Defense Attorneys Want Victim to Act Out Alleged Rape in Court

by Cara on August 24, 2009

in assholes, courts, misogyny, patriarchy, rape and sexual assault, slut-shaming, violence against women and girls

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!]

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{ 10 comments }

1 cornerpiece August 24, 2009 at 3:25 pm

Wow.

I mean, what can you even say to something like that? Apart from “no, no, NO.” I don’t even…Who thought this was a good idea?!

2 SunlessNick August 24, 2009 at 5:23 pm

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.

Or to push her into refusing to do it and then calling for contempt or mistrial. There has to be a point that’s as low as they can go, right? There has to be.

3 sarah m August 24, 2009 at 6:35 pm

One of the–many–things that is disturbing about this is knowing that this kind of shit could only be pulled in a rape case. Imagine asking an (non-sexual) assault survivor to stand in the corner of the courtroom and show the jury EXACTLY where she put her arms to ward off the blows of the attacker. Ya know, in case she wasn’t trying hard enough to defend herself.

In college I wrote a paper about the Oscar Wilde trials–the first trial was a libel case in which Wilde was actually the plaintiff, suing the defendant who accused him of “posing as a sodomite.” In my research I often came across language about how Wilde made a mistake in pressing the case because libel is really the only crime that requires the plaintiff to defend him/herself in order to prove that the defendant is guilty (i.e., i am not gay, therefore he is a liar). Certainly in most criminal cases, it is the defendant who must prove their innocence while the prosecutor tries to argue his/her guilt. Except in rape cases. How sad is it that still a rape accusation is treated as libelous in a court—a woman must convince the jury that she herself “is innocent,” before anyone will consider whether her attacker is guilty.

4 athens resident August 25, 2009 at 11:52 am

The incident you describe took place in Athens, Ohio, not Athens, NY.
http://athensnews.com/news/local-news/28812-attorneys-for-man-accused-of-rape-offer-detector-deal

5 Cara August 25, 2009 at 1:52 pm

Ah yes, of course. I read the sentence “Defense attorneys for a New York physician …” and made a false assumption. Corrected.

6 abyss2hope August 25, 2009 at 5:43 pm

I agree that this request has nothing to do with protecting the defendant’s rights. The goal seems to be 1) to inflict additional trauma by physically making the victim relive her rape. 2) to try to pretend that any stunt like this can show exactly where DNA evidence would and would not end up.

If the defense team wants to pull a stunt like this they should request that during their client’s testimony that he be allowed to show with his own movements how the DNA that he claims to prove consensuality ended up where it did. If acting out will prove his innocence then his movements should be all the proof the jury needs.

7 Jha August 26, 2009 at 6:21 pm

Disgusting! That’s truly lowest of the low bullshit right there. I can’t even believe that they’re even getting away with this request, since it should be clear for all that it would only further traumatize the victim. How people can even fathom bringing this into a space where justice is supposed to be meted out is beyond me =/

8 Rachael September 2, 2009 at 8:56 pm

That’s quite possibly the most horrible thing I’ve read in a while. It’s humiliating, traumatic, and very voyeuristic. I feel for that woman. It must be horrible to have to enact one’s rape for an audience–and in front of one’s friends and family, no less.

9 kevin September 10, 2009 at 5:35 pm

The elephant in the room: is does not even matter whether they ever did or not!
The moment that she says no, it’s over. Who is not to say that he freaking masturbated in the room while she was out? This is appalling that they would want to reenact. She is intelligent enough to explain what happened!

10 C. September 10, 2009 at 11:40 pm

Being a survivor of sexual assault that took place in the very same county that this takes place, as well as resident of said county, I can only say this is sad, because rarely does it ever get to court. It stays with the police report. Call the local hospitals, ask how many rape kits they’ve taken. Ask how many they’ve lost. The local police do not recommend you go to a hospital. They do not even mention it as an option. There are plenty of sexual crimes in this county, but rarely do they make an impression on the community as a whole, much less make it past the community. It’s a crying frickin shame.

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