Credibility Proxies: Prostitution

In the previous few posts, we’ve learned that theft and violence generally get different treatment when offered as credibility proxies.  For reasons that remain somewhat foggy, theft is relevant to credibility and violence isn’t.  The bottom line is that courts say they are looking at deliberate violation of social standards as an indication that acts are linked to credibility and for mysterious reasons violence does not strike courts as falling into that category.  To give these courts the benefit of the doubt, it’s possible that thieving just seems like it involves dishonesty because taking things that don’t belong to you is in some ways akin to lying about ownership.  Violence, on the other hand, doesn’t involve that same equation.  So the natural next question is what to do with a crime that is not violent and does not involve any kind of thievery.  Prostitution fits this bill nicely.

I’ve written about this issue before here (and Colin very kindly blogged about it), but it is worth discussing in the broader context of credibility proxies.  To do so, I’ll turn to another recent case.  In 2012, a California district court decided a habeas case involving a man who had been convicted of rape, Foy v. Lopez, 2012 WL 439620.  One of the petitioner’s arguments was that the trial court erred in not admitting certain evidence about the victim’s sexual history and sexual conduct AFTER the rape allegedly occurred.  One might imagine, given this argument, that the trial court had excluded all evidence about the victim’s sexual history, but this wasn’t the case.  In fact, the prosecution had conceded that the victim’s two subsequent prostitution convictions could be used to impeach her.  What the trial court had done was to exclude any information beyond the fact of the prostitution convictions.

In the face of the defendant’s argument that he should have been allowed to get into the details of the victim’s work as a prostitute, the district court equivocated.  It agreed that arguably “the evidence the prostitution cases arose from conduct in the vicinity of the charged crimes would bolster the claim that the victim lied about what she was doing that night.”  Rather than decide the issue, the district court found that any error was harmless given that the jury learned that the victim was a prostitute who used crack cocaine in the vicinity of the attack.  In other words, they knew she was not “a person of chaste character.”  

This opinion doesn’t leave us with much to go on in trying to understand the rationale behind connecting prostitution with credibility.  In California, witnesses may be impeached with evidence that they committed crimes of “moral turpitude” (for everything you might ever want to know about moral turpitude, see another of my previous articles here).  California courts generally agree that prostitution constitutes a crime of moral turpitude, so they don’t tend to offer much explanation of the connection between that particular crime and credibility.  Adding further to the confusion, in rape cases the issue becomes confounded by the question of what evidence is relevant to consent.  Many rape shield statutes create carve-outs so that juries can find out about prostitution but they don’t necessarily make clear whether this is so that juries can make a propensity inference about consent or because prostitution is relevant to credibility.  In New York, for example, courts hold that the rape shield law allows for cross-examination about convictions for prostitution but not ACTS of prostitution, which echoes the distinction in the federal rules between bad acts and prior convictions, the latter being more readily admissible on the question of credibility. 

In my previous piece on women and credibility, I offer one possible explanation for the fairly widespread acceptance of prostitution evidence to impeach witness credibility.  To give an extremely brief synopsis – during crucial periods of western legal development, women’s honor was bound up with their chastity.  If women didn’t conform to social norms about sexual decorum, they were perceived as dishonorable and therefore lacking in credibility.  A woman’s chastity was thus equated with her honesty in powerful and enduring ways.  In my piece, I explored early attempts to impeach female witnesses with evidence of their lack of chastity.  Prostitutes were particularly vulnerable to such attacks. 

To their credit, early American judges often rejected the connection between a woman’s failure to conform to norms of chastity and her honesty.  Where they almost invariably failed to do so was in rape cases, where they suddenly became unable to distinguish between the question of consent and the question of credibility.  As is evident from the case above and many more like it, this intertwining of sexual deviance with credibility, particularly for women and most especially for victims in rape cases, is still with us.

-JSK