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  1. 04 Oct '12 02:28 / 2 edits
    To what extent should one's internet searches be considered private information?
    When, if ever, should one be compelled to disclose one's internet search history?

    If I recall correctly, some law enforcement agencies have expressed their
    interest in the internet search histories of alleged sexual offenders (any searches
    for child pornography?) or alleged terrorists (any searches for how to make a
    bomb or for such 'spiritual inspiration' as jihadist tracts?).

    For about five hours during the night of February 25-26, 2011, Jennifer Bennett,
    an attractive young woman, was raped and abused in other ways on her first date
    with Thomas Bray, a 37 year old doctor. Afterward, Jennifer Bennett decided to
    report her rape and to press charges. The defendant's lawyer argued that
    Jennifer Bennett was falsely accusing his client of rape simply because she had
    regretted consenting to a rough sexual encounter with Thomas Bray. That lawyer
    subpoeaned her computer and journals, but she refused to bring them to court.
    The judge did order the prosecution to obtain Jennifer Bennett's internet search
    history from Google in order to corroborate the defence's conjecture that she had
    to look up the definition of rape because at first she had not known she was raped.
    Google refused to disclose that information unless Jennifer Bennett gave her
    permission for it, which she did not. Eventually, Thomas Bray was convicted
    of raping Jennifer Bennett and sentenced to a term of 25 years in prison.
    He also was ordered to pay 50000 USD to Jennifer Bennett as 'compensation'.

    This feminist website has a link to the original story in 'The Oregonian':
    http://jezebel.com/jennifer-bennett/

    Should Jennifer Bennett's Google searches have been revealed to the lawyer
    defending her rapist? Even if it's true that she looked up the legal definition of
    rape, why should that be considered to cast any suspicion upon her credibility?
    Jennifer Bennett's not a lawyer, so she presumably has not memorized the legal
    codes on rape. It's normal for a woman who was forced to submit to sexual
    intercourse on a date to wonder about whether or not she really was raped.
    I suspect that the defence lawyer wished to go on a 'fishing expedition' through
    Jennifer Bennett's private life in search of anything that might make her appear
    less than a 'pure' young lady of virtue in the perceptions of any sexist jurors.
    What if it's true that she had enjoyed reading romance novels wherein sometimes
    the heroine was ravished? Would that imply she had secretly enjoyed her rape?

    "Yes I was raped. It doesn't make me a bad person."
    --Jennifer Bennett

    I was shocked when I read that a judge apparently would regard Jennifer Bennett's
    internet searches as 'fair game' for a hostile lawyer. Of course, I empathize with
    Jennifer Bennett, and I could imagine myself in her place. What happened to her
    could have just as easily happened to any woman who's too trusting on a first date.

    'It's not OK that we live in a society where a victim would consider whether they
    want to report that crime (rape). If someone came up to you and beat you with
    a baseball bat, you wouldn't think, 'Should I report that?'"
    --Jennifer Bennett
  2. 04 Oct '12 12:45
    If the defense's belief is that the alleged victim made up a rape claim after an internet search shouldn't they be able to present evidence to support their claim? I cannot imagine that the argument, if made, would me convincing, so why not allow a person who is facing 25 years in jail to present his defense?
  3. 04 Oct '12 13:49
    Originally posted by quackquack
    If the defense's belief is that the alleged victim made up a rape claim after an internet search shouldn't they be able to present evidence to support their claim? I cannot imagine that the argument, if made, would me convincing, so why not allow a person who is facing 25 years in jail to present his defense?
    Do you think a search for the legal definition of rape constitutes evidence that someone wasn't raped?

    I'm not sure that they shouldn't be allowed to present it, but I'd be depressed in the level of intelligence of the jury if they thought that somehow came close to proving that she wasn't raped.
  4. Standard member sh76
    Civis Americanus Sum
    04 Oct '12 13:56 / 1 edit
    There's a big difference between arguing whether the particular evidence being discussed is probative and whether the search should be fair game.

    For example, if the defense had suspected that she had searched for "How do I fake a rape to extort money from some rich guy" would your answer change then?

    While I appreciate the right to privacy, I think the right of a criminal defendant to produce all relevant evidence should outweigh the right to internet privacy. I don't see why looking up the definition of rape would be that probative, but I don't see why the defense shouldn't be able to present it.
  5. 04 Oct '12 15:06
    Originally posted by PsychoPawn
    Do you think a search for the legal definition of rape constitutes evidence that someone wasn't raped?

    I'm not sure that they shouldn't be allowed to present it, but I'd be depressed in the level of intelligence of the jury if they thought that somehow came close to proving that she wasn't raped.
    I agree with sh76, I think the defense the should be able to present evidence that the alleged victim looked up the definition of rape and then presented a fact pattern consistent with that defintion.

    Initially, I thought that I would not be convinced at all by this line of argument, but as I think about it, it does seem wrong to look up statutes before presenting fcat patterns to authorities. For example, if I got robbed at gun point, I would report the fact pattern to authorities and let them charge based on the actual facts. I would not go on line and see if it met elements of different criminal charges and then present the fact pattern.
  6. 04 Oct '12 15:55
    Originally posted by quackquack

    Initially, I thought that I would not be convinced at all by this line of argument, but as I think about it, it does seem wrong to look up statutes before presenting fcat patterns to authorities. For example, if I got robbed at gun point, I would report the fact pattern to authorities and let them charge based on the actual facts. I would not go on line and see if it met elements of different criminal charges and then present the fact pattern.
    There are a number of other factors having to do with rape than with something like armed robbery.

    For one, you don't have to have a rape-kit done.

    Also, armed robbery usually is pretty cut and dried. With rape I believe there is more variation in the laws.

    Rape is also something that is generally more traumatic and frankly I don't think I would or could hold it against someone who maybe took a minute or two to figure out what their chances of actually getting a conviction might be.

    I do understand that it probably is best to simply go to the police and report it, but sometimes when you go through something traumatic you don't think all that rationally and practically and that doesn't mean that the crime didn't actually happen.
  7. 04 Oct '12 16:07 / 1 edit
    Originally posted by quackquack
    I agree with sh76, I think the defense the should be able to present evidence that the alleged victim looked up the definition of rape and then presented a fact pattern consistent with that defintion.

    Initially, I thought that I would not be convinced at all by this line of argument, but as I think about it, it does seem wrong to look up statutes be ...[text shortened]... line and see if it met elements of different criminal charges and then present the fact pattern.
    As was pointed out the definition of Rape in the mind of the traumatized victim could be far less defined, feelings of guilt are common among victims of sexual violence, it is also possible that in Her shock she was hoping to find that perhaps She had not been raped.

    What would you say if the defense had submitted evidence that the victim had previously visited 'Sado-Masochistic' or role playing web sites. To me this tactic is just a cyber version of the old ploy of trying to show the victim to be of loose moral character.

    I know nothing of US law but is it relatively easy to trawl through the internet history of the accused in the hope of finding patterns which may indicate a propensity for rape?
  8. 04 Oct '12 16:36
    Originally posted by PsychoPawn
    There are a number of other factors having to do with rape than with something like armed robbery.

    For one, you don't have to have a rape-kit done.

    Also, armed robbery usually is pretty cut and dried. With rape I believe there is more variation in the laws.

    Rape is also something that is generally more traumatic and frankly I don't think I wou ...[text shortened]... hat rationally and practically and that doesn't mean that the crime didn't actually happen.
    The issue here is whether the alleged victims internet search should be excluded from trial. The defendant (who is facing 25 years in jail) should be able to present the theory that the defendant had consentual sex and, after the fact, decided that she wanted to allege that a crime was committed.

    Just because the defense might not be persuasive, does not mean that defendant should be denied the opportunity to argue that the accuser's internet search was used to railroad him into a crime that he did not commit.
  9. 04 Oct '12 16:43
    Originally posted by kevcvs57
    As was pointed out the definition of Rape in the mind of the traumatized victim could be far less defined, feelings of guilt are common among victims of sexual violence, it is also possible that in Her shock she was hoping to find that perhaps She had not been raped.

    What would you say if the defense had submitted evidence that the victim had previously ...[text shortened]... story of the accused in the hope of finding patterns which may indicate a propensity for rape?
    I disagree with rape shield laws. I think they are based on an antiquated notions of women and sexual activity.

    If there were an assault case, we could show that the alleged victim had a propensity for violence. Thus in a rape case, I'd argue that we should also be able to show that the alleged victim was the type of person who would consent or engage in this type of activity. I'd let the jury decide what actually happened in the case at hand but don't let a defendant with a questionable background appear like she is Mother Theresa and she couldn't possibly consent to this type of "rough stuff" if indeed she was the type of person who would.
  10. 04 Oct '12 16:47
    Originally posted by quackquack
    I disagree with rape shield laws. I think they are based on an antiquated notions of women and sexual activity.

    If there were an assault case, we could show that the alleged victim had a propensity for violence. Thus in a rape case, I'd argue that we should also be able to show that the alleged victim was the type of person who would consent or eng ...[text shortened]... ibly consent to this type of "rough stuff" if indeed she was the type of person who would.
    If she did have a history of enjoying rough sex then wouldn't she would be less likely to falsely claim rape out of some sense of regret for having rough sex since that is what she actually enjoys?

    I don't see her own sexual preferences actually point one way or another.
  11. 04 Oct '12 17:41
    Originally posted by PsychoPawn
    If she did have a history of enjoying rough sex then wouldn't she would be less likely to falsely claim rape out of some sense of regret for having rough sex since that is what she actually enjoys?

    I don't see her own sexual preferences actually point one way or another.
    The woman claims it was rape. The guy said it was consenual. We definitely need a trial and I'd let the defendant (who is facing 25 year in jail) present a vigorous defense.

    The defendant claims that the alleged victim fantacized about rough sex, consented and later claimed rape. The internet search on the elements of rape prior to seeking medical attention or reporting the crime is certainly relevant to the claim that attack was not serious and was not a crime. I'd let the prosecutor argue that just because she enjoys rough sex doesn't mean that she would falsely claim rape. But I would not deny the defendant the opportunity to present information essential to his defense.
  12. 04 Oct '12 17:47
    Originally posted by quackquack
    I disagree with rape shield laws. I think they are based on an antiquated notions of women and sexual activity.

    If there were an assault case, we could show that the alleged victim had a propensity for violence. Thus in a rape case, I'd argue that we should also be able to show that the alleged victim was the type of person who would consent or eng ...[text shortened]... ibly consent to this type of "rough stuff" if indeed she was the type of person who would.
    (knock knock)Hello by definition you cannot consent to rape.

    "If there were an assault case, we could show that the alleged victim had a propensity for violence."

    So are you going to try and show that an alleged rape victim had a propensity for being raped, or raping other people? See the analogy does not really work does it.

    No I am trying to find out if the alleged rapist can have His internet record subpeona'd to ascertain whether He had a propensity for rape fantasies and stuff like that.
  13. 04 Oct '12 17:55
    Originally posted by quackquack
    The woman claims it was rape. The guy said it was consenual. We definitely need a trial and I'd let the defendant (who is facing 25 year in jail) present a vigorous defense.

    The defendant claims that the alleged victim fantacized about rough sex, consented and later claimed rape. The internet search on the elements of rape prior to seeking medical ...[text shortened]... would not deny the defendant the opportunity to present information essential to his defense.
    I didn't say that the defendant shouldn't have an opportunity to present a defense so I'm not sure why you keep harping on that when my post didn't say anything about that.

    The internet search doesn't indicate at all that she somehow gave consent, it just indicates that she wanted to know the law. Now, if the defense wanted to present that I imagine that is up to the judge as to whether it is admissible as a matter of law. I simply think that if the jury isn't made up of idiots and/or misogynists then they should realize what it is.

    If she said no then it was rape and the guy deserves to go to jail for 25 years.
  14. 04 Oct '12 18:04
    Originally posted by PsychoPawn
    I didn't say that the defendant shouldn't have an opportunity to present a defense so I'm not sure why you keep harping on that when my post didn't say anything about that.

    The internet search doesn't indicate at all that she somehow gave consent, it just indicates that she wanted to know the law. Now, if the defense wanted to present that I imagine t ...[text shortened]... is.

    If she said no then it was rape and the guy deserves to go to jail for 25 years.
    If he is convicted, I have no problem with the punishment and I agree that the jury does not have to believe the defense.

    I simply have a problem with denying the jury facts necessary to support claims. If the evidence were to be excluded, the defendant simply cannot present his defense. I was not there so I have no idea what happened but it certainly could have happened as the defendant claims so let him present his defense.
  15. 04 Oct '12 21:38 / 2 edits
    Originally posted by sh76
    There's a big difference between arguing whether the particular evidence
    being discussed is probative and whether the search should be fair game.

    For example, if the defense had suspected that she had searched for "How do I fake a rape to extort money from some rich guy" would your answer change then?

    While I appreciate the right to privacy, I think t would be that probative, but I don't see why the defense shouldn't be able to present it.
    Why should I be surprised that conservative men seem to have a quite liberal
    (permissive) attitude toward allowing the use of a 'twinkie defense' in the case
    of a man (a white man of high status) who's accused of raping a woman?
    http://en.wikipedia.org/wiki/Twinkie_defense

    First of all, it's common for a judge to disallow some kinds of argument made
    on behalf of the defence (sometimes also on behalf of the prosecution).
    How likely would it be that a 'patriotic' American judge would allow a lawyer
    defending an alleged '9-11 terrorist' to argue that his client was understandably
    provoked to act in response to the many US war crimes against Muslims?
    How likely would it be that the defence would be allowed to present evidence
    of such US war crimes in court? I expect that the judge almost certainly
    would disallow that kind of argument.

    If the lawyer for the accused rapist had made a specific narrowly-defined request
    (which, as far as I know, is not what he did) for information about what the victim
    had searched for the internet, I might consider it 'fair game'. As I wrote earlier,
    however, that lawyer seemed intent on a much broader 'fishing expedition',
    aiming to trawl through the victim's personal life in search of any available dirt.
    Why should the victim have to put her unqualified trust in the 'honourable
    intentions' of the lawyer representing the man whom she accused of raping her?

    "I think the right of a criminal defendent to produce all relevant evidence
    should outweigh the right to internet privacy."
    --sh76

    Would you support the right of an alleged terrorist to cite evidence from WikiLeaks
    or to demand that the US government to release evidence of US war crimes?

    How should the fact (if it had happened in this case) that a woman who was forced
    to submit to sexual intercourse decided to look up the legal definition of rape be
    'relevant evidence' in deciding whether or not she truly was raped?

    I have noticed that some writers (not necessarily sh76) in this thread seem to
    have been quick to cast speculative aspersions on Jennifer Bennett's character.
    As far as I know, Jennifer Bennett's an attractive young white woman who's
    well-educated (a research chemist by profession, if she was able to work),
    if that will help (sarcasm intended), rather than a stereotypical lying 'gold digger'.
    As I said before, I could well imagine myself in her place--having once trusted
    too much--and having to face the personal abuse that she gets on the internet.
    It seems to me that some men here find it much easier to imagine themselves
    in Dr Thomas Bray's former place (not his present one in prison). Do any of
    these men believe there's any societal problem relating to the fact that many,
    if not most, women and girls seem afraid to report their rapes or sexual assaults?