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.

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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 [2011] 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.

Comments From You

jon // Posted 02 November 2011 at 13:59


"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."

I get the feeling that the word "soberly dress" here refers not just to unprovocative-dress but also to non-intoxicated, as indicated by the previous paragraph. Therefore, it is disingenious to counter "provocatively" with "soberly", since the former tells us nothing about whether the victim consented, whereas we know that a person who is drunk is more likely to consent. The latter information *should* be made available to a jury, as a consent under the influence of alcohol should not be regarded as full consent.

Jennifer Drew // Posted 02 November 2011 at 14:37

Oh so the father of murdered Joanna Yeates believes the court was correct in ruling evidence concerning convicted femicide murderer Vincent Tabak as 'irrelevant.' This is despite fact Tabak's proclivities wherein he viewed males who had been filmed as they subjected innumerable women to strangulation and rape were almost identical to what Tabak committed against Ms. Yeates. Do not forget Tabak also viewed filmed male sexual violence against girl and boy children because there is no distinction between so-called adult porn and child porn - both are ones wherein it is men who are the agents with women and girls merely men's dehumanised sexualised playthings - to be used, abused and then discarded.

One's man's view does not mean he is correct and furthermore when Graham Coutts was tried for the murder of Jane Longhurst the court decided prosecution could inform the court and jury of Coutt's predilection for viewing filmed male sexual violence against women because again what Coutts did to Ms. Longhurst was almost identical to what Coutts had viewed.

Then too - women who fantasise about a male(s) raping them do not routinely film themselves or allow themselves to be filmed as a real man subjects them to rape. That is a straw argument and one which is used by male supremacists and their apologists to ensure the sexual politics of how and why our male created and male-centric legal system works very hard to ensure male violence against women is minimalised/excused or justified.

I've lost count of the innumerable so-called male deviants who are charged with committing violence against women because given there is so much routine male violence against women not all these men can be 'deviants or loners' as male supremacy claims. Still keep repeating the lies and it swiftly becomes truths!

MariaS // Posted 02 November 2011 at 16:20

I don't know whether or not the evidence of the specific porn viewed by Tabak and other aspects of his sexual life,should have been admissible or not. It seems odd to me that evidence that sounds strongly relevant to the circumstances of the crime, and evidence that contradicted the defence's mitigating portrayal of Tabak with regard to his sexual experiences could not be presented, but I can see that the judge's caution may well have been wise, with regard to consideration of a potential appeal against the verdict. However, equally the prosecution felt they had good arguments for the admissiblity and specific relevance of the evidence, even if the judge decided against them in this respect, and as Melanie shows in another case evidence of relevant specific porn use was allowed as evidence.

I disagree though with Melanie's argument that one reason why it was right to disallow the evidence is that there are implications for how sexual assault victims are treated in court:

"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"

I am not convinced that something "prejudicial" to a witness/complainant is equivalent to something that is potentially supportive evidence towards the actions and intentions of a defendant on trial for alleged criminal acts. The victim and the defendant are not in equivalent positions, and the relevance of sexual history or of evidence of sexual preferences is not the same. I have only a layperson's legal knowledge though, and welcome more expert opinion.

If one judge is able to consider and decide that evidence of a defendant's sexual preferences and activity should be excluded from a trial, even if there is a strong argument for the relevance of the evidence, then judges, prosecutors and police should be well able to understand clearly why facts of how a rape victim dressed, whether or not they had drunk alcohol, and their previous sexual experiences and expressed sexual preferences are not remotely relevant to the issue of consent or lack of consent to sexual activity with a particular person or persons on the specific occasion or occasions that the case is concerned with. That such facts about the victim do not have any necessary bearing on the actions of the defendant on the occasion of the alleged offence that they are being tried for. And yet, judges, prosecutors and police do too often make such biased, unfounded decisions with regard to cases of sexual violence - such as the decision to dismiss the gang rape case.

These failings already happen. The decision about the evidence in the Tabak case is not likely to have any real effect on how rape complainants are treated. What the complainant in the gang rape case wrote online had no relevance to whether she did or did not consent to actual sexual activity with all the men accused. The prosecutors failed her by not being prepared to make that argument, by not examining the actions of the defendants on the occasion of the alleged assault. The prosecutor did not make a case based on the victim's own account of what happened.

The victim is not on trial but the problem is that too often people within the criminal justice system with responsibility for prosecuting cases are under the misapprehension that they are, and have prejudicial assumptions about victims, as much as the general public. Feminists have long campaigned against this. In the Evening Standard article linked Keir Starmer clearly takes a stand against toleration of victim-blaming myths: “The prosecutor should proceed on the basis of a notional jury which is wholly unaffected by any myths or stereotypes of the type which, sadly, still have a degree of prevalence.”.

In short, no, we do not have to "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." A woman expresses a fantasy at one time, and at another makes a complaint to the police stating that while she consented to sex with one man, she did not consent to sex with his friends, who assaulted her - why one earth are her latter words disregarded by the prosecution and the judge in favour of her former words? Because of victim-blaming myths and distorted ideas about women, sex and what is and isn't consent.

Rose // Posted 02 November 2011 at 19:06

The big difference for me is between someone fantasising about causing fear/pain/potiential death to another for their sexual enjoyment, (acting on a non consenting other),
and, and the other hand, somebody expressing a general interest in an activity, (fun-and-games amoungst consenting adults).

If I expressed interest, intrigue and curiously about killing kittens, and the next time you saw me there was a dead kitten in view - it's easy to link the two.

If, on the other hand, I expressed having a large sex drive, and then reported being attacked and raped, ie forced to have sex with people I did not wish to have sex with, in a way/place I did not consent to, thats different. Sex a woman does not want does not repressent her sex drive. Hurling a basketball at somebodies head does not satisfy their desire to play basketball.

If I commented online that I was kinda interested in cliff diving, and some random person, at a random time, pushed my off a random cliff...... surely noone would think that that was what I wanted?

(I think that the evidence is evidence, and should therefore have been admitted - interest in group sex is not an invitation to permanently be used by all others as they choose).

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