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ELTRG Seminar: ‘On Reliability and Sexual History Evidence’ – Talita Ferrantelli, London School of Economics and University of Amsterdam

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Location:

Neil MacCormick Room,
Old College

Date/time

Thu 28 November 2024
15:00-17:00

This is a seminar organised by the Edinburgh Legal Theory Research Group. The speaker Talita Ferrantelli, from the London School of Economics and the University of Amsterdam, will be presenting her paper ‘On Reliability and Sexual History Evidence’.

Our seminars consist of a 30-minute presentation given by the author, followed by a 60 to 90-minute Q&A. This is not a pre-read event, but the paper will still be circulated beforehand through our mailing list. To subscribe, please send an email to edinburgh.legal.theory@gmail.com.

Author bio: Talita is a PhD candidate at the Philosophy Department of the LSE, and a Lecturer at the PPLE College at the University of Amsterdam. Her research falls squarely at the intersection of epistemology and sexual ethics. She is interested in addressing questions related to sexual consent and sexual violations from an epistemic perspective.

Abstract: Suppose an individual is accused of rape in a court of law. The defence claims that the sexual intercourse was consensual. Is evidence of the complainant’s sexual history relevant to judging the case? This paper aims to probe the epistemic value of sexual history evidence in sexual assault trials. Contra traditional views, I argue that sexual history evidence (SHE) is more likely reliable evidence of non-consent in rape cases. I look specifically at one exception for admission of sexual history evidence in England and Wales. SHE is sometimes admitted under the principle of similarity (or non- coincidence) between the sexual encounter of the incident and other sexual experiences had by the complainant. Mike Redmayne (2012) argues that sexual history evidence is relevant in rape cases for both issues of consent and non-consent. He contends that inferences to consent and non-consent are equally consistent, and therefore, the ultimate decision on SHE’s admissibility should be made either on moral grounds or on a contextual-specific basis. Building on Mike Redmayne’s (2012) account of the admissibility of similar sexual history evidence, I take the question of relevance as a matter of epistemic reliability. In my account, and against Redmayne, I show that inferences from sexual history evidence to consent and non-consent can be prima facie weighted and assessed. Following reliabilist epistemologies, I show that we have epistemic reasons to reject similar sexual history evidence to determine the likelihood of consent and admit similar sexual history as relevant evidence of lack of consent. This is because, I suggest, inferences from similar sexual history evidence to the presence of consent in a rape case are sustained by an epistemic mechanism that is suspicious. The persistence and prevalence of explanatory inferences on sexual history as evidence of consent are explained by patriarchal mechanisms of inculcation (Aytac, Rossi 2022). In contrast, inferences from similar sexual history to prove lack of consent usually hinge on epistemically reliable beliefs, which are often overlooked and undermined by the same ideological mechanism. To illustrate my argument, I will focus on the use of sexual history evidence in a legal case in which, after the admission of sexual history evidence, the defendant was acquitted of rape in a retrial (R v Evans). My analysis ultimately aims to bring out purely epistemic reasons to contest the admissibility of evidence of this nature in sexual assault trials, complementing accounts that are primarily concerned with ethical and political dimensions related to the (in)admissibility of sexual history evidence.

 

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