Mr. Penton,
I realize you stated that you were finished with this thread, but I only just now read your response and will still comment, if for no other reason, to address a few of your statements.
So, is the fact that the woman is a prostitute something that should not be brought up in court? Most people, being asked the question in this way today would say "no." But there is another side to the matter. Perhaps the woman gave consensual sex and then demanded more money from the "john." Now the john will argue that the sex was not rape at all but consensual sex. So at that point (note: without any second witness against the john or any physical evidence), the john's lawyer tries to bring in evidence to say that because the woman is a prostitute (a fact that can be proven), she is trying to punish the man for not giving her more money. Now should the fact of her professon be brought in or not? What is more important in this instance, the probative evidence or the possibility of prejudice?-----Jim Penton
(emphasis added)
If I understand correctly, according to your posts, you're alleging that the defense attorney wants to bring into evidence the profession of the alleged rape victim, but due to the action of radical feminists who brought about a change in law, which you imply now holds that the accused in a rape trial is not innocent until proven guilty in some jurisdictions of the US and Canada, this attorney is unfairly unable to do so.
I am not familar with Canadian law, but would feel safe in betting that if your above scenario came up in a US court room, the defense attorney would be able to bring into evidence this woman's profession as long as it was relevant to this alleged rape. If this john's testimony is that a "disagreement regarding money occurred after sex," then his testimony is certainly relevant to this case. The "shield laws" which were enacted in the US in the 70's and 80's were done so in an effort to "shield" rape victims from harrassment from defense attorneys who would bring up irrelevant evidence of a victim's PRIOR sexual conduct, not to keep out the defendant's relevant testimony. Because of the humiliation of the rape itself, combined with this treatment at trial, it was believed that a large number of rapes went unreported. Rape shield laws prevent evidence of prior sexual conduct, except WITH THE DEFENDANT.
And I agree, noone deserves to raped, not a prostitute, not a child. If in fact your scenario included an "off duty" prostitute who was raped in a park while she was jogging, by a rapist who didn't know or care what her profession was, do you feel her profession relevant evidence at trial? How about if she had a child out of wedlock? Don't you agree that an alleged rape victim's PRIOR sexual conduct, except for that involving the defendant, is irrelevant and should therefore be inadmissable? If a home is broken into, the home-owner raped and her home burglarized, should it matter whether she's a prostitute or a secretary? How about how many sex partners she's had in the past? This line of questioning was, I believe, the reason for the enactment of the rape shield law. There are also laws that may keep a defendant's prior criminal activity from being admissable. These certainly are not laws that hold that a person is "not innocent" until proven guilty.
The entire tone of your initial post, from your choice of words, to your defense of the two-witness policy, to the comments and scenarios regarding radicals and crusades, subtly give the impression that it isn't only Mr. Bowen's words regarding Mr. Franz that frustrate you, but your belief that this "cause" itself is an unwarranted witch hunt. Your implying that innocent persons will be brought to ruin at the hands of this "crusade," appears to be a bit exagerrated. Mr. Bowen, as far as I'm aware of, has never approached the judicial system claiming that any accused molester should be imprisoned without as much as a trial, but has instead worked to expose an outdated, unrealistic, harmful policy on the behalf of those that cannot do so for themselves.
With this two-witness rule, the authorities would most likely not be contacted even if there were two witnesses to the molestation, allowing a molester to move on without so much as a report filed. Are you aware of the fact that molestation victims often have bruising inside? This is evidence, Mr. Penton. Evidence that a medical doctor, not an elder, should be investigating. And certainly there are bound to be children making false allegations, just as there are adults making false allegations. But a criminal allegation, be it the molestation of a child or the rape of an adult, should allow the authorities to speak to the accused and accuser, in order to determine if there may possibly be any evidence to substantiate the allegation. You say on one hand that there is no problem with the two-witness policy, then on the other hand you say the authorities should be contacted. How do you expect the authorities to consistently be contacted with a two-witness policy unless this policy's vulnerability is addressed? And how will this policy be addressed without first being exposed? Expecting a child to live with abuse after being silenced regarding it, then expecting this child to attempt to heal years later in a court, is, like my mother used to say, a bit like attempting to close the barn door after the horse is out.
Edited by - deddaisy on 4 November 2002 20:2:23
Edited by - deddaisy on 4 November 2002 23:48:29