o Our prohibition of character evidence is intended to guard against juries’ interpreting prior acts as propensity evidence. Yet propensity is at the heart of 413. We are supposed to punish crimes, not people. 413 cuts against this basic premise of evidence and criminal law. o 413 proponents argued that the rule would enhance victim credibility in difficult “he said, she said” situations. Yet social science research strongly suggests that credibility is not what makes rapes difficult to prove. Often juries do believe victims, yet feel compelled by cultural norms (blaming women for “asking for it,” not wanting to ruin the lives of “good boys,” generally excusing and accepting rape) to nullify. 413 mistakes juror disbelief for juror disregard. o Historically, cases of black men raping white women resulted in false convictions; often the women in these cases were not raped. Given this history, we may not want to enhance victim credibility in all cases. - 413’s overinclusive prior act rule carries several potential harms. o Prior act evidence may increase the risk that a jury will punish the defendant for acts other than those for which he is on trial, encouraging jurors to make a quintessential character determination based on cumulative behavior. They may start to view the absence of prior acts as evidence cutting against the likelihood that the accused is a “rapist” (and did commit the act of rape at issue in his trial). o 413 may also increase wrongful convictions. Police want to pursue defendants most likely to be convicted, so they will tailor their search efforts in favor of those who have already encountered the criminal justice system—a group of men overwhelmingly poor and racial and ethnic minorities. o 413 could have a profound racial impact, given how black-on-white rape is viewed as a worse crime than white-on-black. This law would increase the likelihood that disadvantaged men would be wrongfully convicted for raping strangers and decrease the likelihood that those men who have always evaded prosecution will be convicted. 97
- Scholars and legal reformers must address the question of why men rape . It is odd that motive is so crucial in other criminal law contexts, yet some find it irrelevant with regards to rape. o Some men rape because they want sex, i.e. young, immature men inexperienced with sexual boundaries. o Some men see rape as akin to shoplifting. Sex is a commodity in our culture; thus taking it seems like theft. Like theft, rape is often considered wrong but not “really bad.” Laws against rape are considered “little rules” like those prohibiting shoplifting or littering, rather than big rules like those prohibiting murder. It will be hard for juries/people to believe rape is like murder as long as our culture continues to commodify sex.
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