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Here is part 3 of a range of rights-based arguments on sexual harassment that have succeeded at trial. We explain how underpinning gender stereotypes amounts to discrimination; and how the issue concerned can instead be construed, or, dismissed. It is intended that these arguments can be lifted and rephrased for use in similar sexual harassment cases that take place in a variety of cultural contexts.

 

(1) The defendant contended that evidence of the plaintiff's sexual history would demonstrate that she possessed a "motive" or "plan" to seduce her alleged harasser for economic gain, and that, when she failed in her plan, she undertook a plan to retaliate against him by filing her sexual harassment case.

 

Argument: This argument is grounded in the gender stereotype that women will use their sexual power and take advantage of men in order to progress professionally. It also promotes the belief that a woman’s past sexual interactions is evidence of this. The logic behind this is flawed. Sexual interactions, even with multiple men per se, do not prove malicious intent to gain economic benefit. Nor does it prove intent to retaliate and falsely accuse.

 

The question that the defendant ought to satisfy is how the plaintiff's prior sexual conduct would have any bearing on her intent to retaliate against the defendant by suing him for sexual harassment.[1]

 

We understand that it is always important to ensure that the right of the defendant to a fair trial is realised. As such, we propose that a balancing test should be employed in order to decide whether or not evidence of past sexual behaviour should be admitted.

 

The balancing test would require the proponent of the evidence, whether plaintiff or defendant, to convince the court that the probative value of the proffered evidence “substantially outweighs the danger of harm to any victim and of unfair prejudice to any party”.

 

We argue that the burden should be shifted to the party seeking to admit the evidence to demonstrate admissibility rather than making the opponent justify exclusion of the evidence. The test should be whether the probative value of the evidence substantially outweighs the dangers of harm to the victim, unfair prejudice, and confusion of the issues.

 

Allegations that prior sexual history demonstrates a motive to seduce for economic gains is speculative, tenuous and unreasonable.

 

A direct nexus must be established to show a prior history of ensnaring men with sexual advances, and then accusing them of sexual assault. Otherwise a mere history of sexual activity proves nothing other than sexual activity itself – which is not an offence.

 

[1] Priest v Rotary 98 FRD 761 (1983) at 760

 

(2) The defendant attempted to argue that evidence of the plaintiff’s prior sexual conduct will show that she was not likely to have been emotionally disturbed or injured by the alleged harassment.

 

Argument: We argue that even if evidence was admitted showing that the complainant had consensually engaged in sexual play with persons other than her alleged harasser and had a number of former sexual partners, it would not follow from those facts that the unwelcomed sexual advances of a different individual would not offend her.

 

To find otherwise would imply that the emotional responses of harassment victims are always the same, or that, a woman who enjoys sexual encounters enjoys all sexual encounters, such that it cannot be conceived that she would refuse such advances.

 

Furthermore, we would have to accept the absurd and deeply offensive notion that a woman's consensual conduct with some individuals negates her right to say 'no' to the same or similar conduct with others.[1]

 

[1] Department of Fair Employment & Housing v. Fresno Hilton Hotel, F.E.H.C. Dec. No. 84-03 p. 23

 

(3) The defendant attempted to argue that evidence of the past sexual relationship between himself and the Plaintiff should be admitted to prove that she gave consent to sexual intercourse.

 

Argument: We argue that women who allege that they have been raped should not be harassed unfairly by questions in court about their previous sexual experiences:[1]

 

We seek to avoid submission of such evidence except on exceptional grounds, because it is based on the assumption too often made in the past, that a woman who has had sex with one man is more likely to consent to sex with other men. It also assumes that the evidence of a promiscuous woman is less credible and requires corroboration, whereas, a single testimony is sufficient in other crimes.

 

We seek to avoid the implication that consensual sex once means that any future sex was with the woman's consent, in perpetuity. We remind the court that the question as to whether there was consent has to be answered as to whether there was consent a) with this accused, b) on this occasion and c) in these circumstances.

 

If the past sexual relationship led the defendant to assume consent without obtaining real consent at the material time, then it is automatically proven that in fact there was no consent given.

 

If the questioning of prior sex becomes open to the defendant regardless of its function and outcome, this will result in fear to report rape, which raises public safety and social and health concerns. We argue that the defendant’s right to cross-examine the complainant can still be preserved and respected without the blanket approval of prior sex questioning regardless of the ends it serves.

 

[1]Regina v A [2001] UKHL 25 <http://www.publications.parliament.uk/pa/ld200001/ldjudgmt/jd010517/regina-1.htm>

 

[2]Priest v Rotary 98 FRD 761 (1983)

 

[3] Ibid. at 762

 

See all parts of this series here.

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