Skip to main content

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

Comment Preferences

  •  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.

                  •  Or... (1+ / 0-)
                    Recommended by:
                    Sparhawk

                    You could just cite the laws if they're in the report. Which laws mandate special requirements for prosecuting rspe cases? Cite the laws.

                    Just for clarification, do you agree or disagree that sexual contact and the woman's accusation (alone) should not be enough for a guilty verdict?

                    Please proceed, Governor.

                    by USArmyParatrooper on Tue Jun 18, 2013 at 09:28:33 AM PDT

                    [ Parent ]

                    •  Of course an accusation alone shouldn't be enough (0+ / 0-)

                      to convict.  But neither should saying "it was consensual" by itself be enough to acquit.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site