According to Massachusetts state law (Chapter 233, Section 21b), evidence of a rape survivor’s prior sexual conduct is irrelevant in any investigation, hearing or other judicial proceedings before a jury. This makes sense obviously because what isn’t being called into question is how many people the survivor has slept with before, or whether the survivor likes kinky sex, but rather the incident of sexual assault or rape that the survivor is coming forward about at the moment.
However in the part of Tufts’ Student Judicial Process booklet that details what goes on involving hearings regarding sexual assault cases at Tufts, it says (bold emphasis mine):
The University applies some elements of the Massachusetts Rape Shield Statute concerning evidence about prior sexual conduct. Usually, no questions, testimony, or evidence about the sexual activity of a complaining or responding party with anyone beside the other party in the case may be introduced. However, if a party introduces information about his/her own sexual activity with someone besides the other party in the case, questions can then be asked about that relationship.
In rare cases, if a party can demonstrate that the opposing party has reason to lie about the allegations made, testimony about prior sexual conduct may be allowed. For example, there may be a preexisting condition or factor that makes it advantageous for the complaining party to have others believe that he or she had been an unwilling participant in the sexual encounter.
Okay. Where do I start? First maybe reiterating the state law would be helpful: prior sexual conduct is irrelevant in any sexual assault / rape court proceedings. Tufts may be a private institution but it still resides within the state of Massachusetts and is not exempt to obeying state law. Even if a party introduces part of his/her previous sexual experience or conduct, it should not be considered at all because it is irrelevant to the case at hand!!!!!
And the whole bit about how “if a party can demonstrate that the opposing party has reason to lie about the allegations made, testimony about prior sexual conduct may be allowed”?! For lack of better words, WTF?!! Obviously the accused will try to show that the accuser “has reason to lie about the allegations made” because s/he does not want to be convicted as a sexual assailant or a rapist! Of course s/he is going to try and discredit and/or smear the survivor as much as possible, which sadly isn’t hard to do because we do live in a rape culture after all.
Another thing the language suggests that some rape survivors lie about being raped. Why would anyone lie about rape and come forward with that allegation?! There’s a false perception out there that many rape survivors lie about it which is total bull because what would s/he gain from lying about rape? Not only are so many survivors shamed into silence, but the ones who do come forward are rarely believed. There is nothing to gain from lying about rape and since it’s such a taboo topic in society, people do not generally lie about it.
The unfortunate reality is that it tends to be a lose-lose situation for survivors. You can be raped, stay silent and the perpetrator goes on living his/her life perfectly fine. Or you can be raped, come forward and be publicly humiliated; face the perpetrator through lengthy court (or student judicial) proceedings; be asked awkward, uncomfortable and irrelevant questions; and still not be believed while the perpetrator goes on living his/her life unscathed.
It’s been said before but it’s important to remind people that rape is the most underreported crime on college campuses across the nation. We need to hold institutions (yes you, Tufts) accountable for flawed policies that do not support survivors and we need to pressure them to improve their policies that are more survivor-friendly and survivor-accessible. Otherwise Tufts (and/or other institutions) just becomes a hostile climate for survivors. For a school that preaches active citizenship, social responsibility and all that jazz, isn’t it hypocritical to have such a broken sexual assault/rape policy?