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April 28, 2006

Duke Lacrosse Rape Accuser Made Rape Accusations 10 Years Ago, But Judge May Bar Evidence

Um, yeah. So, like, rape-shield laws are supposed to protect women, to the extent constitutionally permissible, from explorations into their sexual history.

Is a criminal complaint, apparently found to be without foundation, now considered part of someone's "sexual history"?

Just because she accused someone else of rape before doesn't mean she's lying now... or even lying then. Just because charges aren't brought doesn't mean a crime wasn't committed.

But I have difficulty comprehending how this is not very relevant evidence as to her credibility.

An interesting thing about rape-shield laws: They always have a caveat built into them that sexual history can be introduced if required by the Constitution's general thrust that defendants be afforded a fair trial, and be allowed to introduce any evidence that tends to exonerate them.

This issue gets fudged a lot, but I can't see how you can constitutionally convict these men without allowing the jury to consider the implications of this past charge.

Otherwise, we might as well just say that anyone accused of rape has no right whatsoever to put on any sort of defense, or offer an alibi, because, hey, doing so contradicts the word of the female accuser and hence subjects her to psychic pain (or, as Susan Estrich would have it, a "second rape," this one in the courtroom).


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posted by Ace at 11:45 AM

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