Special Victims, Special Rules

Not that anyone asked for more discussion of “special” victims, but when you hear the opening theme to Law & Order, SVU, playing in the background, there just isn’t much to be done other than to hum along.  At Concurring Opinions, Aníbal Rosario Lebrón presents an argument to fundamentally change the rules of evidence that is, well, breathtaking.

Today, I would like to touch upon what I believe to be a disturbing void within Critical Legal Theory. Although Crit-scholars have unmasked many examples of apparently neutral laws with discriminatory effects, they have overlooked to some extent the weight of apparently neutral evidentiary rules upon certain minority and identitarian groups.  The article I’m currently working on intends to explore this void by examining how evidence rules are not neutral in practice, but rather inexorably respond to our patriarchal practices.

There is a strong tug to quote the entire post, but I resist. Yet, with an opening like this, with all the makings of brutally painful scholarly head-banging, it would behoove you to read the post in its entirety. But first remove any sharp objects from your reach. Just sayin’.

After offering a shockingly thorough, textbook example of beg-the-question statistics for his claims, with the caveat that “reliable figures are difficult to compile” (but which doesn’t slow him down for a moment from asserting figures anyway) he concludes that a “credibility bias” exists in evidentiary rules to the detriment of women.

And who are the evil-doers who exploit this gap in the law to re-victimize women?

This credibility bias is extremely powerful, especially when rules of evidence allow defense attorneys to use it in their favor. Fully aware of this fact, defense attorneys have reclaimed the myth of the scorned woman to argue that female victims are misusing the judicial system “to get back at” their partners or ex-lovers and that defendants should not be convicted because it is all a lie.

The strategy takes advantage of the rules of evidence that allow attorneys to impeach the credibility of a witness with any specific act of untruthfulness by bringing into evidence inconsequential acts of mendacity. By doing so, defense attorneys access the sexist narrative of the scorned woman that resonates with the implicit credibility bias of adjudicators and secure a verdict of not guilty.

This strategy hinders convictions and deters victims from coming forward. Domestic violence victims are well aware of this practice and choose not to report the crimes out of the fear of being demonized as liars and re-victimized during the trial. (Note: broken into paragraphs to enhance readability.)

It’s not hard to imagine the outrage caused by this “strategy” of testing the credibility of accusations. How dare criminal defense lawyers question the “woman scorned”?  It’s not entirely clear whether Lebrón takes the position that women are incapable of fabricating an accusation, or that the “estimates” upon which he relies, and conclusions he draws from them, justify disregarding basic notions of due process.  After all, we all know how defendants crush the prosecution at trial with such regularity using these blackhat strategies, right?

But the good news is that Lebrón doesn’t contend that the defendant simply be sentenced upon the accusation of a woman.  No, he offers a process to parse the credibility bias before sentence is imposed.

A good strategy to prevent this from continuing to happen is to reform our evidentiary rules. We must shield gender-based violence victims from vicious attacks based in patriarchal notions about women’s character that only skew the truth and prevent justice from being served. Such a proposal should also make evident that this powerful narrative of women not being credible is so pervasive that none of us is exempt from acting upon its premises. Specifically, I advocate for the adoption of rules that would prevent attorneys from impeaching victims of gender-based violence (such as a battered women, rape and sexual harassment victims) with previous acts of untruthfulness not related to the charges.

Before you say so, don’t question Lebrón’s characterization of women as “gender-based violence victims” before a jury determines that a crime has been committed. It’s an article of faith (as argued that there is no epidemic of false claims, which means that all claims are to be facially accepted as true).  Granted, it’s hard to “re-victimize” someone who isn’t yet a victim according to the way the law would define it, but then, faith isn’t subject to logic and reason. It just is, and if you don’t accept it, you’re wrong. Or so I’m told.

And how would Lebrón protect victims from these “vicious attacks based in patriarchal notions”?

My proposal envisions a hearing presided by a second judge in which defense attorneys will proffer to the court the evidence they possess and intend to use in the trial regarding the untruthful character of the victim. In addition, the defense will be required to present evidence about the victim’s history of misusing the judicial system or any proof it might possess with regard to the victim maliciously filing the suit or pressing charges against the defendant. During this special hearing, the prosecution or the plaintiff would have the opportunity to rebut the allegations from the defense and present evidence that supports the veracity of the charges and the lack of evidence about the victim abusing the judicial system.

Essentially, it’s a reverse 404(b) inquiry, probative versus prejudice, where the burden would fall on the defendant, in advance of any testimony or case being made of guilt, to show that evidence of a witness’ being a liar is worthy of use in cross-examination.  Putting the burden shifting aside, how a judge could make any such determination in the absence of a basis isn’t mentioned. But then, it’s really not about evidence, but protecting women from “vicious attacks” by using the truth against them.

Granted, this post reflects such an absurd proposal that it stands no chance of being taken seriously, other than by those whose religion is to subvert law to gender politics.  But as more outlandish ideas are promoted as legal scholarship, there is a risk that they will push the envelope a little bit at a time, undermining foundational concepts of evidence and due process in the quest to assure that no woman is “re-victimized” and no man ever escapes conviction.

It’s not that I care to find myself arguing against feminist visions of the recreation of the legal system to enhance the efficacy of their agenda, but these things have come up lately, and I similarly find myself constrained to defend both what criminal defense lawyers do, and challenge these outlier efforts to undermine the few protections the system offers defendants to protect these “special victims.”  So I’ll be cast in the role of misogynist again? What else is new.  Somebody has to take the hit.

24 comments on “Special Victims, Special Rules

  1. John Burgess

    Bless you, Scott, for saving us from having to read that pap.

    The writer impeaches himself by his very vocabulary. Start reading and you know you’re going to be drawn down a rabbit hole into not a Wonderland, but a nightmare.

      1. Fubar

        The klaxon warning of the rabbit hole is three words in the first quoted sentence: “critical legal theory”. Anywhere the phrase “critical [anything] theory” appears, the ground ahead will be quicksand at best, and the creatures dwelling there not of this Earth.

          1. LTMG

            Jeez, everybody belongs to at least one indentitarian group. Under Lebron’s proposal, nearly everybody involved in a court case, save officers of the court, could claim kid gloves consideration. The suggestion is simply not workable. If attempted, imagine the additional cost and time for a trial.

            1. SHG Post author

              Most groups realize that they really aren’t the center of the universe, and while they do what they can to serve their interests, they do so with a realization that the rest of the world isn’t likely to feel that they’re as special as they think they are. Not so with this group. They truly believe that they, and they alone, are special.

  2. jakee308

    This sounds like what they do in many Universities and Colleges these days for the same accusations.

    Women must be protected above all costs to other’s rights, women will never lie about an assault and the process of investigation may be traumatic and upsetting to a woman so we won’t do that.
    In other words:
    Give them a fair trial (sorta) and then expel them.

    All of their concerns should be addressed, just not in the way they want to have them addressed.

    But then that’s just me being patriarchically heteronormative (and concerned about the rights of those accused to confront their accuser and defend themselves against their charge(s).

    1. SHG Post author

      Had this been a post about what they do in many universities and colleges, say like this one less than a week ago, your comment might have had some minimal relevance. Here, it doesn’t.

  3. Ted H.

    This proposal seems redundant, because the rules of evidence allow the prosecution to bolster their witness’s credibility once it has been attacked. My guess is an irrational(?) fear that once the jury has heard anything impeaching the honesty of a female rape accuser, no amount of bolstering will undo the damage. Perhaps attorneys with trial experience can elaborate.

    FWIW, to me, the level reasoning is akin to an knee-jerk reaction in the form of an inchoate abstract of a paper worthy of publication in “insert law school” Journal of Law & Feminism. But I guess you already figured that.

    1. SHG Post author

      It has no chance of happening, but my concern is that the weight of feminist legal scholarship of this sort pushes the discussion so that the more reasonable concepts begin to seem almost viable, and people start to take them seriously.

      1. Ted H.

        “that the weight of feminist legal scholarship of this sort”

        Well, I suppose this sort of push adds to the Hegelian dialectic, but it’s up to the rest of us to push back to find the proper middle. My question to you, as as a criminal attorney with trial experience, is whether there is an insurmountable burden to overcome when a female accuser’s credibility has been impeached.

          1. Ted H.

            When a defense attorney proffers evidence of a female rape accuser’s propensity for dishonesty, might any amount of prosecutorial bolstering overcome that damage to a jury?

            1. SHG Post author

              Of course, just as challenging credibility during cross of any prosecution witness. If anything, the witness tends to be more sympathetic to the jury, and therefore more credible, regardless of prior dishonesty.

              There is a myth perpetrated by feminists that it’s singularly difficult to convict a defendant of rape because of the “he said/she said” nature of the testimony. There is no basis for this, and by repeating the lie often enough, they hope to create a mindset that rape accusers are particularly vulnerable to being discredited, and therefore require special treatment. It’s just not so, and they are in no different position on cross than any other witness.

              1. Ted H.

                “There is no basis for this, and by repeating the lie often enough, they hope to create a mindset that rape accusers are particularly vulnerable to being discredited, and therefore require special treatment.”

                That is the unutterable response to the argument in the vein of “what we cannot speak about we must pass over in silence.” Both you, me, and Lebron cannot know the absolute truth of this matter. But I agree that Lebron’s proposal undermines the core nature of our adversarial system: that one is innocent until proven guilty. By using the nominative form victim, Lebron ascribes guilt where none has yet been proven.

                1. SHG Post author

                  Yes, the “unutterable response.” One of the unfortunate lessons of all this for me is that it’s impossible to engage in any sort of intelligent discussion with feminists. They demand that the discussion be by their rules, the language limited to what they deem acceptable, acceptance of bogus, self-serving, baseless statistics, and ultimately the indisputable anecdotal proof of their experience as women in our “rape culture.”

                  When the rules of engagement don’t comport with their demands, they resort to all manner of logical fallacy, most notably ad hominem attack claiming any language that isn’t approved in the feminist lexicon is an attack on women, reducing all discussion to abject worthlessness and laughable hypocrisy.

                  On the bright side, this is why most men and women find their views unacceptable, bordering on ridiculous. But they just circle the wagons, whining (I’m not allowed to use the word “whining” because it’s sexist, even though they are entitled use it in attacking men) amongst themselves about how despicable men are. And so it goes.

                2. Ted H.

                  It’s too bad the other side seems to close off meaningful discourse. It’s probable that they do not want to risk any shift from their position. Eh, polemics. Thanks for the chat.

                3. SHG Post author

                  It’s a shame that they’ve created a situation where those whose concern for constitutional rights are their enemy. But I’m left with no option but to refuse to play their game, continue to defend constitutional rights for everyone in the face of feminist demands for special rights only for women and suffer their attacks. Polemics indeed. Thanks to you too.

    1. SHG Post author

      That’s the irony of feminism. Of course, feminists, regardless of gender, don’t see it that way because they’re right and everyone else is a misogynist.

  4. Wade

    I think you may be a little too sanguine about the likelihood of this sort of thing getting anywhere. From most of the appellate reading I’ve done, I can’t imagine any court deciding that these proposed rules are any less constitutional than “rape shield”, recent complaint hearsay exceptions, or prior abuse evidence rules. I noticed that the proffer requirement that the article proposes is substantially similar to what is required by my state’s “rape shield” statute for admission of evidence that the complainant and defendant had had consensual sex on prior occasions. The unwillingness of the appellate courts to require adherence to the Constitution leaves these issues to the legislatures, and we all know how they will react when a crowd of prosecutors, academics, and crime victims descend upon them.

    1. Rick Horowitz

      I was going to say this same thing.

      In a trial on rape allegations I did awhile back, the witness was a prostitute who alleged rape. Our argument was that it was a prostitution deal where the “victim” found out after making the agreement that our client had more money than she thought he had, and demanded more.

      We had one hell of a time even mentioning the words “prostitution,” or “prostitute,” because it was said we were trying to prejudice the jury against the “victim.” Despite the complaining witness’s false attempts to make it appear she’d never really engaged in prostitution before, we were unable to impeach her statements with the facts because of this potential “prejudicial” effect.

      I hope things never get to the point suggested by Lebrón, but I think we’re not really all that far from them already. When the “victim of rape” is a child, the rules seem even more restrictive of putting on a defense.

  5. noah

    Men are victims (or as I prefer to say, complaining witnesses) of domestic violence too, as are members of same-sex couples, etc. Under the Lebron worldview, is it still gender-based violence if the wrong gender is complaining? As someone who regularly tries these cases, I see too often that judges can find the female complaining witness credible even after extensive impeachment. I shudder to contemplate a weakening of defendant’s right to confront their accusers in this area.

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