What’s the worst defense to a sexual assault claim you’ve ever heard? There’s some pretty crazy defenses out there, while others are used merely as a tactic to negate one pretty simple concept--consent. Conceptually, it’s an easy concept to grasp, but why then is it so hard for our society to convict sexual assailants? RAINN reports that 994 out of every 1,000 rapists walk free.
Say what? Yes, this defense has really been used before. The term sexsomnia was coined by a doctor in Toronto and refers to someone who involuntarily engages in sexual acts while sleeping. This defense was used in 2003 when a woman out of Toronto awoke at a house party to find a stranger having sex with her.
The man claimed he had no idea what he had done until he later, upon waking, went to the bathroom and noticed he was wearing a condom. A doctor testified on the assailant’s behalf, that the condition was aggravated by alcohol and sleep deprivation, and the accused was acquitted of the sexual assault. Does lack of consent on both parties negate the act? I don’t think so.
Using Sexual History Is the Oldest Tactic in the Book
Using a victim’s sexual past is one of the oldest tactics in the books. Thankfully, rape shield laws protect a victim’s sexual history from being used as a defense and limit the type of sexual history that can be introduced as evidence at trial.
For example, most states won’t allow a defendant to introduce evidence of a victim’s sexual history in past consensual relationships. The reason being is that past sexual experiences with a third party have no bearing on the issue of consent for a present sexual encounter with a defendant.
It is, however, harder to limit introduction of such evidence when a past consensual relationship was with the defendant. Evidence of a victim’s conduct with the defendant can go towards the issue of consent when it’s been present in the past. Same rules apply regarding a victim’s sexual reputation. Although evidence of a victim’s reputation for chastity is not admissible, some states do allow evidence pertaining to specific instances of sexual conduct if the victim previously consented to the type of sexual conduct in question.
For example, a defendant can introduce evidence that the victim previously consented to bondage to show that tying the victim up in the alleged rape case was not by use of force. Even so, consent in the past doesn’t equate to consent in the present.
The Victim Isn’t Really a Victim
This is another theme we see used a lot to negate a lack of consent and it can come in many different forms.
- The victim isn’t really a victim because he/she is lying. The theory goes that the victim lies about consensual sex in order to protect their own reputation from damage so that friends and family don’t find out about their casual sexual encounters.
- The victim isn’t really a victim because he/she was intoxicated.
- The victim isn’t really a victim because he/she was asking for it.
- The victim isn’t really a victim because he/she was a spouse and must have consented.
Voluntary intoxication typically never works as a defense to a crime, especially not in sexual assault cases, but that doesn’t keep defendants from trying it. The idea is that the perpetrator is too intoxicated to recognize the need to obtain consent from the victim, but we also see it used as a way to attack a victim as well. This argument lends towards the idea that if a victim was intoxicated, it wasn’t rape because the victim likely just regretted their decision to have sex. Although there have been cases where this has happened before, this isn’t a fair presumption to use in all cases involving alcohol.
The problems with these types of defenses stem from the fact that rape is still seen as just a crime of force, rather than a crime of lack of consent. Consent is at the core of every defense that could possibly be used and, because of that, many states have crafted affirmative consent laws. Victims don’t have to just say “no,” but rather consent must be present from both parties. Nevertheless, consent can be a tricky thing to try to prove and that’s precisely why these defenses are used absent evidence of use of force.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law