“Believe the victim”–encouraging a presumption of guilt?

For your reading. R. Michael Cassidy, Character, Credibility and Rape Shield Rules. RESEARCH PAPER 542, Boston College Law School, October 8, 2020.

Cassidy’s introduction notes the attention sexual assaults have received over recent years in reference to Harvey Weinstein, Justice Kavanaugh, and even then VP Biden. He goes on to say that,

“It is a tautology to say “We believe survivors,” because the complainant is only a survivor if her claim of victimization is truthful. “The war cry “believe women” is seen by some as a necessary corrective to a historic injustice, and by others as dangerous ideological orthodoxy if “believe women” becomes “believe all women.”

When taking up credibility, he further writes that,

“At least in the courtroom, we act hastily when we conclude that the decisions of prosecutors and jurors can be based on presumptively believing sexual assault complainants. On the contrary, the presumption of innocence and the government’s burden of proof beyond a reasonable doubt in all criminal cases remind us that jurors have an obligation to weigh the credibility of accusers carefully, and indeed that a defendant must be given leeway to cross-examine alleged victims to establish that they may be mistaken in their memory of historical events, that they might have a motive to fabricate claims, or that their perception may have been clouded by alcohol or narcotics. All members of society must be conditioned to listen with care and compassion when complainants bring forth accusations of sexual assault, so that we do not apply subconscious stereotypes or biases to reflexively discredit them. But as the “Me Too” movement grows, it is also essential that bedrock protections for the accused are not eroded in a way that predetermines a defendant’s guilt.”

The writer then goes on to address the issue of rape-shield doctrines being “stretched beyond their original purpose.” Part of his focus is on something military defense counsel see often at courts-martial–actual or suspected prior false allegations. He notes the confusing state of the law on this particular issue.

“The thesis of this article is that interpreting rape shield rules to require the exclusion of prior false allegations of rape jeopardizes the ascertainment of truth. Yet the confusing state of the law at the intersection of prior false allegation evidence and rape shield rules leaves the admissibility of this particular type of evidence highly contested and uncertain.”

Cassidy proposes an amendment to Rule 608(b) for dealing with allegations of prior false accusations. The ‘proposed amendment to state and federal rape shield rules would both narrow and broaden the traditional mechanism for impeachment by character evidence under Rule 608(b) for sexual assault complainants.” The rule would require that proposed evidence be, effectively, considered Rule 412 evidence, and as military defense lawyers now do, file a motion for a closed hearing. He argues, as your military defense lawyers often do, that the government should not be able to weaponize rape shield rules to prohibit inquiry into prior false accusations that are primarily indicative of dishonesty” because that is a disingenuous application of the rule.”

The article, therefore, presents some useful ideas and arguments for admission of evidence showing a persons potential to lie.