Relevant Arguments

Criminal Trial

(Court Transcripts Volume 13 of 31 pgs. 105, 106)

            DA: I guess let’s start from the end. Is it typical based on the research and your training and experience that children who have no sexual history or experience with any type of sexual act, do they typically dream, quote, or have a graphic sexual dream?

            Therapist: No. The only way that would be possible is if they were actually exposed to some type of graphic sexual stimulation.

            DA: So, are children able to just dream about oral sex being performed on them when they’ve never had that done to them before?

            Therapist: If they’ve not been exposed to it, it would be pretty impossible.

The fact that there was porn in the house, even easily-accessible porn, has nothing to do with whether or not Jane Doe was assaulted. That much is true. But the moment the prosecution started making the argument that she couldn’t know about the sex act without having seen or experienced it, it became extremely relevant.

From the Federal Rules of Evidence, via Wikipedia:

Until the Federal Rules of Evidence were restyled in 2011, Rule 401 defined relevance as follows:

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

This definition incorporates the requirement that evidence be both material ("of consequence to the determination of the action") and have probative value ("having any tendency to make the existence of any [material] fact...more probable or less probable than it would be without the evidence").[2]

The restyled Rule 401, however, separates these traditional concepts in order to make the rule clearer and more easily understood.[3] The amended language essentially rewrites the rule as a test, rather than a definition, for relevance:

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.[4]

So, regarding a), a history of exposure to graphic sexual stimuli would make it possible for a child to dream about a sexual act. Regarding b), given the child’s history of sleep disorders, nightmares, etc, and given her lack of conviction about whether what happened was real or a dream, it seems very consequential in determining whether or not she could tell if she was actually assaulted. But no; the judge laughs, and says her access to porn isn’t relevant. This happened in Volume 15, after the prosecution had made their point that she couldn’t just come up with it on her own:

Criminal Trial

(Court Transcripts Volume 15 of 31 pgs. 10-11)

The Court: So if I drive by an X-rated movie store – I mean, I have access or somebody brings a whole barrel of them and puts them in my house that means that I’m –

            Chip: Judge, that’s not even close to what happen[ed] here.

            The Court: Well, how can you argue that that is – had an effect on her when there’s no evidence that she ever saw it?

            Chip: I can argue that the inference is it was accessible in that house. I don’t know what happened in that house.  I don’t know what happened in the house. It was, by her admission, laying on top of the T.V.

            The Court: So, what is the inference.

            Chip: That she could have seen it. I mean, I understand if the Court doesn’t like my argument, that’s one thing, but it’s permissible.

            The Court: No, no, it doesn’t have anything to do with not liking it.

            Chip: You’re laughing about it.

            The Court: There is no evidence that she saw it.

Something else that I noticed is that the prosecutor focused on a child experiencing the act:

“...children who have no sexual history or experience with any type of sexual act...”

“...when they’ve never had that done to them...”

The therapist leaves a little wiggle room in her answer; saying that if a child was exposed to some kind of graphic sexual stimulation, it would be possible for them to dream about it. I wonder if this was the same therapist from Volume 17, who apparently had no idea that the child’s symptoms pre-dated her accusations by 8 or 9 months; was he or she also unaware that this child had easy access to porn in her own home, and that she was apparently dragged to movie theaters to watch R-rated movies?

http://www.spmaftermath.com/2012/06/spm-responds-part-8e.html

http://en.wikipedia.org/wiki/False_allegation_of_child_sexual_abuse

http://en.wikipedia.org/wiki/Relevance_(law)