Johann the Cabbie from his first post:

Ostensibly, rape shield laws were enacted to limit a defendants ability to cross examine a plaintiff regarding her past sexual conduct, the logic being that such information is not only irrelevant, but might prejudice jurors. For instance, if it were brought out that a married woman alleging rape had engaged in extramarital affairs, it might cause a bias in some jurors that strongly disapprove of such behavior and prompt them to acquit her alleged assailant.

If Elam is to use America’s broken system as a reason to call for nullification in rape cases, then why not at any criminal trial? Why not set murderers and robbers free along with the rapists?

The endemic problems with our criminal justice system do not pertain to rape cases only, but are problems in any type of case, whether it be murder, drugs, robbery, or whatnot. With the highest per capita prison population in the world, sloppy police work, over-zealous prosecutors, over-worked and under-paid public defenders, mandatory minimums, three strikes and you’re out laws, a reliance on fallible eyewitness reports, coerced confessions, and a disgraceful class imbalance, America’s justice system is woefully broken.

In his article, he lists the several processes in a rape case, from the police report to the trial, and details all the possible areas that mistakes can be made. He makes a compelling case, but he misses an important and obvious point.

Elam calls for nullification in rape cases, and he has pledged to vote to acquit on any case no mater the evidence. His reasons are twofold – America’s corrupt criminal justice system and rape shield laws.

I could consider nullification myself in certain situations. For example, if I ever serve on a jury for any marijuana case, I’d vote to acquit despite the evidence. The government’s prohibition of marijuana is wrong and immoral, so a vote for not guilty is necessary and proper.

Nullification also has had immoral applications, such as Southern juries refusing to convict white defendants for murders of black victims.

He has his reasons, but first, an introduction to jury nullification. Juries in America have the right to disregard the evidence presented and still vote to acquit an obviously guilty defendant. In the 1850’s, many juries used nullification to disregard the Fugitive Slave Act. During Prohibition, juries frequently let bootleggers free.

So says Paul Elam in the opening of his article on jury nullification and rape . This quote, from a man who has publicly stated that it he ever found himself on a jury a rape case that he would vote to acquit no matter the evidence.

With the possible exception of the sexual molestation of a child, rape is a crime that evokes the most visceral of responses from the average person. And for good reason. Sex that is physically forced or obtained by threat of harm sadistically reduces victims to their most helpless state, and leaves lingering damage that may well last the remainder of a person’s life.

He goes on to say that such laws “seem reasonable,” and he makes a poor attempt to disprove their reasonableness. His approach is to list two instances where rape shield laws were misapplied. That’s all. He makes no attempt to argue against the value or use of the laws. Such an attempt would be doomed to failure, for rape shield laws are important and necessary. Sadly, we still live in a time where many potential jurors could be biased against a sexually promiscuous victim, and those biases could easily lead to the conclusion in the mind of a juror that “the slut deserved it.” Back to my earlier query: why not vote to acquit in any and all criminal cases? Elam’s reasoning is just as applicable in murder trials as it is in rape trials. But, no reasonable person would wish to set any and all defendants free.Jury duty is an important and difficult task. If called to serve, one must look at the evidence carefully, disregard emotion and visceral reactions, and determine the facts as best as possible. If reasonable doubt exists, then by all means, acquit.

But, if a defendant is obviously guilty, a refusal to convict is morally unjustifiable.

♦♦♦

Elam Responds

First, a public thank you to Johann the Cabbie for contributing to this debate, and for his willingness to stand up to “gender” ideologues who have tainted the rational thought community with dogma of late, treating legitimate debate as an anathema — while surrendering all pretense of objectivity to feminist ideology.

I think we will see, however, during the course of this debate, that it is not just feminism that is the problem here. While Johann rejects the irrational and convoluted sycophancy of individuals like Matt Dillahunty, and even seems to understand the etiology of the problem, he also engages in a similarly robotic mentality when making his critique of jury nullification in the case of rape.

This is most plainly obvious in his concluding statement:

But, if a defendant is obviously guilty, a refusal to convict is morally unjustifiable.

The entire nullification argument hinges completely on the idea that obvious guilt is unattainable under the current system, specifically where “rape shield laws,” are concerned.

To ascertain guilt, relevant evidence must be weighed. If the accurate weighing of that evidence is not possible because relevant facts have been intentionally omitted, it amounts to nothing more than a magic show; smoke and mirrors from which no true picture can be gleaned. In that scenario, a fair trial is not possible. It is as easy to understand as it is logical.

Translation of Johann’s concluding remark: Yes, I just watched Mr. Teller saw Mr. Penn in half, with my own eyes. Mr. Teller is obviously guilty of people sawing. To say otherwise would be immoral.

Another part of his rebuttal depends on the implied fallacy that the problems with rape trials are essentially indistinguishable from the problems with other criminal prosecutions:

The endemic problems with our criminal justice system do not pertain to rape cases only, but are problems in any type of case, whether it be murder, drugs, robbery, or whatnot.

This is just one of many non sequiturs in his argument, and it reveals a glaring failure to understand what rape shield laws are and what they actually do. There is no logical reason, in the face of the evidence, to lump all other criminal court proceedings in with rape trials. They are conducted differently, which is the point of this debate.

All Johann has done here is to momentarily pretend that the rape shield laws he was already minimizing now don’t exist at all. Rape trials are just like all other trials, and I am heartbroken over the horrific death of Mr. Penn.

When Johann does take on the rape shield issue more directly, he mounts an unsupported, somewhat emotional defense for the existence of those laws, but fails to rigorously examine, and indeed summarily dismisses, their deleterious effects on the rights of the defendant. Said the Cabbie:

His [Elam’s] approach is to list two instances where rape shield laws were misapplied. That’s all. He makes no attempt to argue against the value or use of the laws.

First, whether laws are “misapplied” is only a matter of legal opinion at the moment, usually of one person. If the defendant is too poor to mount a challenge to the application of the law, then he is screwed. We will never know how many men are in prison right now because of “misapplied” laws that should not have been written in the first place.

If a bad law does not exist, it cannot be misapplied. I am sure that Johann would consider a marijuana case in the same light, as would I.

Johann was unsurprisingly critical of my position that rape shield laws were unreasonable, and asserts that “he [Elam] makes a poor attempt to disprove their reasonableness.”

There are two important things here. One, the lack of reason (though unreasonable they are) in these politically motivated laws is not so much the issue as is their impact on due process. The moment we systematically deny a defendant the right to include evidence casting legitimate concern on the veracity of an accuser, or on possible motive to fabricate, we have not only denied them a Constitutionally guaranteed fair trial, but we have also eviscerated any opportunity to hold credible the evidence required to conclude guilt beyond a reasonable doubt.

More on that in a moment (as if I have not said it enough), but the other fact here is that rape shield laws are not necessary to address the concerns proffered by Johann to begin with. That is right. Even if you take the protection of alleged female victims to be more important than due process, it was still never necessary. Johann states in his rebuttal:

Such an attempt [to argue against rape shield laws] would be doomed to failure, for rape shield laws are important and necessary. Sadly, we still live in a time where many potential jurors could be biased against a sexually promiscuous victim, and those biases could easily lead to the conclusion in the mind of a juror that “the slut deserved it.”

Let me take the more obvious point first, and this also directly applies to Johann’s assertion that the problem is not rape shield laws, but their proper application. Trials, at least those previous to rape shield laws, involve the examination of all relevant evidence. Federal Rule of Evidence 402 declares that irrelevant evidence is inadmissible. Federal Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence more probable or less probable than without the evidence.”

Information that is not relevant, as in the scenario presented by Johann, does not require rape shield laws to be excluded from a case. Let me repeat that. Information that is not relevant does not require rape shield laws to be excluded from a case.

Parts of a woman’s sexual history may or may not be relevant to a case. If a woman who was allegedly raped also happened to have 80 or 90 previous sexual partners, then that would be subject to being excluded from evidence on the basis of relevance. Being promiscuous is not evidence having any tendency to make any fact of consequence more or less probable.

If however, she had a long pattern of making false accusations against lovers she was angry with, as we saw in the Marv Albert case, then that is relevant as it goes to credibility. Had there been no rape shield law there to prompt that judge to rule against that evidence, Albert would very likely have been exonerated, as most everyone involved in the case thought he should have been.

As we saw with both the cases of Marv Albert and Oliver Jovanovic, relevant, exculpatory evidence was deemed inadmissible directly due to rape shield laws, and it cost both of those men severely, while protecting and enabling two known false accusers.

Simply allowing judges to do their jobs in the same way they do all other criminal matters is the reasonable solution to that problem in a world where no perfect solutions exist. But reasonable solutions have had little chance in an arena now governed by sexual politics. Forcing judges to play political football with court rulings does not help facilitate fair trials.

There is a larger, and I would say fatal problem here with Johann’s argument. His insistence on the legitimacy and need for rape shield laws is contingent on the fear that promiscuous women, or women who are portrayed as promiscuous will be penalized due to sexual bias in the jury.

But what of the prejudices that affect men in rape trials?

Take a look at the public reaction in the early days of the Duke Rape case, and Hofstra, and the endless string of men like Kobe Bryant and Dominique Strauss-Kahn who have been demonized and subjected to virtual public lynching by false accusations — because the prevailing public sentiment is to summarily convict men before a trial even happens.

You want to talk bias?

Let’s do, and first by stating flatly that sexual bias, which largely favors perceived female victims, does not suddenly evaporate with a jury summons.

If Johann the Cabbie is concerned with the impact on rape cases caused by sexual bias, why is he not advocating for rape shield laws, for the accused?

I will tell you why. It is because he is affected by the same one dimensional, irrational and lopsided thinking that afflicts Matt Dillahunty, just to a slightly lesser degree. He has surrendered reason for rote protective instinct that has no place in our criminal justice system where life and liberty depend on thoughtful analysis and an unfettered pursuit of the facts.

He sees women as primarily victims, in need of special treatment, yet he offers not one shred of evidence of why that special treatment is necessary, effective, reasonable or consistent with Constitutional demands. And he does not even speculate what the real impact of those special rules might be on the people they most affect.

Sound familiar?