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Dutchess_III's avatar

In a rape situation, do you think that, under certain circumstances, demanding to know the victim's sexual history is justified?

Asked by Dutchess_III (43576points) August 11th, 2015

From this article.

At first I was totally taken aback, but as I read further, the victim’s defense revolves around her sex life, or lack of. She claims she was a virgin at the time.

In the article, in part, it reads, ”...Plaintiff has put her sexual history at issue by arguing that she is unable to have sex, doesn’t have any interest in sex, and has experienced difficulties in romantic relationships due to her inability to have sex and lack of interest in sex.

Well, this leaves me scratching my head. By using that as her defense, doesn’t she open herself up to investigation of those claims?

On the other hand, if it’s true, then investigation will prove it and there should be no problem.

As an aside, I also fail to see what an “inability to have sex,” or lack of interest in sex, has a single thing to do with being raped.
Also, how is a woman “unable” to have sex? Not enjoying it, or it being painful, doesn’t equal an “inability,” the same way as a man with ED would have an inability. That could be a whole ‘nother question, just in case we haven’t had enough to argue about lately.

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35 Answers

gorillapaws's avatar

No this isn’t justified at all. Having been raped is sufficient to believe that she isn’t interested in sex.

That said, I’m having a hard time seeing how this was the school’s fault. The suit should be against the rapist, not the school. If the school had good reason to believe the perpetrator was dangerous and ignored it, that might be a reason, but I can’t see how they should be liable for the trauma.

Also they should fix the transcript to read “expelled.”

Dutchess_III's avatar

“Having been raped is sufficient to believe that she isn’t interested in sex.” What?

gorillapaws's avatar

@Dutchess_III She was raped. I believe this fact is no longer in dispute at this point in the suit. This fact alone is sufficient to believe the victim’s claim that she’s not interested in sex.

Dutchess_III's avatar

Oh, man. I had so hoped you’d just made a typo. Are you saying that if she, or any woman, was interested in sex, no rape would ever be necessary?
I know that’s not what you’re saying…..

gorillapaws's avatar

@Dutchess_III You’re correct, that’s not what I’m saying. Here’s an analogy:

Let’s say someone was tricked into eating their cat mixed with beef in a hamburger. That person found out and said they can’t eat hamburgers anymore. I think the horror of the crime is sufficient to take them at their word. No need to hire a private investigator to follow them around, or interview every restaurant they’ve ever eaten at after the incident to verify the claim that they don’t eat hamburgers. Likewise if this happened to a different person and they were able to still eat hamburgers, that’s not proof that the crime didn’t happen.

Is that clear enough?

Dutchess_III's avatar

Not really. Most adult women who are raped have a healthy interest in non-traumatic sex under other circumstances.

gorillapaws's avatar

@Dutchess_III That may be true, but if a rape victim told me she lost interest in sex after the attack, I’d have every reason to believe her.

Furthermore, the victim in this case was a virgin, which means she’s not like most other rape victims. She has never had the opportunity to experience sex in a positive/healthy way.

Dutchess_III's avatar

But that’s not the case. This woman is saying she has never had any interest in sex, even before the attack. She goes so far as to say she ”can’t” have sex, (which makes no sense to me.) She isn’t claiming any of that was the result of the rape.

It is because of that “defense” that they’ve opened up the inquiry.

gorillapaws's avatar

@Dutchess_III “This woman is saying she has never had any interest in sex, even before the attack.”

I just re-read the article and didn’t see where you were getting this from. I interpreted the statements to mean this was a result of the trauma she experienced. Furthermore it’s possible for women to not be able to have sex, especially as the result of psychological trauma. See Vaginismus.

Dutchess_III's avatar

Well, looking at it from that angle, they just don’t make it very clear. They never say that it was due to the assault, which you think that they would if it was.
I assumed that her lack of interest in sex was her defense to show that it was rape, and not consensual sex.

gorillapaws's avatar

@Dutchess_III I agree it was somewhat unclear, but I interpreted it as the issue of whether the rape occurred had already been established, and this was a civil suit regarding the school’s blame and payment for the longterm suffering/damage that resulted. If she couldn’t have sex prior to the rape, then not being able to have sex after the rape isn’t something you would get compensated for (IANAL) as far as I understand how the law works.

Let’s say you lost a leg in a mishap at the rodeo. Many years later, I cause a car accident with you, you can’t add the pain and suffering of your missing limb to the settlement. It happened prior to the accident so it’s not part of the lawsuit. Any NEW problems would be relevant though. That’s how I read the article.

Dutchess_III's avatar

I have to agree with you on that point, @gorillapaws, if that’s what she’s saying. So let’s go with the assumption that she’s claiming that she can’t do these things because of the rape, and is suing for it. In that case they have every right to try and validate her claims, right?

Also, the person who was expelled wasn’t the guy who raped her. He was the one who gave her the alcohol that might have been laced with drugs.
… she alleges a student employed by the college as a peer adviser provided her possibly-drugged alcohol on the night she was assaulted by another male classmate. He was found responsible for sexual misconduct and expelled in 2013, but the college changed his status on his transcript from “expelled” to “voluntarily withdrawn” in order to “assist him in seeking further studies,” according to a letter Doe received from a dean.

Don’t know the details of it, so I can’t make the call as to whether changing the status was the right thing to do or not.

Pied_Pfeffer's avatar

In this case, yes, “Jane Doe” should provide the information requested. Here is why:

In this case, rape victim “Jane Doe” is the plaintiff. Virginia Wesleyan College is the defendant. In a case like this, the plaintiff’s lawyer needs to supply evidence of guilt against the defendant. Since the charge is about her inability and lack of desire for sex post-rape while claiming to be a virgin at the time of the rape, it seems like a fair question for the defense team to ask, especially when $10M is on the line.

@Dutchess_III and @gorillapaws I agree with both of you: the article is unclear. I had to read it twice and then seek out others for more details, with little luck.

Zaku's avatar

In general, I would tend to agree that it’s not justified because, as the victim’s lawyer put it:

“This is a drug facilitated rape of a freshman woman on her third day of orientation by a stranger,” Halperin told The Huffington Post Saturday. “To ask the victim in discovery to name every sexual partner and romantic interest she has ever had is irrelevant and outrageous and totally inappropriate. It is intended to harass and intimidate the victim.

However, from a legal tactics perspective, I think the defense attorney also has a technically valid point when he states that the victim/plaintiff:

“is seeking money damages based in part on the following claims: she is unable to have sex, does not have any interest in sex, and has experienced difficulties in romantic relationships due to her inability to have sex and lack of interest in sex,” Mark C. Nanavati, an attorney hired by Virginia Wesleyan, told HuffPost on Sunday. “Given the significance of these claims in a case where $10 million is at issue, Virginia Wesleyan has to investigate these claims like any other claims Miss Doe is making in order to properly investigate and defend this suit.”

By making her sexuality the basis of her claim, she did make it relevant. So it does make some logical sense/justification for them to ask. The plaintiff can provide or not provide what she chooses, and the judge (and/or jury?) can weigh how much they believe her claim based on that. In other words, she could refuse to provide details, yet still maintain credibility and sympathy and win. Maybe.

It’s an awful situation all around. I would think that the victim would be due quite a bit of damage, regardless of the impact on her sex life. Perhaps it was an unfortunate choice of basis for damages. If someone raped me, I think I’d be pretty convinced they owed me their life… though I wouldn’t think the university that employed the rapists owed me anything unless they’d been negligent in not detecting and removing the rapist, which could be the case. It certainly doesn’t say much positive to me about them that they changed his record from “expelled” to “voluntarily withdrawn” unless they think he’s innocent – if they’re covering up rape, I’d think they should be punished for that too.

gorillapaws's avatar

There is 2 components to the problem. 1 Is the school guilty of (what I assume to be) negligence for creating the situation where it was likely that the plaintiff would be drugged, or liable for the conduct of it’s student employee that lead to the rape. I don’t know all of the details, but I’m inclined to believe the school isn’t at fault here (unless this employee had a history of this kind of behavior or something and they ignored it).

2. Assuming the school is responsible, then what are the damages that their failure caused? In this case the Plaintiff is claiming she can’t have sex, and that her virginity was stolen. On this point I’m inclined to agree with the victim, and take her at her word. If verification is really necessary, I think the most reasonable solution would be for the Plaintiff to agree to meet with a licensed therapist who specializes in treating rape victims of the Defendant’s choosing to testify for the Defense as to the extent of her psychological trauma.

Ultimately, in my opinion, Ms. Doe should be suing the scumbag who raped her, and his accomplice. This comes across as chasing the deep pockets instead of the ones who deserve justice. But again, I don’t know all of the details.

Pied_Pfeffer's avatar

@Dutchess_III and @gorillapaws I’m still with you. Whether the plaintiff chooses to provide the information about her boyfriends/sexual partners is up to her, but if she wants to win the case based upon her accusation, she needs to share it or prove it in some other way. This can lead to psychiatric evaluations, often resulting in two different people; one for each team. The one who has the most money on the front end often wins that argument for a variety of reasons.

Dutchess_III's avatar

^^^^ Agreed.
But wait…her attorney is trying to block the request, but didn’t her attorney have to agree with her allegations? So why would he attempt to block the gathering of the evidence?

Dutchess_III's avatar

Oh, @gorillapaws…you said, ”[Since she was a virgin]...She has never had the opportunity to experience sex in a positive/healthy way.” That’s not really true. She may not have experienced intercourse, (which often isn’t that spectacular for women) but she may have experienced everything leading up to it, and enjoyed it. She may have even have had orgasms with someone she thought she loved, without having intercourse.
Losing one’s virginity is over rated.

gorillapaws's avatar

@Dutchess_III If she had never experienced intercourse in a positive/healthy way, it’s possible that she cannot experience intercourse in a positive/healthy way as a result of the trauma.

Let’s say (for argument’s sake) she has experienced cunnilingus in a positive way prior to the incident, and she continues to have a positive experience with cunnilingus after the rape, but still cannot engage in intercourse. The suit is based on her inability to experience intercourse and any other sexual activities are irrelevant to the argument. Not being able to have, or to enjoy intercourse is, in itself, a serious problem (meriting damages in a lawsuit) even if she can experience orgasms from other activities.

Dutchess_III's avatar

But they don’t specify intercourse. They just say “sex,” and that covers a lot of ground.

Another aspect to this is if she’s suing because she can’t have sex, doesn’t enjoy it, doesn’t want it, wouldn’t she have to be able to prove that just the opposite was true before the trauma?

janbb's avatar

“Have sex” seems to be used to mean intercourse in many cases these days.

JeSuisRickSpringfield's avatar

If she put it at issue herself, then the defense gets to investigate her claims. But I don’t think the defense should be allowed to put it at issue for the same reason I don’t think someone’s history of charitable giving is relevant to a robbery trial.

Dutchess_III's avatar

I agree with your analogy @JeSuisRickSpringfield. If you have a history of charitable giving, that doesn’t imply that you deserve, or are looking to be robbed.

However, that isn’t the situation in this case. As far as we can ascertain, she is claiming that the trauma she suffered because of being raped has negatively impacted all future consensual sexual encounters.

To re-use your analogy, dude gets robbed, and after that finds himself unable to give charitably because it always brings back the memory of the robbery.

@janbb of course it is assumed they are referring to sexual intercourse. However, there is a lot of enjoyable stuff leading up to intercourse. For some women, sometimes, the actual intercourse can be somewhat anti-climatic. This brings us to the question of, how does she even know if she would have enjoyed actual intercourse before the rape since she was a virgin?

JeSuisRickSpringfield's avatar

@Dutchess_III Right, I understand her claim. And to the extent that she is putting her sex life at issue, I agree that the defense has a right to investigate. That said, I believe that the school is asking for more than what is appropriate. Her virginity claim is ultimately immaterial to the case. The only thing that matters to her suit is whether the rape affected her subsequent sexual relationships. Therefore, that’s the only information they have any right to investigate (or to demand an independent investigation of). And even then, only so far as is necessary to verify the trauma.

Dutchess_III's avatar

^^^^ Right. So they’re demanding to speak with any one she has had any kind of romantic relationship with since the incident. Well, that’s what she opened herself up for by filing this suit, is my opinion.
And I agree. Her virginity claim can not be proven, unless they find someone to testify that they had actual intercourse before the incident. If they can’t, they can’t prove it.
I’m not sure how much of a priority it is though.

JeSuisRickSpringfield's avatar

@Dutchess_III They’re actually demanding to speak with anyone she has ever had any kind of romantic relationship with, not just those since the incident. That’s why I think they are asking for more than what is appropriate. And as a matter of legal strategy, they are being careless. If a judge were to agree that it is inappropriate, the entire request could be denied. But otherwise, I agree that she has opened up her post-rape history to investigation by putting claims about it at issue.

Dutchess_III's avatar

See, that was my original assumption too. I assumed that she had never liked sex, couldn’t have sex, etc., but had no idea what that had to do with rape, or how it could be any kind of defense except to prove that it was not consensual.
But someone else interpreted it to mean that she has been affected this way because of the rape, and that’s where her damages claim is coming in.

So…it’s really hard to know because they never specifically state which one it is. If you found something that is more specific, could you share it?

JeSuisRickSpringfield's avatar

She wasn’t offering it as a defense. Her claim is this: she was a virgin, then she was raped, then she engaged in her first consensual sexual encounter. From her first consensual sexual encounter to her most recent, she has consistently been unable to have sex, to conjure up any interest in sex, and has experienced difficulties in romantic relationships due to her inability to have sex and her lack of interest in sex. Thus she believes the rape caused the problem and is suing for damages.

I agree that this is conveyed somewhat confusingly in the article, but it is the only interpretation that is consistent with both the claims she is making in her lawsuit and the claim that she was a virgin before the rape. Presumably, there is also nothing in her medical records to suggest that her difficulties are the result of some preexisting condition (and possibly even something from a doctor assuring that hey are not the result of such a condition). But given all this, it seems to me that only the testimony of one or two post-rape partners is relevant. Thus why I think the school is asking for too much.

Dutchess_III's avatar

When I said she was offering it as a defense, that was back when I thought the article was saying she’s always had issues. I changed my mind about 3 posts in, and now agree that she’s saying she’s had problems since the rape.
But how do they prove she didn’t have the same problems before the rape? They almost need to, for it to be valid.

gorillapaws's avatar

@Dutchess_III Most women enjoy sex. Since Ms. Doe was a virgin, we can’t know for sure if she would have enjoyed sex prior to the rape. There are cases of other women who have enjoyed sex, then not after being raped. It stands to reason that her problems are most likely the result of the rape and not a preexisting condition.

Furthermore, the standard for a civil case is “preponderance of the evidence” whereas in a criminal case it’s “beyond a reasonable doubt.” As I understand it, preponderance of the evidence is greater than 50%, or more-likey-than-not. Beyond a reasonable doubt is something like the 97%-99% range. So the bar is much lower in this case to demonstrate harm. IANAL, so anyone can feel free to correct anything I have wrong here.

janbb's avatar

I don’t if what you have said is legally true or not but I would think most women would have at least some trouble enjoying sex after being raped or abused. We really don’t have enough details of this case to judge what is going on.

Dutchess_III's avatar

Well, the question is, @janbb, is the prosecution justified in checking out her sexual history after the rape?

janbb's avatar

As I said, we don’t know enough about what they are looking at or why so I have no way of knowing whether they are justified or not. If she is demanding $10,000,000 on the grounds that she can no longer enjoy sex, then they are justified in questioning it. I wouldn’t think her prior sexual history would be relevant although in the past women’s sexual history has been used against them in cases of alleged rape.

JeSuisRickSpringfield's avatar

@Dutchess_III They prove it by showing that there is nothing medically wrong with her that cannot be explained by the rape. If her problem is purely psychological, and if it is consistent with reactions to trauma, then the overwhelming likelihood is that it was caused by the rape (assuming she has no other relevant history of trauma). If there is a physical problem, but one that could have been caused by the rape (and was never noticed in any gynecological exams prior to the rape), then the overwhelming likelihood is again that it was caused by the rape. Good enough for civil court.

Also, you say the question is about whether the prosecution is justified in checking out her sexual history after the rape, but your original question was actually about her sexual history more generally. And that really is the right question since the school isn’t asking just for her post-rape sexual history. They are trying to have it both ways by saying “we’re not saying she’s a liar or an unchaste woman, we’re just saying we don’t believe that she was a virgin when she was raped.” They want to know the name of every partner she’s ever had, despite the fact that the lawsuit is based on damages to her long-term relationships after the rape (meaning only long-term, post-rape boyfriends could possibly be relevant to her claims).

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