Interesting discussion from Jotwell on this paper (we posted it a while back here), discussed by Myrna Raeder:

Aviva Orenstein, Propensity or Stereotype?: A Misguided Evidence Experiment in Indian Country, 19 Cornell J. Law & Pub. Pol. 173 (2009), available at SSRN.

An excerpt (or two):

Changing evidentiary policy to make it easier to convict rapists and child abusers has been high on the agenda of many feminists who have decried the difficulty of holding such perpetrators accountable, even when they commit serial crimes. In 1994, in a well documented trade, Congress adopted Federal Rules of Evidence 413-415 as the quid pro quo for securing the deciding vote necessary to pass the then pending Violent Crime Control Act. Rules 413-414 specifically permit propensity evidence in sexual assault and child molestation cases. Professor Aviva Orenstein investigates how these rules have been (mis)applied in federal court. Her thought-provoking essay decries the disproportionate use of the rules against Indian defendants, and suggests the repeated presence of negatively stereotyped Indian defendants may actually help perpetuate the myth that rapists are easily identified “others,” an attitude that makes acquaintance rapes incredibly difficult to prove. She also suggests that stereotyping reinforces the propensity evidence and may lead judges to more willingly accept character evidence beyond sex crimes.

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What I particularly appreciated about the article was that Orenstein did not downplay that the victims in these cases are Indian women and children who are more likely to be raped or sexually assaulted than other females in the United States. She explains that Indian women also face stereotyping that can lead to discounting their testimony, and discusses their no-win dilemma that can result in their complaints further stereotyping their entire culture. Importantly, Orenstein suggests why propensity may harm victims. She cites reports implying prosecutors appear reluctant to bring charges in sexual assault cases arising on reservations, and argues that the propensity rules may furnish a convenient reason for prosecutors to refuse cases without evidence of prior sexual crimes.