Sexual assault, like many other crimes, usually occurs when no one’s watching. Given the absence of a third party witness, how are we to decide guilt/innocence?
Circumstantial evidence is often not helpful because consent, that which differentiates between legal and illegal sex among adults, is essentially a mental event, and of this there can be no evidence: a brain scan won’t show us whether or not a person consented.
Considering consent as a behavioural event, a gesture or a word expressive of consent, is not much better: evidence is possible, but unlikely-even if an audio or video tape of the event exists, one must establish the absence of coercion for any consensual gestures and words.
In a way, things were better when force and resistance differentiated between legal and illegal sex: evidence of this is easily available-torn clothing, bruised body parts, etc. However, we recognize that force and resistance, and perhaps more often torn clothing and bruised body parts, may be part of consensual sex; we also recognize that force may not be physical and resistance may not be wise.
Left without such circumstantial evidence, we must therefore base our decision of guilt/innocence on credibility–specifically (1) which person is more likely to be telling the truth, and (2) which story is more likely to be true. In both cases, the ‘rape shield’ hinders rather than helps our decision. Questioning the accuser about her/his sexual history, as well as about her/his character and motive, may indeed provide relevant information. Questioning the accused about his/her sexual history, character, and motive may also provide relevant information. Both lines of questioning should be common in cases that must be decided without circumstantial evidence.
Consider Woman A: she is sexually active and often goes to bars to ‘pick up’ men; she cruises, chooses, and queries-if he consents, they drive to her place. Suppose she once changes her mind and the man persists. She may, quite reasonably, decide not to lay charges of rape; she would not expect anyone to believe her. Given her past practice (her sexual history), it would, in fact, not be reasonable to believe her.
Consider Woman B: she is celibate and solitary. Suppose a man were to enter her residence and rape her. She, reasonably enough, would lay charges; she would expect to be believed. Given her past practice (her sexual history, or rather the lack thereof), it would be very reasonable to do so. It is crucial therefore for that past practice, the fact of her long term celibacy and solitude, to be admissible.
Likewise, the past practice of the man should be admissible: a history of habitually raping women, for example, is relevant; a history completely devoid of aggression is also relevant.
Such information is relevant, however, only insofar as we are creatures of habit, people with tendencies. To say past practice is relevant is to assume that people by and large are consistent in their behaviour. This may not, in fact, be the case: people are inconsistent, people change, people do things for the first time, people do things ‘out of character’-all of this is true. Just because a woman consented to sex with twenty strangers before this one doesn’t mean she consented to this one. And just because a man raped twenty women before her doesn’t mean he raped her. Just because the sun has risen every day until now doesn’t mean I can know with certainty that it will rise tomorrow; but probably it will. And probabilities are all we have, especially when there are no witnesses. If a person typically gets drunk on Saturday night and becomes very generous, lending cash and car keys, then his/her charge of theft some Sunday morning is going to be a tough one to make stick; people will reasonably conclude that probably s/he consented to the transaction.
Yes, information about one’s past may be misused; but this is not a good reason to prohibit its use: baseball bats can be misused too but we don’t therefore make them illegal. Rather, it’s up to the court officials to say ‘Wait a minute, that’s a non sequitur, that’s irrelevant’. And if the case in question involves consent, sex, and a stranger, probability based on past practice with regard to consent, sex, and strangers is what’s most relevant; information about such past practice should therefore be admissible.
It may, however, be the only information that’s relevant: arguments to character are of questionable validity-‘She’s sexually active, therefore she’s a slut, and sluts lie'; ‘She’s a teacher, therefore she must be morally upright, therefore she would not lie'; ‘She’s an atheist, therefore she’s immoral, therefore she would lie'; etc. Arguments to motive are also questionable, if only because this takes us back to the unknowable mental event.
Most of the items mentioned in discussions about the rape shield would also be irrelevant-medical records, adoption files, child welfare records, and abortion files. A personal diary, however, may be relevant: if the woman had written in her diary the night before the alleged rape, “I intend to get laid tomorrow night and it doesn’t matter by who-and the more it hurts and the more afraid I am, the better-and I’ll lie about consenting just to make my life a little more interesting,” then that entry should be admissible; likewise, if the man had written in his diary “Tomorrow is Victim Number Ten-I’ve got my knife sharpened and ready to go-I get hard just thinking about raping whoever it’ll happen to be,” then that should be admissible.
However, hearsay has always been inadmissible, so entries such as “He said he was going to rape me” or “She said she wanted me” would not be admissible.
If judges do order such irrelevant records to be turned over, then that’s the problem-and the solution is not a restriction on the admissibility of all personal records/history but mandatory Logic 101 for court officials. (To use one example, drug use does not show general disregard for the law, and most of my students could point out the fallacies in such an argument.)
To summarize, (1) we can’t have certainty, we can have only probability; (2) past practice can be (not is) relevant to probability; therefore (3) information about relevant past practice, of both the accuser and the accused, should be admissible in court.