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.