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From this article about a rape case

Mr. Khan’s lawyers worked relentlessly to discredit the account of the woman, who was not identified by name in the arrest warrant application. They asked repeatedly how much she had to drink, and how she could claim not to remember certain details, such as how she arrived back at her dorm room, but remembered others, such as the alleged assault itself. They parsed her text messages with Mr. Khan, asking if she had not been flirting with him in the days before the incident. They showed off her Halloween costume, a black cat outfit, and asked her why she had not chosen a more modest one, such as “Cinderella in a long flowing gown.”

These questions and arguments just sound like "Gish Gallop" to me.

Assuming we can't make lawyers stop victim-blaming: Can a victim respond to such accusations in court?

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Hope you have a good prosecutor and a sympathetic judge

"They asked repeatedly how much she had to drink ..."

Objection: Asked and answered

"how she could claim not to remember certain details"

Objection: Calls for a conclusion/speculation. The witness is not a brain scientist, she cannot speculate as to why people remember some details and not others. She is testifying as to what she does remember, not as to why she doesn't remember things.

"asking if she had not been flirting with him in the days before the incident"

Objection: Relevance. Is the defense seriously suggesting that flirtation, if it happened, in the preceding days amounts to consent at the time of the incident?

"asked her why she had not chosen a more modest one"

Objection: Relevance. Is the defense now suggesting that what the witness wore amounts to consent?

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    Hypothetically, if nobody else raised objection, can the victim him/herself raise an objection, and refuse to answer? – user15945 Mar 8 '18 at 5:29
  • Good list of objections, Dale M. – A.fm. Mar 8 '18 at 23:01
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Keep in mind that during a criminal case where the victim is testifying on his/her own behalf, neither party has your interests at the core of the case. The prosecution is looking to defend the case and the defense is looking to discredit you. This means the prosecution wants you to look like the most reliable person ever while the defense needs to make you look like you may have mis-remembered the events you described. This is due to the fact that until proven beyond a shadow of a doubt the accused is still innocent. You have to prove to the jury that there was no other way this could have gone down. The defense only has to prove that there could have been another way this happened. The character of the victim does matter as the goal here is to establish they were of proper mind to not consent to being raped. These questions raise in the jury's mind that you were looking to have sex and found some and consented (or, didn't indicate negatively that you did not want this to happen). Sad as it may be, there are cases where the guy and girl do remember the sequence of events differently.

Now that said, the response is situational and no one response will win over your accusation. RAINN offers some helpful hints to what you should and should not do while under oath, but they aren't defenses so much as winning attitudes. A good Prosecutor will know your weaknesses as a witness and will work with you to get out of these situations while still presenting to the jury that you are to be believed over the accused (most lawyers know exactly what a witness is going to say to any given question long before they ask it in court). During Cross, the Defense is limited to only matters that came up during testimony, so there could be ways to avoid the matter based on the prosecutor's questioning... but to paint a picture vividly for the jury, sometimes you need to get into the darker colors. Sometimes, its best for you to "steer into the storm" and confront the questions about your weaknesses directly.

It's also not commonly scene, but there is a phase of questioning where the prosecution will Redirect you and basically ask you to clarify the response on Cross examination (A good lawyer on Cross will only ask Yes or No questions. Redirect will still give you a small chance to clarify statements that might hurt the case. The Defense does get a "ReCross" as well, where he will ask about only things related to Redirect.). These are short, typically boring, and don't count for "Asked And Answered" as they were not asked during the same phase of your testimony.

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    "(or, didn't indicate negatively that you did not want this to happen)" It is worth nothing that this is not okay and not indicating negatively that you do not want something to happen does not equal consent to having that thing happen. – A.fm. Mar 8 '18 at 23:05
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    @A.fm.: I was thinking of the Aziz Assari case when I wrote that (where the controversy lies in what Assari could reasonably interpret was a non-negative response as consent). No way means you can go up to a passed out woman and have your way with her. – hszmv Mar 9 '18 at 15:15
  • I'm not sure what you mean, particularly with the "No way..." sentence. – A.fm. Mar 9 '18 at 20:08
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    @A.fm.: "It in no way..." Basically I'm looking at cases where the "victim" and "accused" were both conscious and the "accused" could have reasonably missed small cues to no consent by the victims actions. – hszmv Mar 9 '18 at 21:00
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Khan's lawyer(s) were perfectly legal in their questioning of the victim on the stand. If they were not, the presiding judge would have stopped their lines of questioning, not allowed evidence or allowed objections by the prosecution.

Khan's lawyers' job was to do anything they legally could to serve their client. Their goal was to make the victim look unreliable, untrustworthy, promiscuous - to be blamed for the alleged rape - in order to convince the jury to acquit their client.

Unfortunately, the best best way for a victim to respond in court and defend themselves against the tactics of such a lawyer is to for the prosecutor to be as aggressive as the lawyer.

  • I'm not asking whether the lawyer can do that. I know he could. I'm asking how to respond. Or how a better lawyer would respond. – user15945 Mar 8 '18 at 5:09
  • A better lawyer would use the same tactics Khan's lawyers did. – BlueDogRanch Mar 8 '18 at 5:55
  • OK. How about the victim? What's the best way to answer questions like "why you had not chosen a more modest one"? – user15945 Mar 8 '18 at 5:59
  • See Dale's answer – BlueDogRanch Mar 8 '18 at 15:46
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    I meant a prosecutor; I wasn't very awake last night. – BlueDogRanch Mar 8 '18 at 16:01

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