Defense Attorneys and Victims of Sex Crimes

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Defense Attorneys and Victims of Sex Crimes

Postby cmsellers » Mon Dec 18, 2017 12:44 am

TinyRick had a complaint on the Trump thread that stuck out at me.

tinyrick wrote:Trump tweeting crap Alan Dershowitz says on Fox & Friends. Didn't Dershowitz get famous by defending an obviously guilty client, who was also a beloved public figure, and getting him off by swaying public opinion?

The complaint, essentially, is that Dershowitz did his job as a defense attorney. I see this a lot in media depictions of defense attorneys: the view that their job is getting guilty people off. In fact their job is to do the best that they can for their client: regardless of whether their client is innocent or guilty everyone deserves a fair trial.

However I used to be an admirer of Alan Dershowitz, until he did something else that defense attorneys often do: he defended child-rapist Jeffrey Epstein by smearing his victims. If you're bringing charges of sexual assault against someone, you can almost guarantee that you will be cross-examined about your drug use, your sexual history, and all sorts of sundry other sordid details, and you will likely face witnesses lying about those things as well. This is a major reason why sex crimes are rarely prosecuted: few victims are willing to go through with the ordeal our justice system has decided they must endure.

Now, I don't understand why evidence about the victim's past sexual behavior or drug or alcohol use is considered relevant in the first place (I think I may have sent up the avi signal here), but our courts have deemed it relevant. Thus, what Dershowitz did is not only legal, but under the premise defense attorneys are obligated to do everything they can to help their clients he was arguably obligated to do what he did. You can argue he didn't have to take the case, but if defense attorneys only took cases they morally supported we'd have a serious problem.

As a rule, I don't judge defense attorneys for using any means in their power to get their clients off, but I make an exception for the tactics typically used in defending against sex crimes. I believe that it is morally wrong to smear victims of sexual assault in order to get your client off, that this is qualitatively different from putting your client in a position where they're free to commit more crimes.

I can make two arguments for why this is. The first is that sex crimes are the only example I know of where this pattern of behavior is routine, and I would likely be just as appalled if it happened in other cases. However I don't think that "the burglary victims were bringing it on by posting on Facebook that they were out to dinner," would appeal to juries in the same way that victim-blaming for sex crimes does, and therefore it's not something I see enough to object to. The second difference is that you're forcing victims not merely to relive their ordeals but to undergo a new ordeal as you drag their name through the mud. As I see it, there's a difference between helping your client remain free to commit new crimes and committing an injury against your client's victim yourself.

However I suspect that some people will disagree with me both that it's acceptable for defense attorneys to work to get people they know are guilty off, and that some people will insist that I'm wrong and there's no principled way to distinguish smearing the victims of a child rapist and getting a celebrity murderer off the hook (some of them may even be the same people). So I feel like this is a question worth discussing.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby Grimstone » Mon Dec 18, 2017 1:00 am

I'm guessing that a person's character/credibility becomes relevant in cases involving their word vs another.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby cmsellers » Mon Dec 18, 2017 4:37 am

Grimstone wrote:I'm guessing that a person's character/credibility becomes relevant in cases involving their word vs another.

If a person has a history of lying, that is relevant.

I'm aware of no evidence whatsoever that people who sleep around or engage in underage drinking are even the tiniest bit more likely to lie about being sexually assaulted.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby Grimstone » Mon Dec 18, 2017 6:24 am

cmsellers wrote:I'm aware of no evidence whatsoever that people who sleep around or engage in underage drinking are even the tiniest bit more likely to lie about being sexually assaulted.


Well, that's why I threw in the word 'character' which brings morality into question and is subjective by nature.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby Absentia » Mon Dec 18, 2017 9:00 am

I think I got this from an episode of Law & Order, or possibly a movie, but either way it's an important thing to keep in mind: If we're going to take somebody's liberty (and possibly life) away for being convicted of a crime, it's comforting to know that they were only convicted after the prosecutor's case survived the scrutiny of a defense attorney who was empowered and incentivized to do damn near anything to get their client off. I want to be really, really sure that the guy we're locking up is guilty.

In the case of mudslinging against sexual assault victims it may be appropriate for judges and lawmakers to limit the scope of what is considered relevant, but that's not the defense attorney's responsibility.

cmsellers wrote:
Grimstone wrote:I'm guessing that a person's character/credibility becomes relevant in cases involving their word vs another.

If a person has a history of lying, that is relevant.

I'm aware of no evidence whatsoever that people who sleep around or engage in underage drinking are even the tiniest bit more likely to lie about being sexually assaulted.


I think the point is to suggest that somebody promiscuous and/or drunk would be more likely give consent.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby Crimson847 » Mon Dec 18, 2017 10:10 am

cmsellers wrote:If you're bringing charges of sexual assault against someone, you can almost guarantee that you will be cross-examined about your drug use, your sexual history, and all sorts of sundry other sordid details, and you will likely face witnesses lying about those things as well.


AFAIK rape shield laws prohibit questioning defendants in rape cases about their sexual behavior or introducing evidence on that subject.

https://en.wikipedia.org/wiki/Rape_shie ... ted_States
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Re: Defense Attorneys and Victims of Sex Crimes

Postby IamNotCreepy » Mon Dec 18, 2017 2:32 pm

I think there is a big difference in the nature of certain sex crimes and why some would think it is acceptable to question the character of a rape victim. The difference is that the defense is not necessarily trying to prove that the defendant didn't commit the crime but rather that there was no crime that took place at all.

The "best" way to do this would be to convince the jury that the victim actually consented to the act. And how would you try to prove that the person consented? By establishing a pattern of behavior.

I am deeply uncomfortable with the way that rape victims are smeared and questioned, but I have a hard time seeing another way. The problem is that if the victim truly was lying or had in fact consented, how else would an innocent person try to defend himself?

Our discomfort with this tactic assumes that there was indeed a crime, and therefore that the defendant is guilty. This line of questioning is unfortunately needed to ensure that the defendant gets a fair trial where he is presumed innocent until proven otherwise.

Of course, only a very small portion of rape accusations are false, especially if they reach the trial stage. But that doesn't mean that the defendant should not be able to defend himself in the best way possible.

I don't like it, but I understand why it's allowed.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby Marcuse » Mon Dec 18, 2017 2:40 pm

Now, I don't understand why evidence about the victim's past sexual behavior or drug or alcohol use is considered relevant in the first place


It truly depends on the situation, I feel. A recent case where a 22 year old student was on bail for two years over six counts of rape and six of sexual assault against the same woman fell apart when it transpired that the police had sat on records of the phone contact between the two where the supposed victim had repeatedly pestered him for "casual sex" and discussed it with friends in a positive way.

Another case I heard, where a potential perp was accused of sexual violence was in part mitigated by indicating that his reported behaviour was in line with the context of the kind of sexual behaviour the victim engaged in. I don't think that was all there was to it, but if you get off on being called names or being restrained, it's relevant to a case where you then use that as evidence you were sexually assaulted, and keeping it from a jury is probably not a good idea.[1]

That said, cases where victims are dismissed or ignored because they have promiscuous sexual pasts are also known and common. I think it should be on the defense to prove how their admitted evidence is relevant to the case, and if it's not, then it shouldn't be considered as part of deliberations. But I know that everywhere that doesn't seem to happen.

[1]Yes, I am aware that there still can be cases where those things are used inappropriately even among people who might engage in it. I'm not trying to kink shame, but if it's relevant to a case it should at least be considered.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby Marcuse » Wed Dec 20, 2017 9:56 am

http://www.bbc.co.uk/news/uk-42417553

Juuuust gonna leave that there. A second rape trial in the UK has collapsed after police release phone records late that prove the innocence (or at least alter the evidence to the point where they cannot continue with prosecution) of the supposed rapist. They're launching a review of how they handle these cases, as in both cases evidence which could and should have exonerated the accused appears to have been withheld from the defence.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby cmsellers » Wed Dec 20, 2017 6:46 pm

Prosecutors withholding exculpatory evidence isn't a new thing and is common in all crimes. All that said, I don't believe that "the accuser is a drunken slut" or "my 13-year-old accuser sometimes flirted with older men" is exculpatory evidence, so I'm not entirely sure what your point is.

Unless your point is that prosecutors have the power to do far more damage than any defense attorney and regularly do, in which case: yes, I absolutely agree, and I've talked about it before.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby Marcuse » Wed Dec 20, 2017 7:21 pm

cmsellers wrote:Prosecutors withholding exculpatory evidence isn't a new thing and is common in all crimes. All that said, I don't believe that "the accuser is a drunken slut" or "my 13-year-old accuser sometimes flirted with older men" is exculpatory evidence, so I'm not entirely sure what your point is.

Unless your point is that prosecutors have the power to do far more damage than any defense attorney and regularly do, in which case: yes, I absolutely agree, and I've talked about it before.


The exculpatory evidence is, in part, related to the victim's sexual or personal history. They're acting in ways that suggest they may have consented to or explicitly invited interactions which they later describe as non-consensual rape. My point was that if we exclude such examples from our evidence base then we risk situations like the aforementioned where people who are innocent of the crimes of which they have been accused are successfully prosecuted. "The accuser is a drunken slut" is a pretty strawman thing to suggest defence lawyers are saying, and my (admittedly limited) knowledge of the situation suggests that sexual history can be important in some cases where it's relevant to a consideration of whether someone willingly engaged in sexual activity or not.
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Re: Defense Attorneys and Victims of Sex Crimes

Postby satan_n_stuff » Fri Dec 22, 2017 9:25 pm

Marcuse wrote:
cmsellers wrote:Prosecutors withholding exculpatory evidence isn't a new thing and is common in all crimes. All that said, I don't believe that "the accuser is a drunken slut" or "my 13-year-old accuser sometimes flirted with older men" is exculpatory evidence, so I'm not entirely sure what your point is.

Unless your point is that prosecutors have the power to do far more damage than any defense attorney and regularly do, in which case: yes, I absolutely agree, and I've talked about it before.


The exculpatory evidence is, in part, related to the victim's sexual or personal history. They're acting in ways that suggest they may have consented to or explicitly invited interactions which they later describe as non-consensual rape. My point was that if we exclude such examples from our evidence base then we risk situations like the aforementioned where people who are innocent of the crimes of which they have been accused are successfully prosecuted. "The accuser is a drunken slut" is a pretty strawman thing to suggest defence lawyers are saying, and my (admittedly limited) knowledge of the situation suggests that sexual history can be important in some cases where it's relevant to a consideration of whether someone willingly engaged in sexual activity or not.

It's not a strawman actually, they do say and try to prove exactly that because it often works. No sane defense attorney is going to avoid using an effective defense strategy just to spare the feelings of the accuser.
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