Sunday, August 08, 2004

The Epistemology of Rape

Majikthise makes some cogent points about the epistemology of rape, though, there is one I have a hard time understanding. First, I can't see how the defendant’s inference of the sexual promiscuity/history of an accuser matters at the time of said act. The defendant certainly doesn’t have access to the accuser’s sexual history right up before or during the act—if we’re talking about acquaintance rape—so the inference made doesn’t matter much. The problem arises when conflicting stories about the sexual act pit the word of the accuser against that of the defendant.

The defender justifies his act by saying, in effect, “the impression I received that night from the accuser lead me to infer that she was interested in a sexual engagement” (consent). Why is there a need for true justified belief in this situation? And can that ever be possible? The accuser can rightly counter that no such inference could have been drawn from her actions that night and that the sexual engagement was unwanted (no consent).

Since the burden of proof is beyond reasonable doubt, the prosecution must prove that not only was the defendant’s inference of consent erroneous, but that also the defendant had willful intent to rape the accuser. This is where physical evidence becomes determinative of intent (most of the time) and consent (sometimes).

For example, Kobe Bryant’s accuser had sexual engagements with two other men 42 hours after her encounter with Bryant, and before a thorough sexual examination. Therefore, any harm during 42 to 72 hours after her sexual encounter with Kobe becomes difficult to attribute to Kobe alone, since the sexual exam was done after all these sexual encounters. The prosecution will not be able to prove beyond a reasonable doubt the accuser’s claim that the sex was not consensual because the physical evidence is inconclusive.

This is not to say that the accuser’s allegations are false, just that, considering the indeterminacy of the physical evidence, and the inability to definitively know what happened that night, the jury would be inclined to acquit Bryant. That is one reason why the accuser is dropping the case.


Anonymous said...

Thanks for the link. I agree that the accuser's sexual history is irrelevant to the vast majority of rape cases. On the other hand, if there were a case where it mattered, it would be unfair to the defendant to throw out exculpatory evidence.

I suspect that the accuser's sexual history is always irrelevant either to consent or to the defendant's understanding of consent. Still, I'd want to see a very compelling argument to show why it couldn't ever matter. So far, I can't see how, but that might just be a failure of my imagination.

In the Kobe Bryant case, DNA evidence shows that the accuser had sex with someone besides Bryant on the night in question. This evidence is highly relevant because it raises the possibility that someone else was responsible for the accuser's injuries. Rape shield laws don't (and shouldn't) apply to physical evidenceMajikthise

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