts 
managed to understand that a past history of philanthropy proved nothing 
about whether a person "gave away" their property on the night in question.

so - the key is NOT to ask for "special rules" in school proceedings - for 
sex cases or DV cases - and there shoudl be no push to extend rape shield 
laws at all - indeed, i argue in one of my lectures that rape shield should 
be abolished completely - 

the important point to make is that relevancy matters - and that irrelevant 
evidence should be kept out because it is distracting, misleading - and 
ultimately distorts, rather than elucidates the truth - 

you might in some cases have to argue that "marginally probative value is 
outweighed by prejudice, risk of distraction etc - in other words - it's 
possible someone will argue that a victim's past reveals motive, etc - but 
the catch-all claim that past victim behavior will help prove "motive or 
intent" - or some such claim - is usually a pretext for the real agenda - 
which is to muddy the water with stuff that makes the fact-finder dislike the 
victim because feelings of dislike usually translate into reasonable doubt re 
guilt.

to be relevant - the evidence must be extremely close in time and subject 
matter to the event in dispute - 

the further away a bit of information is - the more powerful the argument 
that it lack probity.

sadly - however - judges are often so steeped in their own biases, they rule 
in the exact opposite manner - typically allowing in the most salacious 
evidence simply because it is salacious - they literally lose the capacity to 
think objectively about the concept of relevancy.  so forceful advocacy is 
key - and simply explaining WHY rape shield was created can help because it 
reminds the court that it was a FIX designed to slap the dumbest judges into 
thinking clearly.  this sometimes persuades the judge you're arguing in front 
of to do the right thing simply so as to avoid being one of the dummies.


wendy murphy



 

 

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Sent: Fri, Nov 6, 2009 9:05 am
Subject: SAPC Digest, Vol 1314, Issue 1










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Today's Topics:

   1. Rape Shield Laws (K.C. Quirk)


----------------------------------------------------------------------

Message: 1
Date: Thu, 5 Nov 2009 12:17:28 -0700
From: "K.C. Quirk" 
<>
Subject: Rape Shield Laws
To: 
<>
Message-ID: 
<>
Content-Type: text/plain;   charset="iso-8859-1"

A colleague of mine asked me the following question....

"have you ever seen the rape shield law used to block out past DV incidents
where no sexual assault was reported, but physical violence?"
 
"I want to use the rape shield law to block past DV incidents in a criminal
case where a victim has to testify against an officer who assaulted her.
The officer's defense attorney is trying to bring in all this irrelevant
past info about her past relationships, but it's not sexual hx, its DV.
make sense?" 

I thought I would put this out to you....

Any thoughts would be appreciated!

Silence is not consent ... do you have questions about sexual assault? Call
us!
 
 
KC Quirk
Executive Director
Rape Crisis Center of Central New Mexico
Centro Contra la Violaci?n Sexual
1025 Hermosa SE
Albuquerque, New Mexico 87108
505-266-7711 (phone) 505-268-5046 (fax)
1-888-811-8282 (toll free) 
www.rapecrisiscnm.org
 
Got Consent?




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