Joel Jacobsen at Judging Crimes has a long and provacative post that wonders why so many of the people freed by the Innocence Projects were found guilty of sex crimes. He makes a lot of points, but let me start by quoting part of his conclusion:
Cases like Avery's and Armstrong's are taking us back to the world in which a woman's testimony is automatically viewed as suspect. Judges reversing rape convictions no longer write about what a dangerous precedent they would be setting if they allowed a conviction to rest on the woman's "unsupported evidence." Instead they talk about the unreliability of eyewitness identification. But it amounts to the same thing.
And judges are too discreet these days to say a woman's "ill fame" makes her testimony unbelievable as a matter of law. But these two Wisconsin cases show that some judges still believe it. The slut defense remains a get-out-of-jail-free card: "Look, she had sex with someone else, too, so what I did wasn't rape."
I think Jacobsen is on to something here, but I want to quibble a bit. The Innocence Projects are primarily focused with death penalty cases. For those cases, the defendant was also guilty of murder of the rape victim since the death penalty can no longer be used for rape alone. As a result, physical evidence linking the defendant to the victim is often an important part of the prosecution's case. Other evidence like third-party witness identification may exist as well. So, in these cases, the lack of access by the defendant to DNA evidence is denial of potentially exculpatory evidence.
However, Jacobsen points out, rightly I think, that the effect of allowing DNA evidence to be used in those cases is to revive the rape narrative that "sluts can't be raped." And I agree with Jacobsen that such a result is very troubling.
My quibbling with Jacobsen is that since we are primarily dealing with an VERY small number of cases, maybe this problem isn't as bad as it seems at first blush. After all, these cases are almost always capital ones - which is a very unusual rape case. And now that DNA evidence is more readily available, we are only focused on those cases tried during an era when DNA evidence was harder to obtain (although you could argue that it is still hard to obtain in some cases).
So, I guess I'm saying that maybe Jacobsen's conclusion is a bit too strong. I agree fundamentally that there is a very troubling parallel to the historical rape narrative about "sluts" and the deployment of DNA evidence. I just wonder if Jacobsen is generalizing a little too much based on this evidence. This doesn't mean combined with other evidence, the point still can't be made. I for one have argued that the "sluts" narrative still has a strong effect in its traditional defense format. I'm just curious how these DNA exonerations really fit into the bigger picture.
Anyway, the whole post is very interesting - I highly recommend checking it out.