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View Diary: Solving Rape? - A Very Short Statement For Those Who Just Don't Get It! (358 comments)

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  •  F*ing a sleeping girl (1+ / 0-)
    Recommended by:
    Richard Lyon

    ... to work around her repeated and explicit refusal to consent to your preferred form of sexual activity is not "rape by fraud".  It's simply rape, in any developed nation on Earth.

    Back to the topic at hand.  There's a wide variety of standards used for different things in the legal world - reasonable suspicion, reason to believe, probable cause, credible evidence, substantial evidence, preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt, and beyond a shadow of a doubt.  They're used for different things (more on that later).

    Nobody is talking about eliminating "innocent until proven guilty".  But here's the problem: the default legal assumption in rape cases is that consent was given.  It's up to the prosecution to prove beyond a reasonable doubt that it wasn't.  This is very different from the standard legal assumptions for other crimes.  It's not assumed that a murder victim consented to be murdered.  It's not assumed that a robbery victim consented to give their wallet over to a stranger.  It's not assumed that a identity theft victim consented to have someone else take their identity.  In such a case, yes, the prosecution has to prove "beyond a reasonable doubt" that the accused killed the victim, or took the victim's wallet, or took the victim's identity, etc.  But if that's proven, it's not up to the prosecution to prove that the victim didn't want it.

    But it is that way with rape.  The legal assumption is that if any two random people have sex, no matter how implausible, that consent was given to it - and the prosecution has to prove otherwise. And for this reason, rape is exceedingly difficult to prosecute.  One in four women will be raped at least once in their lives.  Ten percent of men openly admit to having raped in studies where the word "rape" isn't used but sexual situations that are rape are described and the subject is asked if they've done them.  Yet only the tiniest fraction ever end up in jail.  If the legal system is convicting, say, 70% of murderers and 3% of rapists, there's a big problem.  And this shift in legal assumptions for rape cases is the problem.

    I'm not arguing that the prosecution shouldn't have to prove the circumstances - far from it, they must be proved beyond a reasonable doubt, just like always.  I'm not even arguing that the presumption should be that if two random people have sex, it should be assumed that no consent was given (as in the case of, say, murder).  What I am arguing is that the default assumption should be no assumption and consent needs to be established by the "preponderance of evidence" standard.

    The accused's arguments for why the facts are what they are do not inherently get a "beyond a reasonable doubt" standard.  You can't use an insanity defense by saying "I'm insane" and require the state to prove beyond a reasonable doubt that you're not - a preponderance of evidence burden falls on you to prove that you are.  Likewise, a person should not be able to just say "She consented" as a defense and require the state to prove beyond a reasonable doubt that she did not..

    There's a great article on all of this, and a lot more,  here that goes into a lot more detail than I possibly could.  Excerpt:

    It is noteworthy that this is not an unusual feature in criminal case processing. Berliner reports precident for shifting the burden of proof in rape statue in her comments about Washington's rape law.  Here the burden is placed on the defense if/when attempts are made to argue consent (1991:2693 n. 43). In addition to shifting the burden of proof, as Kadish and Schulhofer point out, "in some instances state law may require the defense to bear both burdens" of production and proof (2001:45). Tchen (1983) describes a similar requirement in court decisions. The Supreme Court in Illinois upheld a statute that required "the defendant to prove the existence of the exculpating factor beyond a reasonable doubt" (1552, citing People v. Smith 71 Ill. 2nd 95, 105, 374 N.E. 2nd 472, 476 [1978}, n. 195). Tschen cites other examples of the legality of shifting the burden to the defense. She notes, for instance, that "a common law affirmative defense has existed in Michigan for nearly ten years" (1552).

    Other examples of shifting the burden of proof are easily found. One is seen with self-defense. Here the defense has the burden to prove that force was necessary for protection against imminent harm (Black 1991: 947).  Another example is found when the defense wants to argue discriminatory prosecution, where the burden of proof shifts to the defense to show that harm resulted from the selective prosecution of a criminal statute not typically enforced. In a similar vein, if the defense wants to argue that the defendant's right to a speedy trial was violated, the burden of proof once again shifts to the defense to show prejudice was caused because of this violation. "Defendant bears the burden of showing prejudice. The moving party has the burden of proof" (Michigan Judicial Institute 2001: 109; also see Michigan Judicial Institute 2002: 287). The defense is the moving party in counsel substitution or withdrawal and so bears the burde of proof in Michigan (Michigan Judicial Institute 2001:104).  The list could go on; the point is there is precedence for shifting the burden of proof.

    •  Re (0+ / 0-)
      It's not assumed that a murder victim consented to be murdered.  It's not assumed that a robbery victim consented to give their wallet over to a stranger
      Consenting to being killed happens exceedingly rarely.

      Consenting to have sex happens millions of times per day.

      That's the difference.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Tue Jun 18, 2013 at 05:01:00 AM PDT

      [ Parent ]

      •  So if a person goes to a party, (1+ / 0-)
        Recommended by:
        Richard Lyon

        gets roofie put in their drink, and wakes up abandoned half naked in a nearby alley, the default legal assumption should be that this was consensual sex?  Because that's what it currently is.

        And again, I'm not saying that the default legal assumption should be that it wasn't consensual, as is the case with murder.  I'm saying that the default assumption should be no assumption.  As is the case with an insanity defense, as is the case with a self-defense defense, an "it was consensual" defense should require the defense to back up their claims and have both sides of the argument evaluated on the merit, instead of just taking it at face value, no matter how absurd.  It's the defense's defense, they should have to back it up and have it critically evaluated, just like they would an insanity defense, a self-defense defense, etc.

        •  In your scenario (2+ / 0-)
          Recommended by:
          Sparhawk, soros

          There would be a toxicology report, possibly eye witness report and likely evidence that would confirm she was drugged. Even by current standard "she consented" would not be able to be used in court.

          Please proceed, Governor.

          by USArmyParatrooper on Tue Jun 18, 2013 at 05:54:44 AM PDT

          [ Parent ]

          •  Except it doesn't work like that. (1+ / 0-)
            Recommended by:
            Richard Lyon

            The defense always argues that the person was taking roofies willingly.  Some people do that to get high / get drunk faster.  Prosecution has to prove "beyond a reasonable doubt" that they weren't.

            To put it plainly: if preponderance of evidence is a good enough standard to establish whether something was self defense, it's good enough to establish whether something was consensual.

            •  Your scenario still doesn't work. (1+ / 0-)
              Recommended by:
              Sparhawk

              It doesn't matter if she was drugged or if she drugged herself. Under current law when she's in that state she can NOT legally consent to sex. It's the same if she willingly drinks so much alcohol she passes out.

              Try again.

              Please proceed, Governor.

              by USArmyParatrooper on Tue Jun 18, 2013 at 06:12:52 AM PDT

              [ Parent ]

              •  The person could have consented before (0+ / 0-)

                taking the drugs.  And anyway, the simple fact is that most rape drugs leave the system so fast that they're rarely isolated on toxicology tests anyway.

                And if you don't like that example, try the bottle example below.

          •  Oh, and as for the (0+ / 0-)

            "possible eye witnesses", please, there almost never are eye witnesses to rape.  That's big part of the problem.

            But the real problem is the legal standard.  If tomorrow you went to the police bleeding and reporting being gang-raped by a group of guys while they choked you and inserted a bottle into your rectum, and it went to court, with all of the forensic evidence matching what you said, they would have to prove beyond a reasonable doubt - typically without any witnesses - that you weren't secretly into autoerotic asphyxiation and anal pentration, had a "wild night", then changed your mind.

            Does that sound reasonable to you, that the default assumption is that you're into autoerotic asphyxiation group bottle sex with anonymous guys?

            If the defense wants to put forth a theory, it should be evaluated as any other defense theory, with both sides bearing the burdens and evaluated on a preponderance of evidence standard.  NOT by default simply taken at face value in a manner totally unlike other crimes where the defense claims that the victim consented.

            •  Again, bogus example. (2+ / 0-)
              Recommended by:
              soros, Sparhawk

              I said possible eye witness (or witnesses), and your "almost never" comment is hyperbole. Your scenario of a woman being slipped a roofy would likely take place at a public social event, like a party or bar.

              Signs of struggle and trauma, including (but not limited to) vaginal or anal trauma ARE successfully used and admissible in court. If that evidence was so easily refuted with bogus claims, that wouldn't be the case.

              Please proceed, Governor.

              by USArmyParatrooper on Tue Jun 18, 2013 at 06:22:06 AM PDT

              [ Parent ]

              •  It is absolutely not hyperbole. (0+ / 0-)

                Witnesses to rape itself are exceedingly rare, to the point it's practically a red herring to bring the concept up.  And any person who only saw evidence "suggestive" that a rape took place is not sufficient for a "beyond a reasonable doubt" standard.

                Signs of struggle and trauma, including (but not limited to) vaginal or anal trauma ARE successfully used and admissible in court.
                To which the defense argues that the person likes rough sex.  Then the prosecution has to meet the "beyond a reasonable doubt" standard about the victim's personal sexual preferances on that night, which is almost impossible to meet.
                If that evidence was so easily refuted with bogus claims, that wouldn't be the case.
                Which is precisely why only the tiniest fraction of rapes end up with the perpetrator in prison, in stark contrast to other crimes.  This is the problem you're failing to acknowledge.

                And to reiterate: the beyond a reasonable doubt standard is rarely used to establish consent in criminal law, generally confined to rape cases.  So it's simply a harmonization of law to move to the standard you'd see in other types of defense claims.  Because that's what "she consented" is - a defense claim.

                •  I'm not buying your claim (2+ / 0-)
                  Recommended by:
                  soros, Sparhawk

                  That physical evidence of bodily harm is that easily refuted with ridiculous claims. If it were then hospitals and law enforcement wouldn't go to such lengths to gather forensic evidence of physical trauma.

                  Can you cite which state laws give special requirements for prosecuting rape cases?

                  Please proceed, Governor.

                  by USArmyParatrooper on Tue Jun 18, 2013 at 06:50:36 AM PDT

                  [ Parent ]

                  •  Believe what you want. (1+ / 0-)
                    Recommended by:
                    Tonedevil

                    As a general rule, law enforcement doesn't go to great lengths because most rape cases don't even go to trial because the odds of conviction are so low.  And most rapes aren't even reported for exactly the same reason, victims know that odds are nothing will come of reporting it.  Even the "great lengths" statement is not accurate.  Your standard rape kit doesn't include an immediate test for date rape drugs, for example, just sample collection - but unless analyzed immediately, date rape drugs and their metabolic byproducts typically break down.  And about 40% of rape kits in the US are never even analyzed at all, for the same above reason.

                    As for specific state laws, I recommend reading the report I linked earlier on the subject.

    •  Ridiculous, and epic failure of logic (0+ / 0-)

      So let me get this straight.

      You believe if man and a woman have sexual contact, and the woman claims it was rape, the man should have to prove it was consensual? So now rape accusations should not have to be proven beyond a reasonable doubt?

      There is no argument ever that consent was given for a crime. If a woman has consensual sex, there was no crime in the first place.

      If you give me $20 for gas and then later accuse me of stealing the money, the defense is NOT that you consented to me "stealing" $20.

      Please proceed, Governor.

      by USArmyParatrooper on Tue Jun 18, 2013 at 05:44:52 AM PDT

      [ Parent ]

      •  Are you and the person above you blind? (1+ / 0-)
        Recommended by:
        Richard Lyon

        You write:

        You believe if man and a woman have sexual contact, and the woman claims it was rape, the man should have to prove it was consensual?
        I wrote:
        I'm not even arguing that the presumption should be that if two random people have sex, it should be assumed that no consent was given (as in the case of, say, murder).  
        Please back off the blind knee-jerk reaction and actually read what I write.

        You wrote:

        So now rape accusations should not have to be proven beyond a reasonable doubt?
        I wrote an long post and referenced an entire book by a legal scholar how it's standard for defense arguments to not have to be rebutted beyond a reasonable doubt, and that much more common is the presumption of evidence standard.
        If you give me $20 for gas and then later accuse me of stealing the money, the defense is NOT that you consented to me "stealing" $20.
        The defense is that it was a consensual act on my part.  Which is precisely the defense used in rape cases. Except in your theft example, there would be shared burden on a preponderance of evidence standard to prove or disprove that it was consensual, while in the rape case, the prosecution would bear the full burden and would have to prove beyond a reasonable doubt.  So you have the exact same legal defense being treated wholly differently between crimes.  And this misapplication it is having a profound negative outcome in terms of the rate of successful rape prosecution and the prevalance of rape in society.  Hence it is a problem to be remedied, with an obvious solution.
        •  Corr: (0+ / 0-)

          ** "Preponderance of evidence", not "presumption of evidence".

        •  And just suppose... (0+ / 0-)

          Suppose it cannot be proven either way whether or not the sex was consensual.

          You want the man convicted of rape?

          Please proceed, Governor.

          by USArmyParatrooper on Tue Jun 18, 2013 at 06:10:23 AM PDT

          [ Parent ]

          •  Then it would not meet the preponderance of (0+ / 0-)

            evidence standard, and the accused would be acquitted.  

            •  That's how it works NOW (0+ / 0-)

              Are you saying you support that, or do you want in that case the man to be convicted?

              Please proceed, Governor.

              by USArmyParatrooper on Tue Jun 18, 2013 at 06:23:57 AM PDT

              [ Parent ]

              •  Wrong. (0+ / 0-)

                As it stands now, it has to meet the "beyond a reasonable doubt" standard, not a "preponderance of evidence" standard.

                •  That makes no sense. (0+ / 0-)

                  We start with the status that the accused is innocent until proven guilty beyond a reasonable doubt.

                  If it is known that there was sexual contact, it still must be proved that the person was raped by the accised beyond a reasonable doubt.

                  If it can be proven that it rape then by default it is proven that the sex was not consensual.

                  Please proceed, Governor.

                  by USArmyParatrooper on Tue Jun 18, 2013 at 06:39:06 AM PDT

                  [ Parent ]

                  •  We're both talking about 'proven' (0+ / 0-)

                    The distinction is over the legal standard for the word 'proven' - "beyond a reasonable doubt" or "predominance of evidence".  

                    If it is known that there was sexual contact, it still must be proved that the person was raped by the accised beyond a reasonable doubt.
                    So if I'm a stranger and I walked up and stole $400 out of your wallet when nobody was looking and used it to buy new rims for my car, and then said "he was feeling charitable and gave it to me to buy new rims", should the prosecution have to prove "beyond a reasonable doubt" that you weren't feeling charitable and just gave it to me to buy new rims, or should the court judge that claim on the predominance of evidence"?

                    Virtually everyone would say "predominance of evidence".  And indeed, that is how it's done.  My claim that you "consented" to give me your $400 is just that - a defense claim - and defense claims aren't something that the prosecution is obligated to disprove beyond a reasonable doubt.

                    And just like a consent claim gets a predominance of evidence analysis in a theft trial, a consent claim should get a predominance of evidence analysis in a rape trial.  If a theif's defense of consent is technically possible but unlikely, they get convicted under a predominance of evidence standard.  The same should apply to rapists.

                    •  "predominance of evidence" (0+ / 0-)

                      Never heard if it, looked it up. Couldn't find it. Is that even really a legal term? Do you actually have any legal expertise or are you just winging it?

                      Please proceed, Governor.

                      by USArmyParatrooper on Tue Jun 18, 2013 at 09:36:29 AM PDT

                      [ Parent ]

                      •  Ack (0+ / 0-)

                        Preponderance of evidence, not predominance.

                        I did a search-replace and had the wrong word in there.

                        •  Wow, just wow. (0+ / 0-)

                          A the threshold of a preponderance of evidence is used in civil cases, which is essentially deciding which way the evidence leans.

                          http://en.wikipedia.org/...

                          The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[5] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.
                          So you're advocating that if there is sexual contact between a man and a woman, and the woman claims it was rape, and if a jury decides there's a 51% chance she's telling the truth.....

                          The man should be convicted of rape, lose everything he has, spend years being someone's bitch in prison (they love rapists in prison) and spend the rest of his life as a registered sex offender.

                          Please proceed, Governor.

                          by USArmyParatrooper on Tue Jun 18, 2013 at 06:05:05 PM PDT

                          [ Parent ]

                          •  A preponderance of evidence stanard is *also* (0+ / 0-)

                            used in evaluating defense arguments in criminal cases.  See all of the references cited in my above link.  It's used for arguments of insanity, arguments of self defense, arguments of malicious prosecution, arguments of discriminatory behavior, and on and on down the list.  The defense can't simply make a claim and require that the prosecution prove their claims beyond a shadow of a doubt.

                            The prosecution is obliged to prove the basic facts of a criminal case beyond a shadow of a doubt.  Not defense excuses for said facts.

                          •  Ack after (0+ / 0-)

                            Beyond a reasonable doubt.  Shadow of a doubt is a different standard.

                          •  *sigh* (0+ / 0-)

                            Now I'm mixing up Icelandic and English.  "Ack again", not "aftur" and certainly not "after".  :Þ

                          •  What is your legal expertise? (0+ / 0-)

                            Do you even have any or did you just stay at the holiday Inn Express?

                            First of all, I don't just take your claims at face value when it comes to legal matters, but either way your comparison is silly.

                            A bullet entering someone's body is [i]always[/i] meant to do harm. If you shoot someone you have to explain WHY you shot the person. There is NO possible scenario where shooting someone does not require legal questions to be answered.

                            A penis entering a vagina is NOT always meant to do harm. In fact, the vast majority of the time it is to give pleasure and/or create life. The mere fact that a man put his penis inside a woman's vagina does not require legal justification. Billions of people do it all over the world without requiring explanation to law enforcement or any court.

                            And just so we're clear, you are on record saying you're OK with someone being convicted of rape because a jury thought there was a 51% chance he is guilty?

                            Please proceed, Governor.

                            by USArmyParatrooper on Wed Jun 19, 2013 at 05:55:53 AM PDT

                            [ Parent ]

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