I’m breaking my self-imposed ban not to post during my morning evidence class (which largely explains my lack of posting over the last two days) to post this prickly moment from in-class discussion. I apologize in advance if this is not interesting to anyone but law students taking Evidence. It actually might not translate at all online, but I’ll try.
Generally, you can’t offer evidence to show that someone has a trait of character if you’re offering that evidence to prove that they acted consistently with that trait. One of the many exceptions to this rule is if you’re talking about “habit” or “routine practice.” This is meant to refer only to items that are mindless, unthinking, automatic, rote, mechanical. Basically, these exceptions mean that in x situation, you will pretty much always do y.
We’re talking about the stricter requirements for evidence of a sexual assault victim’s character/sexual history. Our professor asked why it might be relevant if the victim has had sexual interactions with the defendant in the past.
One of my classmates answered, “Because it’s habit or routine practice?”
Something about a student thinking there could ever be a situation where a woman would consider sex with a man to be so rote and mindless that she instantly would remove her clothes and have sex with him in a given scenario...
....okay, well, now that I put it this way, it sounds more relatable. I guess I should emphasize that “habit” is truly automatic and doesn’t leave room for, “I didn’t feel like it that day.”
I don’t know. Maybe this is just my oversensitive Jewish Girl Law Student coming through? Does it affect your coloring of the situation if I tell you that the student commenter is male? Did you already assume that?