Guest Post 2: Tabak and the legal admissibility of pornography - Melanie Newman
by Josephine Tsui // 1 November 2011, 22:30
Recently, evidence was found that Vincent Tabak (whom was recently found guilty of murdering Joanna Yeats) was in possession of pornography. The death of Joanna Yeats was remarkably similar to the pornography. There are many different opinions about pornography and its legal admissibility in court. We will feature two guest bloggers and their perspectives on the situation. The F-word understands this is a contentious issue and we would like to respect the opinions of all our readers. What are your opinions? We encourage you to comment below.
While a decision to keep a murderer's interest in violent porn secret from the jury might be hard to understand, Melanie Newman argues that women could benefit if the same reasoning were applied to rape cases.
The father of murdered architect Joanna Yeates yesterday said he believed the decision to withhold details of Vincent Tabak's interest in violent porn from the jury was the right one.
"My wife and I are still not certain it contributed to what happened," he told the BBC. Others have found it harder to understand why a defendant's interest in porn featuring strangulation of women was not considered pertinent to motive in a case of a woman killed by strangulation.
As the prosecutor said, in arguments not heard by the jury, he "clearly liked films showing women being held by the neck".
The head of Vincent Tabak's defence team explained the decision by saying the porn could have "unduly influenced the jury" and that it was "entirely prejudicial and ... proved nothing of what actually happened in the fatal few minutes in Joanna's flat."
There's no hard and fast rule that states pornography shouldn't be admissible as evidence of propensity. In a recent case - D  WLR (D) 166 (17 May) - the court decided that the fact a defendant charged with child sex abuse had viewed child pornography could sometimes be admissible.
While the fact a person enjoyed viewing such pictures did not mean that he or she had necessarily abused a child, a sexual interest in children made it more likely that allegations of child abuse were true, the court said.
The Tabak decision was also in stark contrast to Preston Crown Court's recent decision to dismiss a gang rape case because a woman had fantasised on-line about group sex.
If the Preston Court had been consistent with the decision in the Tabak case it would have ruled that evidence of the fantasy was inadmissible because it was "entirely prejudicial" to the victim and said nothing about whether or not she consented to sex on that occasion.
This would undoubtedly have been to the victim's advantage, in that the case would have gone to trial after all.
But if we argue that the porn evidence should have been admissible in the Tabak case, we would also have to accept that the woman's fantasy should be admissible in the Preston case - damaging the prosecution's case.
If we believe Tabak was more likely to have strangled Jo Yeates for sexual reasons than a man with no sexual interest in strangulation, we must also agree that a woman with group sex fantasies is more likely to have consented to sex with several men than a woman with no interest in the idea.
So it may be in women's interests that evidence of "propensity" is not admissible in sexual crimes.
By a further extension of the reasoning in the Tabak case, we could also logically argue for rape cases to exclude details of a woman's dress, for example.
What a woman was wearing has no bearing whatsoever on whether she consented to sex with a particular man.
But like alcohol consumption, "provocative dress" is considered so prejudicial to juries that the director of public prosecutions recently had to order prosecutors not to automatically drop cases involving these factors.
Against this, a defence argument - that a woman who dressed provocatively is more likely to have consented to sex than a woman who dressed soberly - would surely fail as unsubstantiated prejudice.
The above picture was taken by Cumbrian Snapper used under the Creative Commons License.