Changing Hawaii

By Diane Yukihiro Chang

Monday, June 28, 1999

Goodbye to slut defense

HOW appropriate that The Big Guy was out of town last Wednesday, so he gave the honor of signing SB 829 to Lt. Gov./Acting Gov. Mazie Hirono.

After all, this female-friendly bill was authored, tenaciously lobbied for and walked through the Legislature predominantly by women, who have campaigned for its passage for three long years.

The change in Hawaii Rules of Evidence mandates the state courts to follow the lead of federal courts and recognize the Rape Shield Law.

It prohibits use of the slut defense -- the warped reasoning offered up by desperate defense attorneys that, if a woman wasn't or isn't a celibate nun in her social life, then she certainly must want sexual attention in the office. Yeah, right.

The new law will help sexual harassment victims (overwhelmingly women) who have the gumption to do something about the affront to their safety, dignity and civil rights.

Typically, such harassment at the office goes like this: A woman enjoys her career except for one thing -- unsolicited and undesired lewd attention from a male associate or superior. He often makes lascivious comments, asks for a date, tries to kiss or touch her, etc. When she tells him to knock it off, he won't. When she complains to management, nobody cares or does anything to stop him.

This female has three choices: 1) Withstand the daily stress and trauma, 2) quit (and try finding another job in this crummy economy) or 3) sue.

The judicial route, though, was always a toughie. A plaintiff soon learned that, on choosing litigation, she was the one who got the grilling.

Not only must she face her harasser in court, she'd be compelled to expose her past sexual history through written interrogatories, during depositions and while sitting in the witness stand. It was like being revictimized.

"One of the defenses usually used by the employer is trying to prove that she 'welcomed' the advances of the perpetrator, that she 'wanted' it," Honolulu attorney Elizabeth Jubin Fujiwara explained. "In order to establish this, the employer's attorney will invade her privacy by asking her, her neighbors and her family about her past sexual history."

Can you believe it? And she's not even the perpetrator!

"A victim's general character and past behavior clouds the issue of the behavior of the harasser," Fujiwara said. "Consequently, irrelevant information as to the plaintiff's sexual history and conduct outside the workplace should not be used against her by the harasser and his attorneys."

WHEN Hirono signed SB 829 into law last week, she leveled the playing field.

That explained all the smiling faces in the governor's ceremonial office that day -- Fujiwara, who drafted the original bill three years ago; members of the Women's Legislative Caucus with names like Suzanne, Iris, Marilyn and Cynthia; and representatives of supportive groups like the Hawaii Women's Coalition, Hawaii Women Lawyers and the state Commission on the Status of Women.

Thank you, Mazie (and by the way, you looked mighty gubernatorial sitting behind The Big Guy's desk). Now, when a woman goes to court and sues for sexual harassment, it'll be her word and her evidence against his. Period.

Never mind if she has a boyfriend or even several. Never mind if she liked to party decades ago. Because that was then. And this is now. She's not the defendant. He is.

So long, slut defense. Good riddance.

Diane Yukihiro Chang's column runs Monday and Friday.
She can be reached by phone at 525-8607, via e-mail at, or by fax at 523-7863.

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