Defense Attorney Argues That No Doesn’t Always Mean No

Via the Hand Mirror (h/t Lauredhel), I came across a story this morning about a line of questioning used by a New Zealand defense attorney in cross-examining a woman who alleged that a taxi driver attempted to rape her:

After a long cross-examination, the taxi driver’s lawyer, Letizea Ord, put it to the complainant [that she] said “no” in a joking, flirting or teasing way.

“What I am suggesting to you is the way you used the word `no’ is you weren’t using it seriously,” the defence lawyer said.

The complainant – the primary witness in the case – strongly denied Ms Ord’s suggestion.

After wondering for the umpteenth time whether or not defense attorneys are actually born with a conscience (while simultaneously recognizing the genuinely dire reasons that defense attorneys are needed for a just legal system), and of course yet again going through the fact that a supposedly “joking” no, assuming women actually gave them, should always be verified as joking rather than assumed as such, period, I had to ask myself: what did this attorney hope to gain by this line of questioning?

Really — did she think that the victim was going to have an “aw crap, I didn’t think anyone would realize that despite my struggling, I wanted to have consensual sex with this man and was so incredibly embarrassed about it and desperate for no one to ever find out about my private thoughts that I filed legal charges of assault for an incident that no one would otherwise ever know about!” moment right up there on the stand?

Well, that would be a pretty dumb thought to have.  And no, misogynistic defense attorneys who use rape myths in court to defend rapists aren’t actually that stupid; the problem is, they’re really, really smart.  Smart enough to make this bullshit work.  So I thought about it some more.  What could she be trying to gain?

The answer that I came up with, of course, isn’t pretty.

Obviously, the victim was going to deny her ludicrous charges of actually desiring consensual sex in the back of a taxi with, as Anna put it, “a stranger who got his wanger out by way of introduction,” despite the admitted fact that she said “no.”  But that was  precisely the point.  By forcing her to deny such ludicrous charges, the idea was planted in the jury’s mind that such a ludicrous charge might actually have some merit.  Why else would she bring it up in court?  And isn’t that what women do, anyway?  Have sex and then regret it in the morning, therefore deciding the “ruin” the life of some poor chump by filing rape charges?  And say “no” in order to preserve some kind of illusion of their “virtue,” while really meaning a hearty, desperate “yes”?

Remember, juries actually believe this stuff.

And even worse than that, I bet that the defense attorney expected the woman to be offended, upset, and flustered by her outrageous, misogynistic, insulting, accusatory, and downright triggering line of questioning.  She would have expected her to nervously deny it, perhaps with a quaver in her voice, perhaps a little “too” adamantly.  How could most of us not?  And she would have hoped that a jury would see her quavering voice not as upset and shock but as uncertainty, and a vigorous denial as an attempt to cover up a lie rather than valid self-defense.

I could be wrong, of course.  I’m not this defense attorney.  I don’t know precisely what’s going on in her hateful mind.  But you tell me: if she could not have been reasonably been expecting an admission by the victim (and seriously, she couldn’t), what could she have been going for, other than what I outlined above?

And if you do come up with an alternate answer . . . I can pretty much guarantee that it’s not going to be any better than this.

0 thoughts on “Defense Attorney Argues That No Doesn’t Always Mean No

  1. Feminist Avatar

    A defence attorney’s aim in rape suits is to present an alternative story to the jury- one that sound’s plausible enough to put doubt in their mind. Ideally, this should be put to the witness on the stand as yes or no questions. It doesn’t really matter how they respond [ie yes or no] as the purpose is to tell the alternative story with minimum interruption to the story flow. It’s a very effective technique and the best way for a witness to combat it is to answer in sentences- ‘no, I did not consent’ or better to see if they can repeat their version back ‘no, he attacked me and I screamed and shouted.’ Even this is not hugely effective if the lawyer has a good story- but ultimately that is what happens in court- you get two stories and the jury have to pick. This is also why it’s a risky strategy to try as defence lawyer to present multiple versions of events.

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  3. abyss2hope

    This line of questioning is tapping into the common belief that rapists are not legally responsible for ensuring legal consent and can legally proceed without genuine consent simply because they assume that women who say no are joking or are trying to get sex without taking personal responsibility, etc.

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  5. Anon Ymous

    I think this is tapping into the commonly held belief that rape is a crime of intent. It’s not true – the rapist doesn’t have to mean to rape in order to have done it – but enough people in juries think that rape without intent is just bungled sex (and not a crime) that it’s a ploy worth taking.

    In front of a judge alone? No way. I don’t think anyone would walk away from this thinking the woman had actually consented. But to a jury? All the defence lawyer needs suggest is that it might be *possible* that the rapist didn’t know he was raping. I mean, you don’t want to lock up this *poor*, *innocent* man for something he didn’t know was wrong, now, do you?

    [P.S. My partner, wanting to know what I was typing about, has ventured the opinion that trying to establish that the perp might have had “understandable” confusion is for sentance mitigation purposes. She thinks that if no one is arguing that the woman didn’t say “no”, then it’s cut and dried, practically a directed “find this man guilty”. I think she may be a little naive about the justice system for these kinds of cases… *sigh*]

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  6. Koli

    Ugh, that’s awful. I also can’t believe how many juries find these types of scenarios plausible — that there are just tons of women out there who would honestly just get into a cab with any old taxi cab driver and start to have sex with him. Of course, that’s what happens when porn has brainwashed practically everyone and people believe what they see women “enjoying” in porn above what actual women in their lives enjoy. Ugh.

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