Friday, October 25, 1996
LAW:
Myths about evidence laws, juror opinions can have serious
consequences on women. It can affect their behavior, even their
decision to report a rape.By Paul Bergman
The story on "The Aftermath" of rape (Oct. 23) perpetrates myths
even as it seeks to debunk them. One myth is that evidence rules
discourage rape reporting because they allow defendants to expose
the "whole sexual histories" of victims in the courtroom. In fact,
Evidence Code Sec. 1103 (in effect for over 20 years) provides that
defendants cannot offer evidence of a victim’s sexual past to prove
consent of intercourse. Moreover, another evidence rule which
became effective this year allows prosecutors to offer the reverse
 evidence of defendants’ previous sexual assaults to prove
they committed a rape.
A second myth is that jurors who vote to acquit defendants of
rape charges "believe that victims deserve to be sexually
assaulted" when women testify that they went home with a man, got
drunk or high and agreed to heavy petting  but not to sexual
intercourse. Maybe many of these jurors simply weren’t convinced
that intercourse was non-consensual. Unless we’re prepared to
simply do away with trials for defendants charged with acquaintance
rape on the grounds that alleged rape victims never misperceive,
misrecollect or misstate what happened, we have to consider that
jurors sometimes get it right when they conclude that the
prosecution has failed to prove beyond a reasonable doubt that a
rape occurred.
Rape is undoubtedly a horrible and underreported crime. Trotting
out these myths is a disservice to women who are considering the
impact of the legal process on their behavior.