There’s been a very effective ad accusing Nathan Deal, Republican candidate for governor, of wanting to put rape victims, instead of accused rapists, on trial, permitting rape victims to be questioned on their past sexual behavior and manner of dress. Despite this ad, Deal is expected to occupy the Governor’s Mansion next January. I can only wonder what my fellow Georgians are thinking.
The facts are simple. Yes, when he was pro tempore president of the Staste Senate, Deal did back a piece of legislation that changed the evidentiary laws for the crime of rape and other sexual offenses. It was strongly opposed by women’s rights’ advocates and prosecutors because it would allow the victim’s past to become part of the case, and thus heavily favoring the defense.
Did the new law do what its opponents claim? I did a search and finally found an article which explicitly summarized the law he pushed.
Both the bill proposed by Deal and existing Georgia law barred the victim's sexual past from being admissible in court in most cases. Both included an exception if the victim's sexual history with the accused showed the incident may have been consensual.
But the law proposed by Deal permitted four new exceptions to the rule.
The biggest was this: If prosecutors presented physical evidence including semen, injury, pregnancy, or disease to prove the victim was raped, then a judge could allow a defense attorney to enter evidence about a victim's sexual past.
And unlike the existing rape shield, the proposed version did not explicitly bar the accuser's "mode of dress" from entering into evidence.
In Deal's proposed law, if defense attorneys wanted to include a victim's sexual past, they would make a motion on the issue when the jury was not present. The judge would then hear arguments from both sides in his chambers, and might hear testimony from witnesses.
If the judge found the value of the evidence outweighs the "danger of unfair prejudice," it would be admissible, the proposed law said. The judge would then lay ground rules for what would be allowed in the courtroom.
http://politifact.com/...
The first exception is the key one. Prosecutors almost always present physical evidence like DNA tests based on semen or pubic hair combings as part of the case, along with medical testimony indicating that injuries to the vagina indicated a rape had occurred. The moment such evidence is introduced, the defense is immediately permitted to file a motion with the judge requesting the right to bring the victim’s past in as part of the defense. And her manner of dress is no longer specifically excluded. In other words, if the prosecutor does his job and introduces standard circumstantial evidence, the defense can go hog wild triing to prove the victim was a slut who had buyer’s remorse.
Let me try to put that into real life terms.
Imagine you’re an attractive 21-year-old woman. It’s Halloween. You go to a local nar party with friends. You’re dressed in a typical Halloween costume like this or this or this or this. And if you think these costumes are too over-the-top—good luck finding one that isn’t short, strapless or low-cut, unless you want to go as the Wicked Witch of the West or wear a potato sack (I make my costumes for that reason; I am 60 and a little old to wear such outfits). Not that the costumes are all that revealing—most women wear less in the summer down here in Georgia. Go to the Mall of Georgia on Saturday in July, and you’ll see a lot more skin, often on very young teenagers. Go to club, and it's the same thing. Skirts are short and tops and dresses are skimpy. It's called FASHION, and it was that way back in '91 ( well, the Mall of GA wasn't built yet, but you get the point)
So, there you are, dressed like most of the other women your age when some strange guy starts bothering you. First he sends over a drink, and you accept it to b \e polite. Then he comes over and tries to talk with you. You explain you’re with friends and want to hang with them. When you get up to dance with your female pals, he tries to cut in. You tell him again you’re with friends. He gets a little pushy, so you and your friends sit down. He keeps this up for an hour or two until you finally tell him you’re in a relationship and you’re not interested.
After a bit, you get fed up, and he’s creeping you out, so you tell your friends you’re gonna head home and watch a horror movie on TV. You head out to the parking lot alone (that’s your big mistake). He follows you. And there, in a dark corner of the parking lot, he throws you into his car, drives to back street, and rapes you. You don’t fight because you’re scared—he’s a lot bigger than you are and he’s very, very angry. You’re terrified he’ll beat you up or kill you. When he’s done, he throws you out of the car and tells you that’s what happens to little cocktease bitches. He leaves you there, your costume torn, your shoes still in his car.
Finally you make it back to the bar, the closest public place with a phone, clutching the tatters of your costume together to keep your bare breasts from showing. They call 9-1- for you,. Te police arrive and take your statement and drive you to a hospital where a rape exam is done. It is painful and mortifying, despite the best efforts of the medical personnel to make it as easy as possible. They find public hairs from the rapist when they come your own, and semen in your vagina. There are bruises from where he slapped you and held your arms down. They photograph them. You’re able to give the police a good description, including a sketch by the police artist. The bartenders and your friends back you up on this. The guy’s a regular at the bar, and he paid for his drinks with a credit car, so he’s easy to find. He is arrested two days later.
At the trial, the prosecutor enters into evidence the pubic hair combings which match the defendants, and the DNA test on semen, which matches the defendant’s. He also has medical testimony testify to the damage to the vaginal area and the bruising on your arms and face, including the photographs taken at the hospital.
He asks your friends to tell what happened that night, and they recount how this man wouldn’t take no for an answer. It quickly becomes apparent what the defense strategy is. The defense counters by asking them whether he was threatening or made any overtly sexual moves. They have to admit that while he was persistent, he didn’t touch you or threaten you, making him sound like a guy who just didn’t get it rather than a potential rapist. The bartender, who confirms your story about the man hitting on you, is force to admit that while the defendant can be a little pushy, he’s never seen him actually hurt a woman—and yes, that night, he was pretty drunk by the time you left.
And then the prosecutor puts you on the stand to testify. You tell your story as calmly as possible, not wanting to cry, though you have trouble speaking at times. When asked to identify the man who attacked you, you state that it’s the defendant.
The defense lawyer has already gotten permission from the judge to enter your sexual past into evidence. And the law permits him to ask questions about your behavior and manner of dress on the night in question. He asks you how you were dressed. You tell him. He produces an untorn version of the costume, which is short and off the shoulders, a pirate dress; he has one of his legal secretaries enter wearing such a dress, so that the full "indecency" of the costume is made very clear to the jury. He then asks how many drinks you had that night. You tell him honestly that you had two glasses of wine, including the one the defendant sent over. His implication is clear: you were dressed like a slut and you were drunk.
He then asks you when you lost your virginity. At 17, with the guy you’d been dating for two years, you answer honestly. He asks you how many sexual partners you’ve had—four, you answer equally honestly. And how many guys did you lead on? In other words, you got what you deserved. The prosecutor attempts to destroy the picture he’s painted but finally rests.
The defense’s first witness is a man you dated two years before. He enjoyed rougher sex, which is why you stopped dating him, after he pushed you too far. The attorney asks him about your relationship. He says you slept with him a number of times but he dumped you because you were a cocktease. You liked sex on the rough side, but didn’t want to admit it, but he could tell you liked being held down. Two other guys you dated a couple of times—guys you slept with once—reiterate his story about you promising more than you delivered, and that "everyone knows she’s slutty". Not only are you promiscuous (4 guys since you were 17? hardly out of line) but you like your sex a little rough, neatly explaining those inconvenient bruises. All of what the defense attorney just did is probably perfectly legal.
You sit there, completely humiliated. You wish you’d never gone to the bar. Never spoken to that creepy man. Never reported it to the police. Never pressed charges. You did it because he hurt you and because you wondered if he’d done it to other women, and you wanted to make sure he never does it again. Instead, he looks like an amiable drunk and you sound like a slutty bitch who likes her sex kinky.
I am not a lawyer, but everything I’ve portrayed could have happened under Nathan Deal’s law. Your sexual past is an open book if the judge agrees, if the prosecution admits the physical evidence necessary to prove that a rape occurred.
And this is why rape shield laws are important. On the bad old days, in the seventies when I was rape crisis center counselor, the victim was often the one put on trial. Sometimes her name was published in the local newspaper. The trial was often covered in salacious detail. For this reason the vast majority of rapes went unreported. No woman wanted the prying questions, the nasty publicity. It took enormous strength to press charge. It took guts even to report it to the police, who frequently didn’t believe you unless you were seriously injured.; they shared the prejudices of the average man, after all. Even if they presented the evidence to the prosecutor, he might not take it to court, because rape convictions were—and still are—damned hard to get, unless there are witnesses (rapists just don’t like to rape in front of witnesses, for some reason). But to make matters worse, Nathan Deal wasn’t doing this in 1978. He tried to undermine the rape shield laws women and victims had fought for in 1991.
Nathan Deal is going to be my governor in a few months—a man who wanted to make it easier for rapists. Nice going there, Big Guy.