Thread: New gender biased law in England (would love to hear from English women about this)

RE New gender biased law in England As an attorney, these sorts of laws always concern me. Such statutes are shrouded in good intentions, but always wind up being a legal nightmare, because of the unforeseen consequences. Thats the problem with a great deal of our modern laws and statutes. Theyre written in a vague way. For instance, the words coercive control will undoubtedly be left vague, or defined as a term of art, which in legal parlance means that the definition can be expanded or changed. Its not a bad thing to want to ensure that physical and mental abuse are curbed. However, determining honest cases from false claims will be difficult, and this has the potential for prosecutorial abuse. Lets point to a real world example. There are a set of evidentiary rules in America that are known as, the rape shield laws. One of the most contentious rules from this is Federal Rule of EvidenceRule 412. Which prohibits the use of certain types of evidence by the defendant in a case of alleged sexual misconduct. Rule 412 states in pertinent part The Following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct 1 evidence offered to prove that a victim engaged in other sexual behavior or, 2 evidence offered to prove a victims sexual predisposition. Of course, this original rule had to be changed, as defendants argued that in criminal cases, the alleged victims sexual behavior may prove that the defendant actually engaged in consensual sex, or that the alleged victim is making a false allegation of rape. Therefore, Federal Rule of Evidence 412 b goes on to list exceptions to the general rule, and states in pertinent part The court may admit the following evidence in a criminal case A evidence of specific instances of a victims sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence B evidence of specific instances of victims sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor and, C evidence whose exclusion would violate the defendants constitutional rights. Subsection C was added because the rule change was starting to face significant legal challenges based on the constitutionality of the changes. This is a prime example of how what starts off as a simple law, made with the purest of intentions can spiral out of control. However, there was still a problem with the law. If you notice, the exceptions listed above did not mention what the proper process was in a civil case. Therefore, the rule had to be amended again. Thus Federal Rule of Evidence 412b 2 was added and states In a civil case, the court may admit evidence offered to prove a victims sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victims reputation only if the victim has placed it in controversy. Okay, this appears fine on the surface...however, terms of art appear again. What exactly constitutes substantially outweighs...and harm Also, what would be unfairly prejudiced to any party? Well, the rule cannot set that out. So, it now requires a special hearing, in which the evidence is presented in camera behind closed doors to the judge. A determination is then made on a case-by-case basis. Herein lies the problem. Enforcement of these sorts of laws becomes a difficult issue. It leads to greater number of disputes, and the application of the law creates new concerns for Equal Protection. Consequently, this remains one of the most contentious laws on the books. Defense attorneys loath the law, because it ties one hand behind their back when it comes to zealously representing their client. Dont get me wrong, there was a time when this crime was swept under the rug, and not thought of as a real issue. That being said, such laws should only be passed with extreme discretion, and after they have been fully vetted and analyzed to determine whether they would have a disparate impact upon the legal system, and the rights of all parties involved. The idea that the anti-abuse law could be used as a form of punishment when a disagreement occurs between two parties is not at all unfathomable. Pointing again to the example of the rape shield laws, two cases come to mind of abuse of the law. The first is the Kobe Bryant case, and the second case is the Duke Lacrosse Case. Both cases involved the rape shield law, in both cases the defendants were fully acquitted...however, their reputations suffered. The rape shield laws prohibit the alleged victims name from being released to the public via the media. However, the accused are afforded no similar such protection. Consequently, their name is allowed to be broadcast to the public ad nauseam. This results in an unfair and unreasonable exposure to public scorn and ridicule. In the Duke Lacrosse Case, the ProsecutorMike Nifongwas disbarred and sentenced to one day in jail for improper statements made which were unethical and prejudicial to the case. Such improper prosecutions are horrendous and tarnish the reputation of the entire justice and legal system. That is the sort of danger that we should seek to avoid when evaluating such laws. However, it is a risk that youll always run with respect to such laws. Even if the law in question here were to apply equally to both genders, it still runs the risk of being abused by one of the potential parties. I fear that it would wind up being a convoluted mess like the rape shield laws, and would create a quagmire in their court system.