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Legal Bullshit of the Day

Jill

Studying for the Bar is mind-numbingly boring, but every once in a while you do come across something infuriating enough to pique your interest. For example: New York has a rape shield law, meaning that irrelevant evidence of a rape victim’s sexual history or “reputation for promiscuity” cannot be introduced into evidence. However, in NY, evidence of a victim’s conviction for prostitution within the past three years can be introduced.

Why? Supposedly the rationale isn’t because “prostitutes can’t be raped;” it’s because a theft-of-services claim might be turned into a false rape claim, since selling sex is illegal. That is, the law protects men in situations where the sex was consensual but the guy didn’t pay, the fear being that a prostitute might run to the police and accuse him of raping her since she can’t report the theft of services. So if a rape victim was unrelatedly arrested for prostitution, the defense can tell that to the jury, even if the sexual assault claim didn’t arise out of a sex-for-money transaction.

In other words, bullshit.

44 thoughts on Legal Bullshit of the Day

  2. Talk about ridiculous snake-eating-its-own-tail bullshit. It’s basically admitting “we set things up so that there’s an incentive for you to lie about this thing… so therefore we’re going to ignore you regardless of whether you’re telling the truth.” That may not be “prostitutes can’t be raped” but it’s certainly “who cares if prostitutes get raped.”

  3. this is especially gross because prostitutes experience sexual assault (on and off the job, even if the man did pay) just like any other woman or man could, but because they’re sex workers the law makes it seem like they were ‘asking for it’ and don’t deserve help. shitty.

  4. “It’s basically admitting “we set things up so that there’s an incentive for you to lie about this thing… so therefore we’re going to ignore you regardless of whether you’re telling the truth.””

    And it completely ignores the fact that the justice system generally treats rape victims who report so shabbily that there’s not even really an incentive to lie about it. A theft-of-services conviction can come with a restitution order, but a woman who sees her rapist convicted usually still has to sue in civil court to get anything of that nature if no medical/therapy bills are involved. So precisely what, beyond petty revenge or some very involved, long-term scheme to recoup one session’s worth of lost wages, is the motive for a prostitute reporting a non-paying client as a rapist? Or is this one of those things where we’re just supposed to assume that women are completely irrational and/or grossly stupid and then follow the bouncing ball?

  5. That’s odd. I would think it would only be admissible if the instant case were a sex for money transaction. As you say, BS.

    Bar study IS boring. I went to two BARBRI classes. The second one I found that the guy I had my eye on during the first one had a girlfriend. After that I used the books. But then I’ve always hated group studying and a bunch of scared, competitive Type As (myself included) psyching each other out.

  6. even if the sexual assault claim didn’t arise out of a sex-for-money transaction.

    No way. Even if both parties agree that it had nothing to do with sex-for-money? Hmm.

  7. Isn’t the obvious solution to criminalize solicitation as well as (instead of?) prostitution? That way, a man using that defense ends up self-incriminating.

  8. Actually, I think the solution is to decriminalize prostitution. That way, if someone beats, rapes or steals from a prostitute, she can actually report it (among other positives like, say, treating sex workers like human beings).

  9. I, too, nearly spit out my coffee on that one. The jaw-dropping thing about this rule is that there’s no limiting principle whatsoever. The defense doesn’t have to allege that it was a sex for money transaction, consent doesn’t have to be in controversy, the victim doesn’t even have to be factually able to enter into a sex for money agreement when the crime occurred. A woman could be raped while unconscious in her hospital bed, and the perpetrator could still bring up her conviction from three years prior at his trial. And why? Because some theoretical sex worker might seek inappropriate legal redress for outright theft. It’s infuriating.

  10. What a nice way to tell sex workers that they’re outside society and will never be a part of it.

  11. Plus apparently the rules are different on cross-examination and it can be even longer than three years, any kind of conviction? BARBRI FACTOIDS

  12. As he was describing that law, I thought “Hey, this would really piss Jill off.” Low and Behold. Definitely a fucked up. On a somewhat related note how isletting in past crimes of defendants who commited sexual assaults justified but not others. As the prof said there is no “Once a criminal alwa ys a criminal” doctrine, but we do have “Once a rapist always a rapist.’ This definitely makes sense intuitively, but I wonder what the actual explanation is.

  13. “The defense doesn’t have to allege that it was a sex for money transaction.” That’s where the law fails. No fair-minded person can doubt that a prostitute will have an incentive to lie about rape that isn’t present in other circumstances if the man doesn’t pay. A man falsely accused of raping a prostitute needs to be able to tell the jury about such a motive, but NOT to blacken her reputation in general if the sex-for-money affirmative defense isn’t present.

  14. Seriously? Theft of services? Seriously?

    I’m laughing because otherwise I’d start crying and never stop.

  15. Dear Jill,
    Here in Australia, prostitution is legal, at least in some jurisdictions. Yet problems remain- especially in brothels staffed by illegal immigrants, who have all the problems of illegal prostitutes, and more.

    One argument is that illegal immigrants prostitutes have the same competitive advantages as illegal fruit pickers- lower wages, tax dodges, etc. Another possibility is that johns prefer a sex worker who is in a position of weakness. In other words, it is about power, not sex.

  16. Well, if someone hires a prositute and skips out on the bills, it is, de facto (and apparently de jure in some jurisdictions) theft of service.

    But it’s also fucking rape. Prostitution (generally) consists of sex consented to on the condition of payment. If the client doesn’t render payment, then the the consent is retroactively nullified. It then becomes non-consensual. Non-consensual sex is rape. (I think that holds up. I don’t think I’m equivocating anywhere, or playing a semantic shell game.)

    What I’m getting at is that theft of services is also rape when the service being thieved is sex.

    Of course, that’s irrelevant when it’s jut plain rape, and not a case where the client skipped out on the bill. In that case, rape is rape is rape.

  17. I’m going through this bar study shit too. It is painful.

    Cannot use prior sexual conduct to show ACC unless “not my semen” or “prior consensual sex.” That’s all I’m memorizing . . . even though that’s only federal criminal trials.

    We also have this neat thing called prop 8 out here! Oh man that really fucks things up in CA evidence.

    Contracts is KILLING me.

  19. Actually, I think the solution is to decriminalize prostitution. That way, if someone beats, rapes or steals from a prostitute, she can actually report it (among other positives like, say, treating sex workers like human beings).

    Amen. Also, there are so many ways the legal system gets around the shield laws anyway to bring in a victims sexual history, and even if they don’t, it’s all over the media, which can color a jury’s view (even if they are supposed to ignore or avoid the media). People, sex worker or not, who try to get justice for being raped are tried twice, once in a court of law, and once by the media, and often again by society as a whole. You see, she really shouldn’t have worn a short skirt.

  20. I would make a hard-core relevance argument if I was the prosecutor. Even if it is let in under the rape shield law doesn’t mean it clears the relevance hurdle.

    Freddy, I think this is part of the whole “only violent rape is real rape” dynamic. Many people think “real rape” is so horrific, that even though recidivism rates appear to be lower than other crimes (hard to tell, because rape is so underreported), we are comfortable applying propensity evidence to that crime. (But then they don’t convict for acquaintance rape. Not real enough for them. To juries’ credit, it turns out that they are less likely to convict for, say, burglary, if the crime doesn’t fit their archetypal view of burglary. Problem is, I think most people have a significantly worse understanding of sexual assault than “breaking and entering a dwelling place (at night) to commit a felony therein.”)

  21. Yeah this law was really needed because police have a history of taking crimes committed against sex trade workers seriously.

  22. So what you’re saying is that the defense attorney is not allowed to ask the witness what she does for a living. For any other witness, the fact that a witness earns his or her living in whole or part by criminal means would be admissible. Care to explain why the jury should not be told what the witness’s occupation is?

  23. Bloix-

    It’s not a matter if whether or not the defense should be allowed. The problem is that these days….this is what happens:

    Lawyer: “Miss X, what do you do for a living?”
    Miss X: “I’m involved in the sex industry.” (parts of which are not illegal)
    Lawyer: “So you sell sex and sexuality for a living?”
    Miss X: “Yes.”
    Minds of public, media, and jury- “Well if she sells it for money, it can’t ever really be taken from her!”

    That’s the problem.

  24. So what you’re saying is that the defense attorney is not allowed to ask the witness what she does for a living. For any other witness, the fact that a witness earns his or her living in whole or part by criminal means would be admissible. Care to explain why the jury should not be told what the witness’s occupation is?

    I’m not sure that’s true, actually. Care to identify the federal rule on that point? I can see how it would be admissible if it had to do with the witness’s truthfulness, but I don’t think prostitution cuts it here. And in any case, this isn’t about “the fact that a witness earns his or her living in whole or party by criminal means.” This is about the admissibility of a conviction for a specific crime, and it’s about the victim, not just any witness. I could be wrong here, but as I understand it, the victim’s conviction for a totally unrelated crime (and a crime unrelated to truthfulness or bias) wouldn’t usually be admissible because it’s too prejudicial.

    What would be the relevance here, or the purpose of submitting that evidence? I can see why it would be relevant if the alleged rape occurred in a transaction for money (motive), but if it doesn’t, why is it relevant that the victim was convicted for prostitution within the past three years?

  25. No fair-minded person can doubt that a prostitute will have an incentive to lie about rape that isn’t present in other circumstances if the man doesn’t pay.

    I can. What’s her incentive to lie about rape? Getting the guy put in jail for rape isn’t going to get her her money.

    And in any case I agree with Ryan that having sex with a prostitute and refusing to pay what was agreed to is a form of rape. If I consent to sex with a condition attached, and the person I’m having sex with doesn’t meet the condition, then it wasn’t consent. Which makes it rape.

  26. I disagree with Ryan and roses, not paying the bill, makes it theft, but does not make it rape. Advice: before claiming “X” is rape, ask yourself what a rape victim would say about that. Are you demeaning the crime of rape and devaluing rape by expanding it so broadly?

    And I think it’s a very slippery slope to allow people to retroactively withdraw their consent for sex or somehow conditionalize that sex. Isn’t that exactly what filthy MRA types fear happens?

  27. I mostly agree that prostitution should be legalized, but I’m not sure. I think it may solve a couple problems that sex workers face, but has a lot of attendant risks too. Immigration status is still going to be a big issue, and like Lab Lemming said, suddenly the most available prostitutes will be undocumented immigrants because they are the weakest and most vulnerable. Another concern of mine is that legalizing prostitution would give men an even larger sense of entitlement to sex with women against their will, an idea that it’s lawful for them to buy any woman they want. Maybe that’s totally wrong, or still doesn’t countervail the interests that might be protected by legalizing prostitution. I don’t know.

  28. re: condition of consent

    With the exception of STD though, I have to disagree. Someone who lies about the willingness and ability to pay, and/or marital status, is an asshole, but not a rapist. To me, consent involves the parties agreeing to the type of sex, someone who has STD and lies about it, violates consent because the other person never agree to have sex with that risk factor involved.

    Not paying the prostitute is theft of service, though I think that there should be a law that punish johns for /exploiting/ prostitutes, unless it can be proved that she doesn’t need the money for food/rent or to pay back debt.

    I think anyone’s need to preserve bodily integrity is much more than another person’s ‘need’ to use another person’s body as masturbation aid, because that’s what using a prostitute is, there is no intimacy in it once the want is not mutual. There is no physical need for it either, because you don’t need another person to satisfy the orgasm only part.

    So I would really love to see the government;
    a) Convicts Johns of exploitation, complete with a public lecture of WHY it is wrong
    b) Ensures that nobody goes without basic food and shelter

    After that, if someone who never goes hungry or worry for shelter decides to sell his/her sexual services to move up, I see no problem with the act itself, because it’s no longer one made under /duress/. Though certainly it would mean that we still have to address the problem of social inequality if many individuals are choosing that option because there are little other means for them to move UP.

  29. Bloix, rape shield laws are a prejudice/probativeness analysis in reverse. That’s not usually how they are described, and some people would disagree with characterizing it that way, but that’s my view.

    [For the non-lawyers, the complainant is not a party to a criminal action, just a witness, so what’s unduly prejudicial to a witness is not ordinarily the same sort of concern as what is unduly prejudicial to the defendant]. The law of probably every state now has some sort of rape shield to prevent unduly prejudicial material from being used to throw mud at the complaining witness so that the jury doesn’t care whether she was raped or not. That’s a good thing. The New York statute makes an exception, or fairly specious reasoning, for sex workers. That’s a bad thing.

    Whether there is some probative value to a sex worker’s line of work is not the question. Whether the undue prejudice outweighs the probativeness is the question. It seems clear to me that people’s nasty bias and refusal to stand up for sex workers dwarfs whatever probative value their line of work might have, and all this exception does is permit the defense to put in something which will virtually guarantee an acquittal even if the defendant did it because of bias against the complainant’s job. How is that good public policy?

    Can someone document a conviction for rape of a sex worker, BTW? I seriously don’t know that prosecutors will even bring the case; I’m betting that there is not a single conviction without injuries requiring hospitalization. Just writing whole sectors of women out of the protection of law is totally unacceptable.

  30. Jill,

    Prostitution IS considered related to truthfulness (at least in NY). I have gotten a plaintiff’s prior prostitution conviction into evidence in a NY civil case (case had nothing to do with sex) to impeach her credibility. Now, maybe you think that shouldn’t be allowed as evidence in any case, but given that it is, I think the BarBri teacher framed the question incorrectly. It isn’t “why should a prostitution conviction be admissible in a rape case” but rather “why should a prostitution conviction not be admissible to impeach credibility in a rape case when it otherwise would be.” And maybe the answer is that it’s too prejudicial or that the rape shield law should keep it out, but it’s not the case that the evidence is only getting in because of it being a rape case, it’s getting in despite it being a rape case.

  31. It isn’t “why should a prostitution conviction be admissible in a rape case” but rather “why should a prostitution conviction not be admissible to impeach credibility in a rape case when it otherwise would be.”

    Sigh. That’s the thing, in a rape case, it otherwise wouldn’t be. You are not allowed to impeach a victim of rape by publicly airing out her sex life–which is precisely what disclosing a prostitution conviction accomplishes.

    The majority rule is that in any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible (The Rape Shield law). The exceptions to this rule are generally narrow in criminal cases: (1) to prove that someone other than the defendant is the source of specific physical evidence, (2) to prove the victim and the accused had an ongoing sexual relationship (if consent is in in controversy). [In civil cases, if the evidence would otherwise be admissible and its probative value outweighs the risk of prejudice, then it can come in.]

    New York State adds another exception to the two narrow criminal exceptions: (3) If the victim has been convicted of prostitution within the last three years, that’s admissible. Period. Doesn’t matter what the facts of the case are; doesn’t matter if the victim testifies. There is a rape shield law, but it doesn’t apply to prostitutes. And why? Because the State wants to discourage disguised theft-of-services claims.

  32. Immigration status is still going to be a big issue, and like Lab Lemming said, suddenly the most available prostitutes will be undocumented immigrants because they are the weakest and most vulnerable

    Sappho, I think that you are conflating sex work and trafficking / slavery.

    We can legalize prostitution that is entered into with all parties consenting, while making trafficking and slavery (sexual and non-sexual) illegal. If the prostitute is “participating” in the transaction because s/he has been coerced, that is rape, plain and simple.

    (Also, immigrants aren’t illegal. The status of their documentation (or lack thereof) might be illegal, but it’s not illegal to be a human. If I drive on a suspended license, I’m committing an illegal act, but *I’m* not illegal.)

  33. “Sappho, I think that you are conflating sex work and trafficking / slavery.”

    Haven’t places where sex work is legal or decriminalized (the Netherlands, New Zealand) seen pretty big problems with undocumented immigrants being abused or taken advantage of if not outright trafficked under that cover, though? With fewer people questioning sex work and far fewer resources going to monitoring it, the traffickers wind up benefiting by lowered societal scrutiny. I seriously doubt that keeping sex work illegal is the answer–especially considering that it currently isn’t working out too well–but legalizing it doesn’t seem to be any sort of magic wand, either.

  34. With fewer people questioning sex work and far fewer resources going to monitoring it, the traffickers wind up benefiting by lowered societal scrutiny.

    But that’s precisely the problem — the idea behind decriminalization is that it would protect workers because it would establish regulations, like with porn, which is pretty far from exploitation-free but a hell of a lot better than prostitution and porn before regulations about STD testing and such were in place. Of course, if you take away the scrutiny, people are going to have a field day. The restaurant industry would do the same thing if random health inspections ceased to exist. If you decriminalize without putting safeguards in place for workers, establishing sanitation standards and so on, you’re right that there isn’t an improvement. I’d argue that the two have to be done together in order to make the lives of sex workers better.

  35. I never met a prostitute, who was not demanding payment in advance.

    Even if a prostitute agrees to be paid after service, and even in case the customer does not pay her at all, it is still not rape – maybe you can call it theft or fraud.

    Legally seen however, in feminist countries, it might be rape, as the prostitute has the right – a typical legal loophole – to withdraw her consent even days after she met her customer…but this might happen to every man, even to a married man who had sex with his wife…it might happen with no money involved at all.. suddenly out of the bad mood of the woman, consensual sex is rape.
    I would call this scenario ‘false rape allegation’…

  36. But that’s precisely the problem — the idea behind decriminalization is that it would protect workers because it would establish regulations, like with porn, which is pretty far from exploitation-free but a hell of a lot better than prostitution and porn before regulations about STD testing and such were in place. Of course, if you take away the scrutiny, people are going to have a field day. The restaurant industry would do the same thing if random health inspections ceased to exist.

    But unregulated, illegal porn continues to exist and to be made in the U.S. It’s subject to the same laws as the “legit” porn industry, in theory, but it hasn’t gone away. Similarly, trafficking and coercion isn’t going to go away when we institute decriminalization and worker protections. And coercion of illegal immigrants will continue to be easier than coercion of citizens because illegal immigrants will continue to fear going to the authorities because they fear deportation. IMO, this is not an argument against decriminalization; it is an argument in favor of immigration reform.

  37. Former sex worker here….

    I like the idea of legalization, except to be honest the “regulation” part concerns me if it would mean that sex workers are REQUIRED to get health inspections, or REQUIRED to register with the government. To me these things go against bodily autonomy. The idea of mandatory gyno exams based on one’s occupation frankly pisses me off, grosses me out, and terrifies me to no end. Also, various registration procedures with the state could potentially be a roadblock to other types of future employment, and/or an incentive for all kinds of discrimination & privacy violation if the info wasn’t totally confidential.

    I’m not sure if these same things would take place with decriminalization. I’d be interested in hearing other sex worker’s thoughts.

  38. “Of course, if you take away the scrutiny, people are going to have a field day. ”

    The scrutiny doesn’t go away, it just winds up severely reduced. Once the assumption (in theory) goes from “this is illegal, look for other crimes being committed on top of simple prostitution” to “this is perfectly legal, there’s no need to investigate further unless there’s suspicion of x, y, or z,” you do see less policing. Simple regulation may be up to the job of enforcing minimum safe working conditions for citizen sex workers, but is it up to the task of finding and assisting undocumented immigrants who’ve been coerced into sex work or who are practicing voluntarily but without the protections they should have by law?

    If you take the porn example, it can be a lot easier for porn made with minors to wind up being distributed along with legally-made porn once porn in general has, by dint of laws and regulation, been given a veneer of respectability. It’s no longer automatically suspect; people don’t turn the same critical eye on it. Policy-makers see less cause to allocate the same amount of resources to regulating an industry that they were using to try to stamp it out.

    It would need to be treated like a two-pronged problem from the get-go, I think. Not just that oh, right, we might need to regulate this industry if we’re going to legalized it, but that we’d have to have, ready to go from day one, retooled and ramped up anti-trafficking efforts to prevent a commensurate rise in trafficking organizations using legitimate sex work to camouflage their operation. I don’t really see anyone doing that any time soon. Of course, I don’t really see anyone in this country accepting legal prostitution on a wide scale any time soon, either, so I guess it’s kind of a moot point. The current system isn’t doing anyone any good, but changing it into something better is going to be slow going.

  39. I guess it’s a matter of whether we’re regulating the industry and passing laws analogous to 2257 and so on or regulating the worker.

    I think the appeal of decrim for a lot of people is that the kinds of regulations that you are talking about wouldn’t happen. Which makes sense. A lot of people are prejudiced or self-interested and are probably going to be more concerned with regulating the worker instead of the industry if its been legalized, and so that’s the kind of regulation that would be passed. Since so many people would be more concerned with sex workers spreading diseases around than with workplace protections. Also workplace protections are less applicable to independents…it’s really only applicable if there’s an employer to hold accountable, I would think. At least, that’s my sort-of-fuzzy understanding of the politics and so on.

  40. @GallingGalla

    No big deal but that’s why I said “undocumented immigrants.”

    -Immigration lawyer

  41. It seems to me that if a man refuses to pay a prostitute for her services, he IS raping her. Because that’s non-consensual sex… right?

  42. All I remember is that even the poor bar course professor looked uncomfortable mentioning it.

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