Derrick Rose's Lawyers Still Want To Bring Up Jane Doe's Past

Attorneys representing Derrick Rose and the woman accusing him of rape filed a flurry of motions yesterday and today, with several concerning whether the woman’s sexual history is relevant and can be brought up at trial.

The latest legal back-and-forth dates to Sept. 19, when Roses’s lawyers filed a motion (later placed under seal) “to admit probative evidence of plaintiff’s sexual behavior and sexual predisposition.” Judge Michael W. Fitzgerald ruled that such evidence would be inadmissible for “the time being,” with the caveat that he would revisit the issue at a later hearing, scheduled for Thursday.

In the latest filings, Rose’s lawyers argue that bringing up Doe’s past is valid because it’s necessary to refute her own version of events, which include her discussing how she was very conservative and that Rose was the aggressor in their relationship. But, as Roses’s lawyer have done in the past, they take the start of a possibly relevant legal argument and use it as a chance to sling mud at Doe as they do here with the phrase “some plaintiffs.”

The same is true of Ms. Doe’s efforts to present herself as ‘conservative,’ ‘prudish,’ and ‘shy’— this opposition brief is not the place to go into Ms. Doe’s past, except to say that some plaintiffs are better served by focusing on the evening in question, and avoiding any effort to present herself as a supposedly chaste and naïve and shy person.

Doe’s lawyers responded Wednesday, addressing something they hadn’t mentioned much before: Sexual consent happens on a case-by-case basis and is divorced from any woman’s sexual history.

Defendant Rose claims that evidence of Plaintiff Jane Doe’s sexual conduct is relevant to the issue of emotional damages because sexually promiscuous people are less likely to be offended by such conduct. In reality, her past sexual conduct (as alleged by defendants) does not, as defendants would argue, create emotional calluses that lessen the impact of unwelcomed sexual assault and battery. The fact that the Plaintiff Jane Doe may have welcomed sexual advances from Defendant Rose at some point in time before the morning of August 27, 2013 or even welcomed sexual advances from certain individuals in her past, has absolutely no bearing on the emotional trauma she may feel from sexual assault that is unwelcome. Past sexual conduct does not callous one to subsequent, unwelcomed sexual assault.

Rose’s attorneys are correct in that Doe’s attorneys have spilled much legal ink discussing the plaintiff’s past, painting her as innocent and chaste. An early argument made by the plaintiff’s legal team, put forward in their first filing, was that she had been uncomfortable with many of the sexual acts Rose asked her to participate in, such as masturbating on Skype or taking part in group sex. When I asked in a conference call with reporters why they were focusing so much on this, Doe’s lawyers explained that it was part of building their case.

These depictions have clearly been set to build what they think is a more emotional case for the jury. But in doing so her own lawyers seemed to fly in the face of legal principles that many women have fought for: Consent to one action is not a blanket agreement covering all actions. But that in no way excuses the response of Rose and his legal team, who have taken that crack in the door and tried to bust it down altogether with a slut-shaming campaign, which the judge has repeatedly tried to rein in. Rose’s attorneys were threatened last week with sanctions if they “[continued] to utilize language that shames and blames the victims of rape either in his motion practice or before the jury.”

The trial is scheduled to start Oct. 4.