I’ve written about more disgusting instances of defense attorneys pulling all kinds of bizarre, misogynistic and unethical stunts during rape trials than I could even begin to count, let alone want to. But just when I think it’d be close to impossible for an attorney to sink even lower, such an instance arrives in my inbox.
In Athens, OH, Charles H. Nguyen is charged with breaking into the home of a woman who he met on the internet, restraining her, raping her, and threatening to kill her nephew if she didn’t comply. Nguyen’s defense attorneys have started the bullshit off by trying to get the prosecution to agree to a lie detector test, and have charges dropped if Nguyen passes — knowing full well, of course, that polygraph tests are unreliable and therefore inadmissible court evidence. But it was the next request that took things from obnoxious to grotesque and cruel:
Defense attorneys Farmer and Christopher W. Chan have also made a request – which appeared to raise the judge’s eyebrows a bit – to be allowed to set up, in front of a jury, the bed in which the rape allegedly took place, and then to require the alleged victim to physically demonstrate how her body was situated when she claims the assault occurred.
“So, you want her to assume different positions on the bed in front of the jury?” Ward asked. He suggested there’s some question as to whether he would allow this.
The supposed “reasoning” for this is murky at best. The defense attorneys claim that despite the victim’s testimony, she had consensual sex with the defendant in the days before the alleged rape, and the positioning of various stains on the bed will show as much:
Chan, who is from New York, said he believes evidence from the bed and floor around it – particularly semen stains – will support Nguyen’s claim that he and the alleged victim had consensual sex in the bed multiple times in the days before the alleged rape took place.
The woman has alleged that Nguyen, whom she met over the Internet, came to visit her in May. Afterwards, she claims, she told him she was not interested in having a relationship with him and he left town, then came back and raped her in her home.
This was the only time the two had sex, according to her statements. She has also reportedly alleged that Nguyen restrained her, and threatened to kill her young nephew if she did not submit.
If the defense can show that based on the evidence, multiple sexual acts in the bed are more likely than just one, Chan suggested, this could impeach the woman’s credibility.
“We can show conclusively… that the positioning (of the stains) is such that it would support our theory that there was consensual sex the whole week,” Chan argued. But to make that case, he said, the jury needs to see graphically what the woman claims happened.
Whether they are claiming that the stains in question came from that allegedly consensual sex rather than rape, or whether they are simply trying to ruin the victim’s credibility by introducing the idea that the two had engaged in consensual sex, and argue that not all of the stains could have been caused by the alleged rape, is unclear. At the beginning of the quoted section above, they seem to be suggesting the former; by the end, it looks a hell of a lot like the latter. It’s my guess that obtuse is what they’re going for — because if their intent is actually the latter, it seems to me that it violates the rape shield law. Bringing a victim’s previous sexual history into a case as a means of discrediting her or suggesting that the alleged rape couldn’t “really” be rape is not allowed — but if the defense is unclear and not explicit about their intent when in front of a jury, which history has proven they really needn’t be, they just might get away with it.
This thesis is furthered by the information that the defense is seeking access to the victim’s criminal record and immigration history — of no use whatsoever if they weren’t attempting a credibility argument that is based entirely on prejudicial notions about who can be raped, who can be believed when she alleges a rape, and whose rape is worth taking seriously.
Even giving the defense the benefit of the doubt, assuming that they are intending to simply argue that all of the stains came from consensual sex, and thus there is no physical evidence of a rape at all — and again, I’m extremely skeptical on this point — it doesn’t explain why they are requesting not only the victim’s own bed to be physically brought into the courtroom, but also for her to pantomime previous, allegedly non-consensual sexual contact in front of an audience. Indeed, I’m pretty sure that such arguments have been made in court many times, and successfully, without going that extra victim-shaming mile.
The only purpose that this request could serve is witness intimidation. They are trying to frighten, humiliate, and traumatize her not only in front of many strangers, but probably also in front of supportive friends and family in attendance at court. They’re also likely hoping that if she’s actually forced to do this, a jury will see her in sexual positions in that courtroom and rather than feel extreme sympathy for her, as a decent person would, simply have an either conscious or unconscious reaction of: “slut!” And we know perfectly well how misogyny ensures that any woman labeled a “slut” is viewed in the realm of a rape trial, even with all the evidence in the world that she is telling the truth.
The fact that the judge did not immediately dismiss this request and left open “some question” as to whether or not he’d allow it is absurd and abhorrent. If it does actually end up going forward, it will be an absolute travesty of our judicial system and a great big win for rape apologists and unethical defense attorneys everywhere. And as the woman in this case will bear the direct trauma, she won’t be the only woman to remember it — it will also inevitably weigh in the minds of future victims when they decide whether or not to press charges.
Thanks to Lindsey for the link.
[UPDATE: Links now fixed!]