[Puffer Fish]

The Canadian Supreme Court has set a precedent that could have disturbing implications.

Imagine a man is being accused of rape by a woman.
There are a lot of people who want to automatically believe the woman's accusations without any additional evidence, and would send the man to prison.
If a man were facing accusations like that, what is the only possible evidence he could show to be able to prove he was innocent?

Did you know a court does not have to allow him to show that evidence? The judge might not allow the jury to be able to see or know about this evidence.

This sounds insane, but apparently there is no absolute requirement that a judge has to let the defense be able to show the jury this evidence in a trial.

The man being accused could have a video recording of the sex act taking place, which he believes would help his defense if shown. But a judge might not allow it to be shown.

And now, in Canada, the judges will no longer allow that evidence to be used to surprise accusers on the witness stand, to try to catch them in a lie.

It's already very difficult to be able to prove a man is innocent or catch a woman making false accusations.
By forcing the defense to have to lay down all their cards on the table before the start of the trial, it will just make it even more difficult.


notonrecordpodcast (@notonrecordpodcast) | TikTok
video here
The crazy new rules for submitting evidence in sex assault cases

"Just to be clear, if you have a video of the sex act you're being accused of, in terms of a sexual assault, if you had a video of that, you might not be allowed to use it. Because now they've changed it."
"It was immune, if it was the actual subject matter of the charge."
"And what used to be immune from this type of scrutiny was evidence specifically related to the complaint. So that particular act that's alleged. So that's what we call 'the subject matter' of the charge. For example, if there was a video for some reason of that particular act, and the defense thought that that video showed that there was consent..."
"...or simply it didn't occur in the way it was described..."
"...you didn't have to vet that because it's subject matter of the offense. But the Supreme Court says we do."

EP#45 | The Trouble With Historic Allegations, "Not on Record" series
video here
EP#30 | New Rules of Evidence
video here
Criminal Defence Lawyer Joseph Neuberger, and YouTube personality, legal researcher and host of the UnTrue Crime podcast Diana Davison, discuss the aftermath of their trials and the emerging and alarming changes to our legal system.

"The supreme court expanded in this case what a record is... So let's say the allegation is somebody has been dating for about two months they went out on a date they had intimate relations that night the complainant thought she was sexually assaulted, but they have communications afterward and the communications say "I had a great night, dinner was wonderful, I loved our time together, um, you know, you were such you were so hot in bed, thank you so much you were wonderful, I really love being with you...", and there's this exchange, but then afterward comes this complaint saying that I was sexually assaulted. and that is... the communications are about that particular date, that particular night, that particular sexual encounter for which the complainant, which is called the subject matter the charge, says was a sexual assault.
It used to be up until this decision that when you could pinpoint it directly to the allegation, that is not captured by this section of the criminal code."
"What's supposed to be the strongest section, most protective section, 276, that covers sexual history and so on... So that's the thing that was supposed to be the most strictly governed evidence and it was immune, it was not captured by -- and it still isn't captured by -- 276."
"Right but the supreme court of Canada has now said it's a 'record'. So if you have messages about the complaint, like about the sex that you had saying it was wonderful, I consented, it was great, you can no longer hold that back and cross-examine on it, that has to be disclosed. And you've got to think about that for a second, that's an extraordinary move by the supreme court of Canada."


There are multiple legal reasons a judge could use as a justification to not allow evidence to be shown. The judge could decide the evidence would "prejudice the jury", that whatever the evidence shows is "irrelevant", or mostly irrelevant (even if it is not completely irrelevant), or certain legal jurisdictions may have special laws that can prevent certain evidence from being shown, such as "Rape Shield" laws, which are pretty common.

[Puffer Fish]

Unfairness of "Rape Shield" laws, not allowing evidence of prior false accusations

In a typical rape trial, the alleged victim or prosecutor can present evidence trying to show that the accused committed previous sexual assaults on other women, even though that has nothing directly to do with the specific case or criminal charges the man is now facing, and even though the man was never convicted of those other alleged instances of assault in the past.

But the defense is often NOT allowed to present evidence trying to show that the woman previously accused other men of sexual assault in the past, or to try to show that the woman previously lied about sexual assault complaints, if she has not been previously convicted of the crime.

So there are clearly some double standards at play.

"In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault."
(U.S. Federal Rules of Evidence, Relevance and its Limits, Rule 413. Similar Crimes in Sexual-Assault Cases)

"In addition to the requirement of falsity, several states require or prefer either a pattern of prior false accusations or similarities between prior and current charges--or both--before prior false accusation evidence will be admissible. These states have recognized the importance of the falsity determination and have gone a step further in implementing a more nuanced relevancy determination. Colorado has interpreted its rape shield statute as requiring the defense to show that "the alleged victim made multiple prior or subsequent reports of sexual assault that were in fact false."
All 50 states have adopted rape shields, victim-protective statutes passed in response to advocacy by the women’s movement of the 1970s. Rape shield statutes vary dramatically from state to state, but their primary common feature is a presumption against the admissibility of evidence of the victim's prior sexual conduct. Only eight states have rape shield statutes that specifically reference prior false accusation evidence.
Arkansas's rape shield statute employs a different approach. Rather than enumerate a categorical exception for prior false accusation evidence, Arkansas’s rape shield facially excludes such evidence if the victim denies its falsity. [2 Ark. Code Ann. § 16-42-101(b) (2012) ("evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true . . . is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose."] (Apparently courts have interpreted prior false accusations of sexual assault as being under the category of past sexual conduct, and thus not allowable as evidence.) ... Amanda B. Hurst criticizes this approach as being under-protective of defendants' rights."
The article argues that prior false accusation evidence should not be able to be used against the victim.
"... In order to succeed on a motion to admit prior false accusation evidence, a defendant must show relevance, falsity, and that the [evidence’s] ‘probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. ... Thus, the fear that "the rape-shield statute contravenes the Sixth Amendment by restricting the defendant’s right to fully confront the witnesses against him" is arguably overblown. Indeed, the Arkansas rape shield's facial exclusion is an improvement on the enumerated exception approach because its presumption of inadmissibility advances the underlying policies, while its rape shield hearing provision provides a layer of protection for defendants. Like the Arkansas statute, Colorado's rape shield statute excludes prior false accusation evidence unless the defendant establishes the relevancy and materiality of the evidence during a rape shield hearing. Colorado's approach provides the added benefits of a high standard for falsity and a requirement that the victim have a "history of false reporting" before the evidence will be admissible. (In other words only one prior likely false rape accusation would not be enough) The rape shield statutes of most states do not specifically address prior false accusation evidence. In these states, case law dictates whether such evidence is covered by the state's rape shield statute and whether such evidence is subject to a rape shield hearing. Still other states appear to exclude prior false accusation evidence from rape shield coverage, but only after the trial judge finds at a hearing that the prior accusation was false and thus admissible."
The article then describes how in Ohio, if the woman admits it is true that she had lied in a prior rape accusation, then a hearing can be held and it can be possible to exclude that from evidence.

Prior (False?) Accusations: Reforming Rape Shields to Reflect the Dynamics of Sexual Assault, by Brett Erin Applegate - J.D. in 2013 at Lewis & Clark Law School

[Puffer Fish]

Below are three stories where the judge prevented the jury from being able to see evidence that might have helped the accused in a rape case.

Man falsely accused of Rape (Dec 15, 2022 in Women's Rights section)
viewtopic.php?f=51&t=183070
The jury was not allowed to hear about the fact that the woman currently accusing a man of rape had previously accused several other men of rape, including her own brother, or the fact that she had serious psychological and mental health issues and was a homeless drug addict and alcoholic, which could have explained a motivation to claim rape had occurred to be able to sue the rehab facility she had been in out of a desperation to get money.
The judge cited the state's "Rape Shield" law in deciding to deny allowing the evidence, even though it was not clear under that law that this evidence should not be allowed.
Trial of James Donald Anderson in 1989 in Oregon.

Judge deciding what is "relevant", excluding evidence from trial (Jan 27, 2023 in Morals & Ethics section)
viewtopic.php?f=51&t=183255
New York eliminates statute of limitations for sexual crimes (several posts down in thread)
viewtopic.php?f=51&t=183081
Accusations of rape when evidence shows the woman was going to have sex with the man (Feb 15, 2023 in Law & Justice section)
viewtopic.php?f=51&t=183299
Professional boxer Mike Tyson's 1992 rape case. The jury was not allowed to hear the account of two witnesses that the woman had been seen sitting in Tyson's lap with her thighs wrapped around him, clearly indicating likely sexual interest, just a few hours before the alleged rape. Tyson ended up getting convicted.

original title: Jury was not allowed to read academic paper (Oct 28, 2022 in Law & Justice section)
title name changed to: Jury was not allowed to breach jury rules
viewtopic.php?f=51&t=182882
Judge dismissed the jury in the middle of the case and ordered a new trial, because one of the jurors had shown the others an academic paper. The academic paper was about "the unhelpfulness of trying to quantify how often false rape accusations were made", which examined the statistics of rape accusations in other cases and tried to mathematically analyze them to draw conclusions to help improve the decision-making process in rape cases. It involved a high profile case where the rape had allegedly taken place in the Australian Parliament House and the accused was a senior advisor of the Australian Liberal Party.

[late]

You need to get laid.

[Puffer Fish]

You need to get laid.

Ironically with that sort of attitude, you're the one who will be more likely to wish you had paid attention to this topic.


(being that men are most likely to be wrongly accused after sleeping with women in casual transient flings. happened to Donald Anderson, happened to Julian Assange, probably happened to Mike Tyson too)

[Potemkin]

Ironically with that sort of attitude, you're the one who will be more likely to wish you had paid attention to this topic.


(being that men are most likely to be wrongly accused after sleeping with women in casual transient flings. happened to Donald Anderson, happened to Julian Assange, probably happened to Mike Tyson too)

You only have to do it once, @Puffer Fish.

[Patrickov]

(being that men are most likely to be wrongly accused after sleeping with women in casual transient flings. happened to Donald Anderson, happened to Julian Assange, probably happened to Mike Tyson too)

As I said before, human anatomy means that women are by definition disadvantaged in such situations. Giving them the benefit of doubt is the least a society can do to leverage the discrepancy.

In some sense, this also does other men a favor because you won't have too few people taking away most of the breeding opportunities. That said, one may argue that this kind of bias reduces breeding opportunities as a whole, as inevitably more women will elect to be independent of the obligation to breed.

[Pants-of-dog]

If anyone cares, the actual change to the law is:

Before an accused rapist can enter evidence in a trial that is about the victom’s private life, it has to be screened beforehand by the judge.

The purpose is to get rid of evidence that is not relevant to the case and serves only to discredit the victim.

https://www.cbc.ca/news/politics/suprem ... -1.6506888

[Puffer Fish]

As I said before, human anatomy means that women are by definition disadvantaged in such situations. Giving them the benefit of doubt is the least a society can do to leverage the discrepancy.

And I personally do believe they should get the benefit of the doubt, but just not 100 percent.

It's one thing to automatically throw the man in prison and ruin his reputation. It's another thing when that same woman has a history of accusing past men of rape.

A woman should be able to get ONE man thrown in prison. She shouldn't be able to keep claiming rape over and over again and keep sending whatever men to prison she wants.

In my personal opinion, if a woman has accused TWO men before of rape, and in one of those cases the evidence pointed towards the fact that she may have been lying, the jury definitely should be able to hear about those past reports, when considering whether to find the THIRD man guilty of rape. I just wish everyone could agree with that.

[Puffer Fish]

Before an accused rapist can enter evidence in a trial that is about the victom’s private life, it has to be screened beforehand by the judge.

I mostly don't have a big problem with that, except when the victim's "private life" is made to include past reports of rape that woman has made, or includes the actual alleged rape incident with the man she is now accusing.

THAT is the issue here.

I also very much think the jury should be allowed to see any evidence showing or suggesting that the woman may have had prior consensual sex with the man she is now accusing of rape.

Hopefully, my opinion here will sound like common sense to most of you, but the issue is the law might sometimes disagree.

The big problem is that some judges are including things into the victim's "private life" that the jury very much should be able to see in a rape case. If it involves a past report of rape, or sex with the man the woman is currently accusing of rape, I believe the jury should be allowed to hear it.

[Pants-of-dog]

@Puffer Fish

The new law does not force judges to exclude evidence.

If any recordings or messages are relevant, the judge has an obligation to include these as evidence.

What the judge is no longer obligated to do is allow evidence that is not relevant. For example, evidence that only serves to discredit the victim and paint her as a promiscuous person.

[Puffer Fish]

The new law does not force judges to exclude evidence.

It's not really a "new law". It's a new court precedent that has set a different interpretation of existing law.

If any recordings or messages are relevant, the judge has an obligation to include these as evidence.

The issue is what the judge and court precedent consider to be "relevant". It's not necessarily the intuitive things that you or I would consider relevant.
"The devil is in the details", as they say.
As so common in the legal world, not what words say but what words mean.

What the judge is no longer obligated to do is allow evidence that is not relevant. For example, evidence that only serves to discredit the victim and paint her as a promiscuous person.

Unfortunately what you have said there is just not true. It is not that simple.
If you bother to read my second post and understand it, you would see that.

Lots of things in real life are not black and white. Something could be relevant, but the judge for some reason does not consider it relevant enough and so excludes it from evidence. Then the jury doesn't get to make their decision based on all the facts and evidence.

Let me give you one example of a woman's sexual history that could be relevant. A woman accuses a man who works in her office of rape. The man said she had consensual sex with him. What are the chances that the woman would have had sex with a man in her office? The man wants to tell the jury about how this woman had sex with five other men in the office, to show that there was a likelihood this woman may have had consensual sex with him. Should the jury be allowed to hear about it?

If you read the second post in this thread, it explains how there's a danger that a woman's previous rape accusations, which may likely have been false, could get included under her "sexual history" and be prevented from being heard by the jury.

[Pants-of-dog]

It's not really a "new law". It's a new court precedent that has set a different interpretation of existing law.

It is a new law from 2018.

The issue is what the judge and court precedent consider to be "relevant". It's not necessarily the intuitive things that you or I would consider relevant.
"The devil is in the details", as they say.
As so common in the legal world, not what words say but what words mean.

Unfortunately what you have said there is just not true. It is not that simple.
If you bother to read my second post and understand it, you would see that.

No, I am correct.

Please read the news article to which I linked.

Lots of things in real life are not black and white. Something could be relevant, but the judge for some reason does not consider it relevant enough and so excludes it from evidence. Then the jury doesn't get to make their decision based on all the facts and evidence.

Let me give you one example of a woman's sexual history that could be relevant. A woman accuses a man who works in her office of rape. The man said she had consensual sex with him. What are the chances that the woman would have had sex with a man in her office? The man wants to tell the jury about how this woman had sex with five other men in the office, to show that there was a likelihood this woman may have had consensual sex with him. Should the jury be allowed to hear about it?

If you read the second post in this thread, it explains how there's a danger that a woman's previous rape accusations, which may likely have been false, could get included under her "sexual history" and be prevented from being heard by the jury.

Unless the lawyer for the rapist can show that the previous history is relevant to the case, the rapist can no longer try to get free by discrediting the rape victim.

Feel free to read the actual law.

Canada Criminal Code, section 276.

[ingliz]

the woman may have had prior consensual sex with the man she is now accusing of rape.

How is that relevant?

[Puffer Fish]

How is that relevant?

It's very relevant.

To any Conservative it would be completely obvious and self-evident.

There are multiple reasons why it is relevant, why it's not as bad of a thing if the man had done it with her before, but I'm not going to go into that long discussion here. I think what you are mainly asking, is what does that have to do with whether the man should be convicted.

Well, there are several reasons.
For one thing, if it's not as bad as another situation, then I believe that could change the burden of evidence of somewhat. We as a society should be somewhat more willing to let a rapist walk free to protect an innocent man if that rape was not the worst type of rape. It affects things, has a nuanced effect on the stringency of the standards of evidence we might want to apply.
The other reason is that, statistically, a woman is more likely to falsely accuse a man of rape if she's already had consensual sex with him. I know this seems paradoxical but it is true. We could discuss the dynamics of the situation and the reasons for this in a separate thread. (I won't be wasting time explaining that here)

This should be obvious, but if we find evidence that the woman may have likely had prior consensual sex with the man, then that helps give weight to the man's story that the sex could have been consensual. It doesn't prove he is telling the truth, of course, but it does show us that consensual sex between this "random" man and woman could have been very possible.
That alone might not be enough to exonerate him, but perhaps combined with other evidence it could be enough to cast adequate doubt on the woman's claims.

Especially if the woman lied to police investigators and never told them anything about having slept with that man before, and then we can try to catch her in the lie, or show the jury she was probably lying about that, which would then cast doubt on whether she's telling the truth about the rape.

[ingliz]

if we find evidence that the woman may have likely had prior consensual sex with the man, then that helps give weight to the man's story that the sex could have been consensual

How old are you?

Just because a woman is daft enough to consent to have sex with you on one occasion doesn't give you the license to fuck her on another.

No means no!

[Pants-of-dog]

The other reason is that, statistically, a woman is more likely to falsely accuse a man of rape if she's already had consensual sex with him.

This is almost certainly not true.

Provide evidence for this claim, or it will be dismissed.

This should be obvious, but if we find evidence that the woman may have likely had prior consensual sex with the man, then that helps give weight to the man's story that the sex could have been consensual. It doesn't prove he is telling the truth, of course, but it does show us that consensual sex between this "random" man and woman could have been very possible.
That alone might not be enough to exonerate him, but perhaps combined with other evidence it could be enough to cast adequate doubt on the woman's claims.

If the evidence only serves to paint the woman as a slut and thereby make her story seem like it comes from a less moral source, it is not relevant to the case and there is no reason the judge should be forced to allow it.