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

I thought it might help to know how rules barring victim sexual history tend to play out in criminal courts. I have not done exhaustive research on this so I am just speaking from my own experience as a prosecutor. As much as a without-exception rule sounds logical, in fact there have always been exceptions and the trend has been for criminal laws to define those exceptions more and more. What that means for me as a prosecutor is that I always have to make sure that judges get the fundamental purpose of the rule before they look at whether there is an exception, and that there is an absolute prohibition against needlessly humiliating any victim.

The kinds of exceptions that I've seen typically have to do with either (1) a prior (and occasionally subsequent) sexual relationship between the parties, (2) some sort of forensic evidence that does not match the accused, and so-called prior false complaints.

As to prior relationships, my goal is always to limit that to simply the fact that it occurred, and not let the defense ask any details about those events. I have to admit that if there is a *subsequent* consensual sex act, probably details are going to be allowed.

As to forensic evidence, the classic example came from the Central Park Jogger case where the DNA found during the rape exam did not match any suspects, so that the fact that she had consensual sex with someone she knew hours before the rape became relevant.

The third category, that Brett mentioned, I think has some serious pitfalls. One of the recurrent problems in rape prosecutions in England, for example, is that they are extremely judgemental if the victim has been drinking (Guardian reporter Julie Bindel is famous for saying that "alcohol is the new "short skirt." If a rape prosecution has been declined because the victim was drunk, and then she is revictimized, the second case may be turned down on the basis of "prior false complaint." Of course there is a huge difference between a declined prosecution and a false complaint. The only point I'm making is that the victim's prior complaint should not be admissible simply because the case was declined.

One other point Brett mentioned. At least in criminal cases, the only time I've seen victims mention their virginity is when they'd mentioned it during the sexual assault (e.g., "please don't do this -- I'm a virgin.") I certainly think it should be admissible that she said that, but I do not think it should be permissible to ask her if that statement was true.

Alice Vachss

  

----- Original Message -----

From: Brett Sokolow

Sent: 11/16/12 09:19 AM

To: summer little

Subject: Re: sexual history relevance in student conduct proceedings

The intention is to allow victims to introduce their own sexual history (such as virginity) and to be able to discuss relevant sexual history (prior abuse) with the accused. The accused is not permitted to use sexual character or history information against the victim except in rare cases such as previous false complaints. Aren't many of those. 

Brett A. Sokolow, Esq.

Managing Partner, NCHERM

Executive Director, NABITA

Executive Director, ATIXA

610.993.0229

www.Ncherm.org

www.Nabita.org

www.Atixa.org

Sent from my iPhone

On Nov 16, 2012, at 9:32 AM, "summer little" <> wrote:
 

Hi all,

What is your take on a claimant's sexual history being (possibly/rarely) relevant in a student conduct hearing for sexual assault?

 

I see that the Univ of Virginia allows the possibility--where is everyone else on this?

Summer A Little
Interim Director/Program Manager
UNM Women's Resource Center
MSC06 3910
#1 University of New Mexico
Albuquerque, NM 87131
505.277.3716
505.277.2913 (fax)

women.unm.edu