Dahlia Lithwick at the NY Times
I have what some consider strange interests, not the least of which is my fascination with the esoteric legalese of Supreme Court decisions. I have no legal training outside what any American kid with a love for court shows on tv receives, so when I found Dahlia Lithwick's Jurisprudence column over at Slate, I was in heaven.
And now, she's subbing in for Friedman at the NY Times. Her first piece is on rape shield laws in high profile cases that involve acquaintance rather than what she calls "stranger in the bushes" rape, and she shows the problem with well-intentioned but too broadly drawn laws.
Rape shield laws are well-intentioned--there are few things more despicable to me than the argument that a rape victim deserved what he or she got because they happen to be sexually promiscuous. It's the most fundamental human right that a person has absolute control over his or her body--no rape victim ever asks to be raped.
But as Lithwick points out, when you get into acquaintance rape cases,
centered as they are on nuanced questions about the accuser's consent and the defendant's understanding of that consent - is that the legal inquiry does come down to whether she asked for it. Almost literally. And all the evidence of her sexual behavior - in this case the physical evidence implicating the accuser's other encounters that week - thus becomes highly relevant.
Honestly, I don't blame anyone accused of rape from pulling out all the stops to prove their innocence--the mere accusation is enough to destroy one's reputation, and a false accusation is as morally reprehensible in my opinion as the actual rape is concerned. And a conviction now means not only jail time, but permanent ostracization from society, thanks to requirements that force sex offenders to identify themselves to their neighbors. It's nearly impossible to repair your reputation after a conviction.
So where do we draw the line? Lithwick doesn't really address that question, because she deals more with the problem of the media in high-profile cases, specifically the Kobe Bryant case (a case I have assiduously avoided reading anything about, just as I have avoided the Peterson case, not an easy thing to do in California). She notes that the media have essentially turned into Kobe's secondary defense team, splashing details of the accuser's private life all over the national stage. They've made it largely impossible for there to be a fair trial--for either Kobe or his accuser.
But for me, the problem really lies in the attempt to legislate a catch-all for the situation. Clearly there are cases where the victim's sexual past is utterly irrelevant, and there are cases where it might be, and no legislation is going to make a hard and fast rule that will cover every possible iteration. That's why we have judges--they're put in those positions because they're supposed to make those tough calls. There's no easy fix here.