I’ve been practicing law just long enough to know that I will never make sense of it all. It’s not that I am stupid, although my shortcomings are certainly an issue. The larger truth is that the law is irrational. It bumps, grinds and gyrates in ways that simply make no sense.
This is especially true in criminal cases alleging sexual misconduct.
Suppose a man is accused of rape. He is, of course, presumed innocent, but the details of his arrest are made public. In the eyes of many, he is condemned by mere accusation. We know the shaming power of a public accusation. Indeed, we know how devastating it is to be an accuser. Hence, in court proceedings, the alleged victim is accorded every courtesy: her name is kept from public view. Even if she testifies, the court engages in elaborate choreography to make sure her name is never mentioned aloud.
Why isn’t the accused accorded the same courtesy? He is presumed innocent, right?
But things often get worse.
There is a general rule against propensity evidence in the law. You can’t show that a person is likely to have committed a crime by demonstrating that he has committed all sorts of other bad acts. A person stands trial for the offense charged. His character is not at issue.
There are exceptions to this rule, of course, as there are to almost every other rule of law. The state can offer evidence of other acts to show intent, motive, absence of mistake, and all sorts of other factors. But in general, the rule against propensity evidence is strictly enforced
Except, you guessed it, in sexual assault cases.
Our state Supreme Court has ruled that these cases get special treatment. The rule prohibiting the admissibility of propensity evidence is relaxed. Why? Sex is different. According to the Supreme Court, sex acts are often compulsive in character – a curious, almost Freudian, sort of admission on the part of the court – and sex crimes are almost always secretive. It is comparatively easy for the state to offer evidence of other allegations of sexual misconduct, whether resulting in criminal charges or not, but only against a defendant.
Such evidence is often fatal. It’s one thing to assert that you were struck by lightning as you walked the golf course and don’t know why you were zapped. But if you are struck repeatedly as you walk those greens, folks will start to wonder just what you’ve got in your hand. In sex cases, the offending instrument is rarely an umbrella.
So let me see if I get it. Sex acts are furtive, compulsive and require special treatment to determine just what happened. Okay. Then how about even-handed application of that rule? Let’s inquire about the accuser, shall we?
Try shining the same light on an accuser, and you’ll stub your toes on the rape shield statute. That law makes it all but impossible to bring to a jury’s attention an accuser’s sexual history. Why? Such information might be “prejudicial.” But I thought prior acts might be probative in sex cases?
Did the complainant come on to the accused? If she denies it, you can’t produceevidence of other licentious acts she committed. The accuser might be a familiar port in many libidinal storms, but she is presented to the jury as a figure as innocent as the Statue of Liberty.
So the man presumed innocent has his sexual past displayed for the jury, even if that past did not involve the victim at all. His accuser gets a free ride. The jury is kept from knowing details about the accuser, while bathed in all the goo the state can find about the accused. And we telegraph to the jury where our affections lie by treating the victim as so sacred she cannot be named. The accused, of course, is named, and shamed, before the world at large.
It’s enough to make my head spin. But, then again, I am a lawyer. I’ve been practicing law just long enough to know that I will never make sense of it all.