Jottings By An Employer's Lawyer

Wednesday, January 26, 2005

Rape or Consensual Sex? A Delicate Issue for the Courtroom


I have spoken recently on the topic, How Employers Make Juries Mad - And Pay For It With Big Verdicts and one of the issues I mention is the theme of the case. There are some themes that are riskier than others, although sometimes you don't have a choice. One of those very difficult themes - rape v. consensual sex - was played out in a federal court trial in Fresno last week. The danger to the employer is that if the jury does not believe that the admitted sexual conduct was consensual, the employer has also (in the juries' mind) lied to them and impugned the integrity of the plaintiff, who they believe was telling the truth. It is what I call a "shoot at the king" defense; great if it works, but with magnified risk if it fails.

The headline from the Fresno Bee tells you all you need to know about how it played out in this particular case, Jury awards field worker nearly $1m. Most cases of this nature, particularly the ones that are tried, are really very close questions. But the choice is binary, either it was consensual or it was rape, and once that decision has been made, the very vigor with which the opposing argument was made is often reflected in the jury award.


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