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I'm sure there's quite a few people who read this title and had an instinctive negative reaction to it.  Something along the lines of "you're trying to eliminate innocent until proven guilty!" or "You want to undermine the core principle of most of the world's judicial systems!"

Far from it.  Instead, I plan to show that indeed this legal standard is not used in the majority of crimes where a finding is made equivalent to the granting of consent, and indeed, requiring this standard for rape cases is a distorting exception that leads to great and widespread miscarriage of justice.

Let's first address the problem, with the stats.  One quarter of women will be raped at least once in their lifetime.  Approximately 10% of men admit to having committed rape in studies when the word "rape" isn't used, but situations that are rape are described and the subjects are asked if they've done them.  Yet only the tiniest fraction of them will ever end up in jail.  We have a situation where, say, the vast majority of murderers end up in jail, but only a miniscule fraction of rapists.  This is clearly a massive problem - people can rape pretty much with impunity.  What's wrong here?

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, beyond a reasonable doubt. And for this reason, rape is exceedingly difficult to prosecute.

To put it another way: 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 to the event - 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 legal assumption is that you're into autoerotic asphyxiation group bottle sex with anonymous guys?

Now, there are many different legal standards used for different things in the judicial system.  To name some: 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.

In criminal cases, the facts of the case must be established beyond a reasonable doubt.  But the defense's arguments for why the facts are what they are do not, and typically involve shifts in the burden of proof.  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 show that you are.  You can't use a self defense argument and require the state to prove that it wasn't self-defense - you have to present evidence to show that it was, and have it be more convincing than the state's arguments that it wasn't.  "She consented" should in no way be treated any differently than other defense arguments.  The preponderance of evidence standard should require the defense to argue and present evidence that there was consent given, and have it be more convincing than the state's argument that it wasn't.  If the defense wants to argue that the plaintiff was into anonymous gay S&M bottle sex, the state shouldn't be required to find evidence to prove that you weren't "beyond a reasonable doubt", any more than if a random, seemingly rational person saying "it was self defense" should be able to get off easy for whatever crime they want unless the state can prove beyond a reasonable doubt that it wasn't.  "Hey, that mob of elementary school kids was pretty scary in the dark!  I thought they had guns.  Prove that I didn't!"

If I was a stranger reached into your wallet and took out $400 when nobody was looking and bought myself some new rims, and you got me charged with theft, and the prosecution proved beyond a reasonable doubt that it was your money, that I took it, and that I used it to buy new rims, and I argued in court, "Hey, he was feeling bad about me not having new rims, was feeling charitable, and gave me the money to buy rims," this is something that would be extremely hard to be proved beyond a reasonable doubt.  But I would typically be convicted nonetheless, because my defense argument - that you consented to give me the money - would not be evaluated on a reasonable doubt standard, but a preponderance of evidence standard.  

It is a great legal system flaw that in most jurisdictions - not all, but most - the same standard for evaluating consent is not applied in rape cases.

The shifting of the twin burdens of production and proof is indeed widespread in defense arguments.  In "Addressing Rape Reform in Law and Practice", Susan Caringella, Professor of Criminal Justice at WMU and founding chairperson of the Division on Critical Criminology of the American Society of Criminology, writes:

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.

The book is an excellent read on all aspects of current and proposed law on sexual assault, on maintaining the balance between protecting the innocent and the prosecution of the guilty, and so forth.  I strongly recommend at least browsing it at the link above.  Indeed, as Caringella points out, juries already have an established and well-documented record of tending to disbelieve claimants on rape cases as it is.  Applying an unreasonable and legally-inconsistant standard which makes it so that even in wildly implausible sexual situations the assumption should still be that consent was given, is a core fault of rape law in many jurisdictions.

In short, I strongly agree with the following principles:

* There is a massive problem with sexual assault with impunity in most of the world that has gone largely unaddressed.
* There is a massive problem currently in terms of prosecution of rape versus prosecution of other crimes, with the balance on the scales of justice far too far in favor of underprosecution than overprosecution.  This should be remedied.
* There is already a well-documented balance in favor of believing the arguments of defendants in rape cases, regardless of the legal standard applied for evaluating their claims.
* The problem of underprosecution stems from the misapplication of a standard used for establishing the facts of a case to what should be treated as a defense argument ("she consented").
* "Beyond a reasonable doubt" is seldom applied to defense arguments unrelated to basic facts of the case - aka, "I'm insane", "It was self defense", etc.  The defense typically bears the burden to prove their arguments for why the established facts are as they are, with a "preponderance of evidence" standard.

To put it plainly: such a reform is clearly needed, remedies an easily documented inbalance in the scales of justice between prosecution and defense rather than creating one, and leads to consistency between claims of consent between crimes.

I hope that this post will spur healthy debate on the topic.

Originally posted to Rei on Wed Jun 19, 2013 at 05:31 AM PDT.

Also republished by Sluts and Community Spotlight.

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Comment Preferences

  •  Long-standing and long-identified problem (23+ / 0-)

    Every defense lawyer, every victim advocate, every rape crisis center, and every prosecutor's office has been addressing this since at least the mid-1970s (when I was in law school). It still needs addressing, of course, just like all the other issues we thought we had resolved then (like abortion), but it's not like no one has thought about it before.

    One problem is that there are very few other crimes where consent is a defense. Murder-suicide pacts, for example, between elderly spouses -- or assisted suicide -- we don't say "oh, fine, the victim wanted you to shoot her so it's OK, free pass."

    •  Sure consent is a defense. (4+ / 0-)

      If a person consented to what would otherwise be first-degree murder but would instead be a lesser degree or even voluntary manslaughter.  If a person takes someone else's money it's robbery but if they give it away it's not a crime at all.  Same applies to kidnapping.  Name a crime, consent is a major portion of its degree or criminality.

      •  Lack of consent is an element of the crime (5+ / 0-)

        So needs to be proven along with the rest of it.  I'm not sure that presuming criminal elements is valid although the Illinois Supreme Court seems to differ

        Touch all that arises with a spirit of compassion. An activist seeks to change opinion.

        by Mindful Nature on Wed Jun 19, 2013 at 11:05:42 AM PDT

        [ Parent ]

        •  actually consent (0+ / 0-)

          is usually a defense.

          however, it's deeply wrapped up in rape because
          the other elements tend to be predicated on lack of consent.

          •  Wrong (1+ / 0-)
            Recommended by:
            chrismorgan

            The common-law definition definition of rate is: (1) Carnal knowledge (2) by a man (3) of a woman (4) not his wife (5) without consent.

            And it has been retained as an element in modern criminal law. E.g.,
            Michigan:

            750.520d Criminal sexual conduct in the third degree; felony.

            (1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exist:

            (a) That other person is at least 13 years of age and under 16 years of age.

            (b) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v).

            Federal:
            18 USC § 2241 - Aggravated sexual abuse
            (a) By Force or Threat.— Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly causes another person to engage in a sexual act—
            (1) by using force against that other person; or
            (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping;
            or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.
            (b) By Other Means.— Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly—
            (1) renders another person unconscious and thereby engages in a sexual act with that other person; or
            (2) administers to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby—
            (A) substantially impairs the ability of that other person to appraise or control conduct; and
            (B) engages in a sexual act with that other person;
            or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.
            •  actually there are 3 approaches (1+ / 0-)
              Recommended by:
              VClib

              1) Common Law

              2) Statute Law

              3) Model Penal code.

              ( Force implies lack of consent, but, what happens when
              someone like rough sex, hitting, slapping,etc) but
              actually did consent?

              Really, it's a long discussion and not condensable in a little comment box.

      •  Unforunately (2+ / 0-)
        Recommended by:
        HiBob, chrismorgan

        Consent is not a defense to first-degree murder.  It may persuade jurors to annul charges and prosecutors to seek lesser sentences, but it is not a defense.  There's a case where a terminally ill person convinced his son or daughter - I forget now - to pull the plug.  The state brought first degree murder charges, and after a full set of appeals, the charges were upheld.  There's no defense or mitigation to murder from consent, at least until assisted-suicide laws get passed.

        As to other crimes, usually consent, or its equivalent, is an element of the offense to be proven by the state, not an affirmative defense to be raised by the defendant.  I only know New York law, but:

        Kidnapping requires restraint, which is specifically defined as

        "Restrain" means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the  restriction is unlawful.  A person is so moved or confined "without consent" when such is accomplished by (a) physical force, intimidation or deception, or (b)
        [when the person is a child].
        The prosecution is responsible to show a lack of consent, not the defendant.

        Larceny gets:

        A  person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.
        A wrongful taking is one without consent.  The defendant does not have to prove that the taking was consensual, the state needs to prove it was wrongful.

        Trespassing, requires a person to enter or stay on property unlawfully, defined as do so when one

        is not licensed or privileged to do so.
        Another consent element.

        Assault is the exception, where consent is an affirmative defense, because it requires only an injury.  I'm not sure how you would craft a rape statute without consent as an element: what are the other elements?

        I think the issue here is that given a pervasive rape culture, the liberal justice system we're used to simply fails.  Jurors, judges, and prosecutors will ignore the credibility of a rape victim, and can't be forced to, and will swiftly side with the perpetrator.  We act as though "he said, she said" is some intractable problem, but it never has been.  Criminals are likelier to deny their crimes than victims are to fabricate them.  

        The testimony of the complaining witness, without any burden shifting, should be enough, and defendants are amply protected by cross-examination.  Acquittals come because jurors will disbelieve a credible witness only when the charge is rape.

        •  Murder, etc (1+ / 0-)
          Recommended by:
          radical simplicity
          Consent is not a defense to first-degree murder.
          In general it is at least considered a major mitgating standard in sentencing.  And often it does change the classification.  It's not unusual for jurisdictions to classify assisted suicide as manslaughter, or even outright legal (in the US: Oregon, Washington, Vermont).
          Kidnapping requires restraint
          Precisely.  If the person consented, it wasn't restraint, and it wasn't a crime.  Meaning they would be acquitted.  
          The prosecution is responsible to show a lack of consent, not the defendant.
          False.  Point me to a single case where the defendant made a claim that the victim came willingly and the prosecution bore the burdens of disproving it and had to meet such a burden of proof in doing so.
          Larceny .. A wrongful taking is one without consent.  
          Precisely.  Consent is an defence to larceny.
          The defendant does not have to prove that the taking was consensual, the state needs to prove it was wrongful.
          Again, a challenge to demonstrate this claim of yours.  I've referenced my argument with a book from a professor of criminal justice.

          And so forth.

          And while we're at it, show me where a subject claimed "I'm insane" and the state had to prove that they're not.  Show me where a subject said "It was self defense" and the state had to show that they aren't.  "Sorry, your honor, but it was dark and I really thought that mob of kindergarteners had guns.  Prove that I didn't!"  Defense arguments are distinct from the facts of the case.  They're a proposed interpretation of the facts of the case, and the prosecution doesn't bear the burden of proving them beyond a reasonable doubt.

          •  Rei, with no offense to you (2+ / 0-)
            Recommended by:
            Pi Li, Dr Swig Mcjigger

            I've seen consent used to get out of theft charges.  All the individual being accused has to do is say "(s)he gave it to me" or "said I could borrow it".  Even if it's not credible, law enforcement won't even do any more than file a report unless there's some evidence that there was no such agreement.  Not saying it's right or reasonable, just saying I've seen it happen.

            I appreciate your low standards ;)

            by Cameron Hoppe on Wed Jun 19, 2013 at 08:26:42 PM PDT

            [ Parent ]

            •  If a preponderance of evidence... (1+ / 0-)
              Recommended by:
              Em

              suggests that it was willingly given, then they should get off with that claim.  Just like if a preponderance of evidence suggests that consent to sexual activity was given.

              Now, if you want to talk about underenforcement of the law in general, that's definitely a conversation to have.  Your post was not about trials, but whether police try to advance the report to the level of criminal charges.  But I think it's beyond question that there is extreme underenforcement in the case of rape.

              •  You are confusing defense with element and affirma (2+ / 0-)
                Recommended by:
                jrooth, USArmyParatrooper

                tive defense.  An element is part of what the state must both produce some evidence on and persuade BYRD on.  That evidence can be from any source and of any strength bc it is the juries unique duty to decide credibility and weight.  

                A defense means the defendant must produce some evidence but the state still has the burden of persuasion BYRD.  And, again, the 'evidence produced' and thus raising the defense (i.e., triggering the State's burden to disprove BYRD) may be from any source and of any strength.

                An affirmative defense is when the defense has both the burden of producing some evidence and persuading (but only by preponderance).

                The allocation of burden thusly expresses the basic foundation principle in our system that it is better that guilty go free than innocent be wrongfully convicted.  And therein lies the fundamental flaw in your diary: you turn this on its head for your one, 'special' crime.  Why not other crimes?  Why not all crimes?  You may think rape is a uniquely egregious offense, but I guarantee you that many victims of other crimes think the same of theirs.  This balance was struck as the result of 1000s of years of empirical experience with what produces the fairest overall results and respects individual liberty (bc it is the state not the victim that prosecutes and incarcerates or executes, every criminal case is inherently and always also a case testing the relationship bt the power of the state and freedom of the individual).

                Also, you make a fundamental error in your basic premise: except in an abstract sense, consent is rarely an element of rape.  Rape is an assaultive crime.  All assaultive crimes lack consent as an element (tho it may be a defense) bc the use of force is always assumed to negate consent.  This is why there is also no consent element for murder, robbery, and assault itself.  (Indeed, there are many cases where consent is not even a defense to assaultive offenses, e.g., all assaults of a child or incapacitated person - sexual or otherwise, statutory rape, etc.)

        •  likelier (0+ / 0-)
          We act as though "he said, she said" is some intractable problem, but it never has been.  Criminals are likelier to deny their crimes than victims are to fabricate them.
          How do we reconcile "likelier" with "beyond reasonable doubt"? Should jurors in criminal cases generally be instructed that "beyond reasonable doubt" is equivalent to "Likely"?
      •  More of this nonsense? (1+ / 0-)
        Recommended by:
        chrismorgan

        Preponderance of Evidence only requires a 51% chance of guilt.

        If a man and woman have sexual content, and based on the (flimsy or lack of) evidence a jury decides there's a 51% chance it was not consensual, that is the entire case.  

        The man will now spend years in prison being someone's bitch, be ostracized by his friends and family, lose his job and about everything else in his life, and spend the rest of his life as a registered sex offender.

        All on a jury deciding there's a 51% chance the sex was against her will.

        Are you actually suggesting that's right? Really?  

        Please proceed, Governor.

        by USArmyParatrooper on Wed Jun 19, 2013 at 08:59:53 PM PDT

        [ Parent ]

        •  Just make it the same as any other violent crime (0+ / 0-)

          If you beat the shit out of me, and there's physical evidence of that - injuries to me, bruises on your fists, my blood spattered on your clothes - and you do so without sexually assaulting me, then you're probably going to prison.  You beat the hell out of me, and saying I wanted it is not going to get you very far.  If, however, you beat the shit out of me and rape me, you can argue that I wanted it, and have a very good chance of getting away with it.

          Are you actually suggesting that's right?  Really?

          "And the President of the United States - would be seated right here. I would be here. And he would be here. I would turn - and there he’d be. I could pet ‘im." - Lewis Black

          by libdevil on Thu Jun 20, 2013 at 12:21:47 AM PDT

          [ Parent ]

          •  It is neither right.... (1+ / 0-)
            Recommended by:
            VClib

            nor is it reality. Physical trauma IS used as physical evidence in rape cases and it's not so easily dismissed. The threshold is guilty beyond a reasonable doubt, which is not the same as no doubt at all.

            http://legal-dictionary.thefreedictionary.com/...

            The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented.
            In your scenario "she wanted it" would not rise to the level of reasonable doubt.

            I also noticed you didn't answer the question. Are you OK with a someone being convicted of rape based on the very low threshold of preponderance of evidence, being merely a 51% chance of guilt?

            Please proceed, Governor.

            by USArmyParatrooper on Thu Jun 20, 2013 at 12:58:41 AM PDT

            [ Parent ]

    •  Actually, many crimes do. Assault does. If you (2+ / 0-)
      Recommended by:
      jrooth, scott5js

      consent to someone hitting you, it's no longer an assault.  However, there's no assumption that you consented to be hit; in fact, there's an assumption that you did not consent.

      OTOH, I'm not sure that we want to create an assumption that a sexual act is not consensual.  It makes sense to never want to be hit; it doesn't make sense that someone would never want to have sex.

      "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

      by gustynpip on Wed Jun 19, 2013 at 11:10:43 AM PDT

      [ Parent ]

      •  Even when the plaintif calls the police, or (4+ / 0-)

        goes to the hospital and says consent was not given?
        Even when the victim was incapacitated, and had no reasonable means to communicate that consent was not being given?

        I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

        by mungley on Wed Jun 19, 2013 at 11:38:22 AM PDT

        [ Parent ]

        •  Obviously those are strong indicators (1+ / 0-)
          Recommended by:
          Sparhawk

          of a lack of consent.

          “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

          by jrooth on Wed Jun 19, 2013 at 11:40:58 AM PDT

          [ Parent ]

        •  You think victims don't lie? I have personal exper (0+ / 0-)

          ience in a number of cases where they admitted under oath they did and that was corroborated by other evidence having nothing to do with the defense or defendant.

          Rape has the second highest numbers of exonerations by DNA (murder being the first and a number of those being rape-murders).  Indeed, at least one study found that 1/4 of all DNA exonerations in rape case were cases where the victim lied about it. See, Gross, et. al., Exonerations in the United States 1989 Through 2003, THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY(2005) at 528-29.  

          How many innocent people are you ok with imprisoning to get to what you believe is a 'proper' number of convictions for your particular 'special' crime, so special it must have its own unique and uniquely lower burden of proof?

      •  Consent is only a defense to assault (2+ / 0-)
        Recommended by:
        Rei, gustynpip

        It is not an element.  Causing an injury is an assault.  That's the crime.  The defendant can raise consent as a defense, but it is not a prosecution burden.

        Most other crimes have non-consent as an element.  Theft requires a wrongful taking, trespassing requires remaining without license, etc.

    •  consent is a defense to lots of crimes (2+ / 0-)
      Recommended by:
      Sparhawk, Rei

      1) Assault: The Victim voluntarily engaged in a fisticuffs match.

      2) Car theft: They said "Take her out for a spin", so,
      i went out on the interstate and drove for an afternoon.

      3) Breaking and Entering : They said I could stay at their cabin anytime.  

      4) Trespass : ....

      and in many of these cases it's also blurry but, these are
      usually left to the civil courts to figure out.

  •  Re (9+ / 0-)
    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
    People never or almost never consent to be killed.

    People consent to sex 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 Wed Jun 19, 2013 at 08:55:01 AM PDT

    •  rape shield laws (0+ / 0-)

      usually prevent the victims past from coming in as
      opinion, reputation or character evidence.

    •  People do not concede to (3+ / 0-)
      Recommended by:
      OldDragon, splashy, Dogs are fuzzy

      unlikely sexual circumstances any more than people consent to give total strangers their money and whatnot.  Yet the former consent has to be proven beyond a reasonable doubt while the latter has to be proven only by the preponderance of the evidence.  How is this difference justifiable?

      •  Consent does not need to be proven (1+ / 0-)
        Recommended by:
        Sparhawk

        beyond a reasonable doubt.

        Guilt does.

        The purpose of a criminal trial is not to validate the question of the alleged victim's consent.

        It is to determine the guilt or innocence of someone alleged of a serious criminal offense.

        Non enim propter gloriam, diuicias aut honores pugnamus set propter libertatem solummodo quam Nemo bonus nisi simul cum vita amittit. -Declaration of Arbroath

        by Robobagpiper on Wed Jun 19, 2013 at 10:37:56 AM PDT

        [ Parent ]

      •  Unlikely is a pretty weak standard (9+ / 0-)

        to put a person in jail for decades.

        Lack of consent is an element of the crime.  The elements of the crime (all of them) must be proven beyond a reasonable doubt.  The standard you are proposing sounds great until you start dealing with the real world.  Your standard will have innocent people sent to hellish prisons.

        Sorry, the law requiring proof beyond a reasonable doubt needs to be strengthened not weakened, there is already a presumption that most people have, that if you are charged with something you are probably guilty.

        I have great sympathy for the victims of this horrid act, but first you have to prove the case.

        . On ne gagne que les combats que l'on mène

        by NearlyNormal on Wed Jun 19, 2013 at 10:49:39 AM PDT

        [ Parent ]

        •  You're missing the double standard. (6+ / 0-)

          In rape cases the victim is required to prove that he or she did not want to be raped.

          Let's say you got drunk and passed out in a bar.
          When you awoke you found that your wallet had been stolen.
          In court would you be required to prove that you did not invite the perpetrator to steal your wallet?

          In the exact same case, if you were raped, you would be required to prove that you indeed did not invite the perpetrator to rape you.

          That's a double standard.

          I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

          by mungley on Wed Jun 19, 2013 at 11:46:12 AM PDT

          [ Parent ]

          •  No its not. You are confusing different things (6+ / 0-)

            The prosecution would indeed be required to prove that you didn't have permission to take the wallet.  It would be pretty easy, and he or she would likely be able to do it with a single question at the trial.  In fact, under your scenario, if you established that you were drunk and passed out at the bar it would be pretty easy to show lack of consent.  But, the lack of consent is an element of rape, it has to be proven beyond a reasonable doubt like any other element in any other crime.

            By your very terms you show that you actually know the answer, you bold "want" in that initial sentence, but its the "wanting" that determines whether it is rape or not, and that has to be proven, it can't be presumed.

            If you were passed out in a bar and someone took your wallet and was apprehended the questioning would go something like this:

            Prosecutor" "And Mr. Smith, did you ever give permission to Mr. Jones to take your wallet.

            Mr. Smith: No I did not.

            That would be the end of it in all likelihood, but conceivably Mr. Jones could take the stand in his defense and say

            Defense Attorney:  Did Mr. Smith give you permission to take his wallet?

            Mr. Jones:  Yes, sort of, he was stumbling drunk and kept trying to buy more booze but he was cut off, he kept handing me money and asking me to buy it for him but I wouldn't.  Finally I told him I'd call him a cab and take him home if he paid for the ride, he just handed me his wallet and passed out on my shoulder.  Suddenly he woke up while we were waiting for the cab and started yelling that his wallet was gone.  I said, "I've got it" and he started calling me a thief and some guy grabbed me and said, "look, it Mr. Smith's wallet".

            The Prosecutor can put on rebuttal evidence, he can recall Mr. Smith, he can put on the bartender and he can call to the stand the guy that grabbed Mr. Jones and get them to give testimony regarding the incident.

            Now the jury has to find, beyond a reasonable doubt whether or not there was consent.

            . On ne gagne que les combats que l'on mène

            by NearlyNormal on Wed Jun 19, 2013 at 12:25:55 PM PDT

            [ Parent ]

            •  Your fantasy scenario fits your argument very (1+ / 0-)
              Recommended by:
              splashy

              nicely.

              But it fails to include the presumption of consent as is discussed with rape in the diary.

              There is no presumption of consent in your scenario. The defendant has to go into a highly contrived story just to make the theft of a wallet seem justifiable.

              Plus is makes no sense in the case of rape.

              I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

              by mungley on Wed Jun 19, 2013 at 12:42:19 PM PDT

              [ Parent ]

              •  Its not a fantasy (7+ / 0-)

                Its a loose approximation of a trial I did.  Drunk people do stupid stuff.  One is presumed innocent, then the prosecution has to prove every element, including consent, beyond a reasonable doubt.

                . On ne gagne que les combats que l'on mène

                by NearlyNormal on Wed Jun 19, 2013 at 01:02:36 PM PDT

                [ Parent ]

                •  It's a poor example of presumption of consent. (0+ / 0-)

                  Again, the defendant had to go to great lengths to prove that he was given the wallet.

                  In the case of rape Mr. Smith would have to prove that he did not intend to give the wallet to Mr. Jones before they even got to the part about Mr. Jones having the wallet.

                  How, by the way, did this go to trial? Your Mr. Jones somehow had possession of the wallet, but made no attempt to demonstrate that it was forced on him by the drunk guy?
                  Who grabbed Mr Jones?
                  Did that person not see the whole interaction between Mr. Jones and Mr. Smith? How was that not cleared up by conversations between the bar staff and the patrons? Who called the cab?
                  No one noticed Mr Smith passed out on Mr Jones?
                  Mr Jones didn't say, "I have your wallet right here"?

                  I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                  by mungley on Wed Jun 19, 2013 at 03:28:09 PM PDT

                  [ Parent ]

                  •  Mungley, as I said its an approximation (2+ / 0-)
                    Recommended by:
                    mungley, Sparhawk

                    What you seem to be missing is that its the trial itself that has to clear up disputes.  Any case that gets cleared up doesn't go to trial.  Its not a presumption of consent, exactly, its a presumption of innocence that requires proof of all the elements, one of which is lack of consent.  I don't see any way around that unless you have a presumption of rape on each sex case and then you have to prove consent.

                    . On ne gagne que les combats que l'on mène

                    by NearlyNormal on Wed Jun 19, 2013 at 07:10:33 PM PDT

                    [ Parent ]

                    •  I think you have an accusation, and a defense. (0+ / 0-)

                      The diary claims that there is a presumption of consent that the state has to overcome.

                      The defendant can use any defense he or she chooses.

                      In all other crimes a defendant has to show a reasonable doubt that he or she committed the crime.

                      We are talking about some specific things here:
                      1 - There was sex.
                      2 - The defendant was a participant.
                      3 - The defendant claims that the victim invited the sexual contact.

                      So, we are down to a distinction similar to murder vs manslaughter.  We events did indeed transpire and the defendant did indeed commit the act.

                      Why is it unreasonable to require the defendant to prove that he understood there was consent given? If you are a consenting adult and you can not demonstrate beyond a reasonable doubt that you thought the person with whom you had sex wanted to do so, then you have probably committed rape.

                      Instead the victim is being required to prove that consent was withheld.

                      I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                      by mungley on Wed Jun 19, 2013 at 07:42:09 PM PDT

                      [ Parent ]

                      •  What nonsense. (2+ / 0-)
                        Recommended by:
                        Robobagpiper, Sparhawk
                        Why is it unreasonable to require the defendant to prove that he understood there was consent given? If you are a consenting adult and you can not demonstrate beyond a reasonable doubt that you thought the person with whom you had sex wanted to do so, then you have probably committed rape.
                        For starters having to prove consent means having to prove your innocence.

                        Second, it's preposterous to assume the lack of ability to PROVE sex was consensual means it was "probably rape." You meet a girl (or guy), the two of you flirt, one thing leads to another and you have consensual sex with each other. How on earth can you PROVE a person consented?

                        Please proceed, Governor.

                        by USArmyParatrooper on Wed Jun 19, 2013 at 09:08:00 PM PDT

                        [ Parent ]

                        •  Because you discussed having sex before you did (0+ / 0-)

                          it?
                          Just like most normal couples do.

                          I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                          by mungley on Wed Jun 19, 2013 at 09:29:59 PM PDT

                          [ Parent ]

                          •  much communication is non-verbal. (3+ / 0-)

                            . On ne gagne que les combats que l'on mène

                            by NearlyNormal on Wed Jun 19, 2013 at 09:35:11 PM PDT

                            [ Parent ]

                          •  Let's try this. If you're going to have sex with (0+ / 0-)

                            someone for the first time, or if you are in a uncertain relationship, make damned sure he's conscious and agrees to sex before you proceed.  Then you won't find yourself having to prove your innocence.

                            I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                            by mungley on Wed Jun 19, 2013 at 10:26:48 PM PDT

                            [ Parent ]

                          •  What an epic fail of logic. (2+ / 0-)
                            Recommended by:
                            AdamSelene, Sparhawk
                            make damned sure he's conscious and agrees to sex before you proceed.  Then you won't find yourself having to prove your innocence.
                            Because no innocent person is ever accused?

                            Please proceed, Governor.

                            by USArmyParatrooper on Wed Jun 19, 2013 at 10:32:03 PM PDT

                            [ Parent ]

                          •  No. Precisely because you don't know the (0+ / 0-)

                            person with whom you are engaging in an intimate act.

                            Would you rather answer an accusation with, "We had a conversation about sex, and he agreed we should do it."
                            or
                            "He was very cuddly before he passed out, so I assumed it was ok."

                            Or if NearlyNormal is your lawyer have him say that for you because he would not have you go on the stand.

                            I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                            by mungley on Wed Jun 19, 2013 at 10:50:31 PM PDT

                            [ Parent ]

                          •  You're not making sense. (2+ / 0-)
                            Recommended by:
                            NearlyNormal, Sparhawk

                            A verbal agreement is no easier to prove than consensual sex that isn't spoken.

                            Who said anything about passing out? We're discussing the absurdity in having to prove [i]consensual[/i] sex. If the person is passed out it's not consensual.

                            So again, please answer the questions.

                            1. How do you PROVE the person said "yes"?

                            2. How do you PROVE the sex was consensual and reciprocated?

                            Please proceed, Governor.

                            by USArmyParatrooper on Wed Jun 19, 2013 at 11:07:33 PM PDT

                            [ Parent ]

                          •  I am saying that you have a better chance of (0+ / 0-)

                            disproving withheld consent if you have a verbal agreement.

                            As you and other commenters have insisted; you don't need to prove consent, you need to demonstrate a reasonable doubt about the (in your scenario, false) accusations made against you.

                            The point of the diary is still that consent is assumed in rape cases.

                            Changing that would not change the ability to defend oneself.

                            I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                            by mungley on Wed Jun 19, 2013 at 11:31:27 PM PDT

                            [ Parent ]

                          •  No, you do not. (2+ / 0-)
                            Recommended by:
                            NearlyNormal, Sparhawk
                            I am saying that you have a better chance of disproving withheld consent if you have a verbal agreement.
                            A verbal agreement would be impossible to prove, so how does that your case?
                            The point of the diary is still that consent is assumed in rape cases. Changing that would not change the ability to defend oneself.
                            Of course it would! As per the Constitution all elements of a crime must be proven beyond a reasonable doubt. In the case of rape, the lack of consent is a necessary element.

                            How can you possibly argue that removing the threshold of 'beyond a reasonable doubt' for the sole determining element would NOT make a case harder to defend?

                            Please proceed, Governor.

                            by USArmyParatrooper on Wed Jun 19, 2013 at 11:38:53 PM PDT

                            [ Parent ]

                          •  You misunderstand the concept. (0+ / 0-)

                            It's clearly outlined in the diary.

                            I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                            by mungley on Wed Jun 19, 2013 at 11:43:52 PM PDT

                            [ Parent ]

                          •  I understood it perfectly. (1+ / 0-)
                            Recommended by:
                            Sparhawk

                            You're ducking and dodging, and have multiple times failed to answer direct questions.

                            You said:

                            If you are a consenting adult and you can not demonstrate beyond a reasonable doubt that you thought the person with whom you had sex wanted to do so, then you have probably committed rape.
                            Horseshit.

                            Give me an example of how you could prove the sex was consensual under normal circumstances, i.e. without video tape or an eye witness.

                            Please proceed, Governor.

                            by USArmyParatrooper on Thu Jun 20, 2013 at 12:02:36 AM PDT

                            [ Parent ]

                          •  No. You don't understand the concept. (0+ / 0-)

                            Your question is invalid.

                            I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                            by mungley on Thu Jun 20, 2013 at 06:57:03 AM PDT

                            [ Parent ]

                          •  How does THAT work exactly ? (1+ / 0-)
                            Recommended by:
                            Sparhawk

                            You say "consent"
                            I say "none"

                            You say "we agreed"
                            I say "we didn't"

                            You say "ask my wingman"
                            I say "he wasn't there."

                            Now what should happen?

                          •  And how does no verbal communication (0+ / 0-)

                            help that scenario in anyway?

                            If the alleged victim says he or she said "no" you still are stuck in the same situation.

                            I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                            by mungley on Thu Jun 20, 2013 at 07:01:01 AM PDT

                            [ Parent ]

                          •  That's pretty much what I'm saying ... (0+ / 0-)

                            In a Shesaid/Hesaid any kind of justice is difficult at best -- even assuming good faith and objectivity.

                            In American practice there's basically two ways ...

                            Due process with presumption of innocence.
                            and
                            Lynch Law with presumption of guilt.

                            I don't see a lot of middle ground ... not in my own imagination -- not in this diary.

                            And considering that this the United States, where we have more people under lock and key than Red China  

                            Maybe making life easier for Prosecutors ISN'T the absolute best way of going about things.

                          •  Well, assuming the lack of any physical (1+ / 0-)
                            Recommended by:
                            Sparhawk

                            evidence, and assuming that the jury finds you and I equally credible, then there is a not guilty verdict rendered since the State has failed to prove an element of the crime.

                            . On ne gagne que les combats que l'on mène

                            by NearlyNormal on Thu Jun 20, 2013 at 08:20:27 AM PDT

                            [ Parent ]

                          •  Please tell me you're joking? (1+ / 0-)
                            Recommended by:
                            Sparhawk

                            1. How do you PROVE you had that discussion?

                            2. It doesn't usually happen that way!

                            Not that I'm bragging, but I've had a lot of sex over the years.

                            Rarely is consent actually verbalized, "Do you want to have sex?" It certainly can be and sometimes is established verbally, but that's beside the point.

                            Sex is often, and would even say usually established by a series of kissing and touching that is escalating reciprocated. Betting turns to kissing turns to foreplay turns to bow-chicka-bow-bow.

                            Please proceed, Governor.

                            by USArmyParatrooper on Wed Jun 19, 2013 at 09:42:15 PM PDT

                            [ Parent ]

                          •  Typo: not "betting"..."petting" (0+ / 0-)

                            A funny typo at that.

                            Please proceed, Governor.

                            by USArmyParatrooper on Wed Jun 19, 2013 at 09:43:13 PM PDT

                            [ Parent ]

                          •  You mean cause some women just "rape easy"? (0+ / 1-)
                            Recommended by:
                            Hidden by:
                            Sparhawk

                            I get it.

                            Try living in the 21st century for a while.

                            I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                            by mungley on Wed Jun 19, 2013 at 10:23:26 PM PDT

                            [ Parent ]

                          •  Totally uncalled for. (2+ / 0-)
                            Recommended by:
                            Sparhawk, NearlyNormal

                            You should be ashamed of yourself, but I suspect you're completely incapable of such a thing.

                            Please proceed, Governor.

                            by USArmyParatrooper on Wed Jun 19, 2013 at 10:29:41 PM PDT

                            [ Parent ]

                          •  I apologize. (0+ / 0-)

                            I was not making an accusation against you, I was pointing out the last person who made a similar comment to yours.

                            I'm sorry for the offense.

                            I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                            by mungley on Wed Jun 19, 2013 at 10:42:24 PM PDT

                            [ Parent ]

                      •  No, the state needs to prove it (0+ / 0-)

                        because he is presumed innocent.  You are not required to prove anything since you are presumed innocent.  Its the State that does the prosecution and the defendant may remain silent and not put on any defense at all.  If he does not the state still must prove every element of the case beyond a reasonable doubt.  There is no other way to do it.

                        I understand that you don't like it, but the whole criminal law system is built on this bulwark.  

                        . On ne gagne que les combats que l'on mène

                        by NearlyNormal on Wed Jun 19, 2013 at 09:33:49 PM PDT

                        [ Parent ]

                      •  I think I see where the confusion lies (0+ / 0-)
                        In all other crimes a defendant has to show a reasonable doubt that he or she committed the crime.
                        You never have to show reasonable doubt, you may decide to provide evidence that you hope gives the jury reasonable doubt, but you are not required to show anything.  A fairly common occurrence is to have the case dismissed at the end of the prosecution's case because they didn't make their burden of proof beyond a reasonable doubt, and the defense doesn't call a witness at all.  It happens most in court trials but if the State can't prove all the elements beyond a reasonable doubt, and lack of consent is an element in a rape case, then the trial is over and a not-guilty has to be entered.

                        Its all on the State to make the case, the Defendant has an opportunity to lay his/her case out once the prosecution rests, but the defense has no burden whatsoever.

                        . On ne gagne que les combats que l'on mène

                        by NearlyNormal on Thu Jun 20, 2013 at 04:04:28 PM PDT

                        [ Parent ]

            •  Except that it's not. (2+ / 0-)
              Recommended by:
              mungley, Cassandra Waites
              The prosecution would indeed be required to prove that you didn't have permission to take the wallet.  It would be pretty easy, and he or she would likely be able to do it with a single question at the trial.

              ...

              Prosecutor" "And Mr. Smith, did you ever give permission to Mr. Jones to take your wallet.

              Mr. Smith: No I did not.

              That would be the end of it in all likelihood

              So all you have to say is "No I did not" and that's now an established fact at the trial?  Great!  So can a rape victim say "they didn't have permission to have sex with me" and have that be treated like an established fact at the trial?

              This is the difference.  No matter how implausible the rape scenario, the prosecution bears the full burden to prove beyond a reasonable doubt that there was no consent.  For other crimes, claiming "permission" is simply treated as a defense theory and there is a joint burden or a purely defense burden for production and proof and a different standard.

              The situation that you describe for a stolen wallet, with a joint burden and defense claims about "consent" is precisely what I argue - and what the above book argues - should be the standard for rape cases as well.

              In fact, under your scenario, if you established that you were drunk and passed out at the bar it would be pretty easy to show lack of consent.
              And hey, if you had video cameras everyhwere on the planet you could show that you were saying no or struggling, and if you had a a neural implant in your brain you could show that you didn't want it.  

              Now let's rejoin in the real world where this sort of proof is rarely available.  Where victims are generally too confused or in shock to report immediately.  Where alcohol and date rape drugs leave the system quickly.  Where witnesses to much more than circumstancial evidence are rare.  

              •  I don't know what more to add (4+ / 0-)
                Recommended by:
                Sparhawk, Robobagpiper, Pi Li, HiBob

                If you have a case where someone is drunk to the point of being passed out and that is proven, its a pretty feeble prosecutor that isn't able to show lack of consent.

                The idea that we should do away with the protection of the innocent because you think its too difficult sometimes is misguided.  There is a very good reason why consent is an element of the crime and equally good reasons why all elements have to be proven beyond a reasonable doubt.  Lots of people get drunk together and have sex, its happened throughout history, later some wish they hadn't.  Its separating those from the ones that there was no consent  that can be the tricky thing, but the elements must be there and they must be proven beyond a reasonable doubt.

                Thanks.

                . On ne gagne que les combats que l'on mène

                by NearlyNormal on Wed Jun 19, 2013 at 01:08:49 PM PDT

                [ Parent ]

              •  The problem (4+ / 0-)
                Recommended by:
                mungley, Rei, LaraJones, Cassandra Waites

                Is that juries don't treat "They didn't have permission to have sex with me" right.  That should be extraordinarily compelling evidence of non-consent.  It is not a statement that people make under penalty of perjury, in a courtroom, intending to settle some petty grudge.  

                The problem comes from a rape culture which endlessly promotes the myth that women frequently lie about being raped.

                •  Re (2+ / 0-)
                  Recommended by:
                  NearlyNormal, AdamSelene
                   It is not a statement that people make under penalty of perjury, in a courtroom, intending to settle some petty grudge
                  Then why are there numerous examples of people doing precisely that? Just google "false rape allegation" to see numerous examples of this kind of thing, and often for petty or trivial reasons.

                  I am not asserting anything here other than to poke holes in your ridiculous theory that we should mostly throw people in jail on a complainant's testimony without other corroboration

                  (-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 Wed Jun 19, 2013 at 02:23:05 PM PDT

                  [ Parent ]

                  •  I didn't say allegation (0+ / 0-)

                    I said a sworn courtroom statement.  This is not an accusation.  This is not an innuendo.  This is a claim made under penalty of perjury, in a courtroom, subject to cross-examination.

                    If you're not willing to convict people based on the testimony of a single witness, you're not going to be very happy with an awful lot of criminal convictions.

                    •  Re (3+ / 0-)
                      Recommended by:
                      NearlyNormal, HiBob, VClib
                      False testimony leads to dismissal of Coolbaugh sexual assault case
                      February 04, 2009 - 9:41 AM
                      Five young men have been vindicated of sexual assault charges after two teenage girls admitted to testifying falsely under oath, the District Attorney’s Office said today.
                      I just found this thing in 5 seconds of Googling. You just assured me that lying about rape under oath never happens.

                      (-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 Wed Jun 19, 2013 at 02:38:30 PM PDT

                      [ Parent ]

                      •  I didn't say it never happens (0+ / 0-)

                        I said that the testimony is extremely credible when made to a jury in a courtroom.

                        A single case of false testimony doesn't disprove that, especially since that case apparently never went to trial, and the false statements, while sworn, were not in court.

                        If I threaten to kill you in a dark alley and demand your wallet, but you bolt and get to a cop, would you acquit me for lack of evidence?

                  •  Studies on false reports of rape are varied, (2+ / 0-)
                    Recommended by:
                    Cassandra Waites, Dogs are fuzzy

                    but the median rate is about 10%.  Well, guess what?  About 10% of insurance claims (numbers vary depending on reports and types of crimes) are fake.  About 10% of car theft rates are fake.  On and on down the line.  But once again, people focus only on false rape reports.  Why?

                    Because women claiming rape are clearly just lying sluts, that's why, right?   At least that's the clear perception that society keeps sending over and over in about 100 different ways.

                    And there's clearly a problem.  10% of men admit to researchers to having raped and about 25% of women will get raped in their lives.  A quick 30-second Google search didn't turn up the number of US convictions per year, but one revealed that in the UK it's about 800.  The UK population is 63 million.   Say 21 million men, so 2.1 million rapists.  Multiply 800 by the average UK male lifespan - I'll guess 78 - and that's 62,000 convictions during the 2.1 million rapists' lifespans.  

                    See the scale of the problem here?

                    Ignoring it won't make it go away.

                    We need a judicial system that's actually effective enough at prosecuting rape that:

                    A) Cases brought to court don't end up with significantly lower conviction rates than for other crimes;
                    B) Reported cases don't end up exceedingly unlikely to go to court, as they do today; and
                    C) Victims can have enough trust in the judicial system to not feel that reporting is a meaningless effort that can only have negative repercussions on them.

                    We can't change the fact that people - like, clearly, you - automatically operate on the premise of an abnormally high rate of false crime reporting among rape and disbelieve victims.  But we can change the process to make it effective enough that cases brought to court are more successful, more reported cases go to court, and more victims feel that it's not meaningless to take their case to the police.

                    •  Sorry, should be (0+ / 0-)

                      31 million men / 3.1 million rapists.  Can't divide tonight...

                      •  There aren't 3.1 million rapists in the UK (0+ / 0-)

                        Are you kidding here?

                        (-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 Wed Jun 19, 2013 at 04:57:56 PM PDT

                        [ Parent ]

                        •  Denial won't change facts. (0+ / 0-)

                          Or did you think that there were only like 10 guys going around raping 25% of the women in the US and UK?

                          It is simply a fact that about 10% of men willingly confess to rape in scientific studies if you don't use the word rape and simply ask whether they've ever done any of a variety of acts which are unambiguously rape.  Check out Lisak & Miller, and McWorter as 2 examples.  

                          Rape is a ridiculously common plague on our society.  And this won't change until people like you come to accept the facts.  Think of all the guys you know in your life.  Statistically, about a tenth of them have raped someone.  Deal with it.

          •  in a he-said she-said case (0+ / 0-)

            her rape.. becomes his normal casual encounter. and with the extreme's in punishment which is usually imprisonment, which is ironically probably the same as being sentenced to be regularly assaulted, sexually or otherwise, and a lifetime on the sex offenders registry. With that level of punishment I would sooner convict someone of murder than I would someone of rape.

          •  Wrong. (0+ / 0-)
            In rape cases the victim is required to prove that he or she did not want to be raped.
            She must prove that she actually was raped. There's no such thing as "wanting" to be raped. By definition, if she wanted the sexual contact it is not rape.

            Lack of consent is a necessary element of defining rape; therefore, lack of consent must be proven.  

            Please proceed, Governor.

            by USArmyParatrooper on Wed Jun 19, 2013 at 09:03:05 PM PDT

            [ Parent ]

            •  That's where this is so problematic. (0+ / 0-)

              A person does not want to have sex. A person does not consent to sex. A person is forced to have sex.
              The person complains to the police or a doctor that he or she was raped.

              Was that person raped?

              Whether or not the perpetrator is found guilty of rape does not change the nature of the victim's desire not to have sex.

              Is the definition of rape based solely on the establishment of guilt?

              If a person is raped, and never reports it, or the perpetrator is never caught, or never accused, was the victim never really raped?

              I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

              by mungley on Wed Jun 19, 2013 at 11:21:20 PM PDT

              [ Parent ]

              •  I'm not following. (1+ / 0-)
                Recommended by:
                andalusi
                A person does not want to have sex. A person does not consent to sex. A person is forced to have sex.
                The person complains to the police or a doctor that he or she was raped.

                Was that person raped?

                Yes, of course.
                Whether or not the perpetrator is found guilty of rape does not change the nature of the victim's desire not to have sex.
                Obviously.
                Is the definition of rape based solely on the establishment of guilt?
                No.
                If a person is raped, and never reports it, or the perpetrator is never caught, or never accused, was the victim never really raped?
                Of course the victim was really raped.

                Are these questions supposed to be rhetorical?

                Please proceed, Governor.

                by USArmyParatrooper on Thu Jun 20, 2013 at 02:26:51 AM PDT

                [ Parent ]

      •  Sorry, where do you get this idea? (1+ / 0-)
        Recommended by:
        HiBob
        while the latter has to be proven only by the preponderance of the evidence.
        I'm not aware of any criminal offense that carries that standard of proof.
        •  It was included in the diary. (1+ / 0-)
          Recommended by:
          Dogs are fuzzy

          And discussed extensively in the linked book, including the excerpt.  No need to repeat my diary or cite even more of the book.  Defense theories are not evaluated by the same standards as the basic facts of the case. Consent is a defense theory.

          •  Here's your comment (0+ / 0-)
            People do not concede to (3+ / 0-)
            unlikely sexual circumstances any more than people consent to give total strangers their money and whatnot.  Yet the former consent has to be proven beyond a reasonable doubt while the latter has to be proven only by the preponderance of the evidence.
            Again, I don't think the legal standard for convicting someone for theft is "preponderance of the evidence."
    •  And lots of people don't consent to sex (2+ / 0-)
      Recommended by:
      splashy, Mikey

      millions of times per day, too, but sometimes what one party would call "sex" and another would call "assault" occurs even though no one consented to it.

      Words can sometimes, in moments of grace, attain the quality of deeds. --Elie Wiesel

      by a gilas girl on Wed Jun 19, 2013 at 11:10:29 AM PDT

      [ Parent ]

      •  how often do people explicitly consent to sex? (4+ / 0-)

        My guess is that it's not very often where one party actually says 'yes'...  it's very murky what consent looks like in a legal sense imho. In the heat of things two lovers might never say a word but consent is implied.  In the case of underage rape the child may never say anything either because they're just too scared.  

        To you, I'm an atheist. To God, I'm the loyal opposition.” ― Woody Allen

        by soros on Wed Jun 19, 2013 at 01:45:14 PM PDT

        [ Parent ]

  •  my take on the subject (17+ / 0-)

    I have studied personal protection in Karate classes for a number of years now and I am concerned by the amount of anger and violence that is focused on women these days.
    Let's try a new way of expressing our expectations.
    " Consentual sex needs active consent and non consentual sex is always rape."
    if she isn't saying yes, the answer is NO. Guys,Gentlemen, and boys need to be taught to understand this. NO means NO and silence means NO, anything but a clear and ongoing yes is a NO.
    Not a pleasant topic but I have so many women in my life that I respect and love and I don't want any of them to be hurt by violence. I also study karate to be a defender.
    Thanks for your time

    I don't hit. But I do hit back

    by mcgee85 on Wed Jun 19, 2013 at 08:58:34 AM PDT

  •  In the interest of healthy debate (8+ / 0-)

    I'll give this a stab-though experience on Daily Kos has taught me to avoid these discussions.

    I have several problems with your diary, but I will focus primarily on what you say about "reasonable doubt", with the caveat that I am not a lawyer.

    "reasonable doubt" does not mean "beyond a shadow of a doubt". Reasonable doubt is the standard you should apply when making the most important decisions in your life such as removing a loved one from life support. Reasonable doubt is a common sense, every day standard of doubt. What evidence do you require to act with confidence when making the most important decisions in your life?

    If you apply this standard to sexual assault, the examples you gave would clearly allow a prosecutor to use the physical evidence as making it dubious that the person consented. Most people don't consent to those sorts of situations. Most jurors are not going to be inclined to believe consent in those kinds of cases.

    Secondly, once the prosecutor has presented the case and established a basis for guilt based on the evidence, it is in fact the defense's responsibility to rebut the evidence and disprove the evidence.

    I will also add that I think there are indeed cases where "consent" or the alleged victim's actions or statements really do count.

    It is indeed a possible defense, if accused of theft to argue that the accuser gave you permission to take the property or money. How credible this is depends on the circumstances.

    While "streetfighting" in and of itself leaves you open to criminal prosecution, the fact that the other person challenged you to a fight, or engaged in provocative actions would likely mitigate the charges. And of course, if the other person acted in a way that reasonably led you to believe you were in serious physical jeopardy, the fact that there is a dead body lying in a pool of blood does not establish a presumption of guilt. On the other hand, if the prosecutor establishes that you are the person who killed the other person, you do in fact have to prove as an affirmative defense that you acted in self defense.

    So no-I don't agree with eliminating the principle that the burden of proof is on the prosecutor or that the prosecutor has to prove things to a reasonable doubt.

    As matters stand, prosecutors already do their damnedest in court to make you believe reasonable doubt doesn't require good, clear evidence.

    Typically, in their opening statements, prosecutors begin with "I don't really need that much evidence..."

    I once heard a prosecutor say during voir dire "I don't have to put the ball in the end zone, I just have to get it to the 80 yard line."

    •  Re (1+ / 0-)
      Recommended by:
      Tonedevil
      While "streetfighting" in and of itself leaves you open to criminal prosecution, the fact that the other person challenged you to a fight, or engaged in provocative actions would likely mitigate the charges. And of course, if the other person acted in a way that reasonably led you to believe you were in serious physical jeopardy, the fact that there is a dead body lying in a pool of blood does not establish a presumption of guilt. On the other hand, if the prosecutor establishes that you are the person who killed the other person, you do in fact have to prove as an affirmative defense that you acted in self defense.

      So no-I don't agree with eliminating the principle that the burden of proof is on the prosecutor or that the prosecutor has to prove things to a reasonable doubt.

      Indeed, the prosecutor does have to prove the facts of the case beyond a reasonable doubt.  Including that you killed someone in a streetfight, for example, or the facts surropunding a rape case.  But the prosecution does not have to prove that you weren't acting in self defense more than a shadow of a doubt.  It's your defense, so it's a shared burden to make the case.  And likewise it should be for a consent defense in a rape case.

      To reiterate, it still remains the prosecutor's burden to prove the facts beyond a reasonable doubt.  But individual defense arguments for why the facts are what they are are are not inherently treated to a reasonable doubt standard.  As the link included in the diary goes extensively into.

      Rape an exception that requires remedy.

      •  I think you are confusing the issue (1+ / 0-)
        Recommended by:
        VClib

        There is no "shadow of a doubt" standard. This is not the standard in rape cases.

        The standard is "reasonable doubt".

        Let's compare two circumstances.

        1. You admit to having killed a person. You claim self defense. The Prosecutor has to prove that you did not act in self defense. The Defense has to present evidence that you did act in self defense.

        2. Two people of legal age engage in a sexual act which entails penetration (the legal standard for *rape* in Ohio: other acts are various degrees of sexual assault). One person claims this was rape. The Prosecutor has to prove that charge. The Prosecutor, at least in Ohio anyway, does *not* have to prove that the victim physically resisted. If I understand correctly (and I am not a lawyer) the standard in Ohio is the prosecutor has to prove that the person said no, or that the person was rendered incapable of saying no or yes (e.g. The Steubenville case), or that the alleged victim gave some kind of clear indication she did not want to have sex.

        The defense then has to present evidence that the alleged victim gave consent. This does not mean that the person necessarily said yes or signed a contract but there does have to be some indication that the sex was desired.

        I don't honestly know what happens in a case where an alleged victim says nothing but simply goes along with the act. I think (I don't know) in Ohio that the alleged victim would have to present evidence that she had a reason to be fearful of bodily harm (again you don't have to prove resistance in Ohio) and there would probably be an issue of level of participation. Clearly, the more the alleged victim participates, the more difficult it is to prove rape.

        During this process, the alleged victim's background is off limits to the defense *unless* there is direct relevance to the immediate case-which I entirely agree with.

        So I don't think you are identifying the correct standard.

        Now let's look at the issue of consent to BDSM Sex. There is a famous New York case-Jovanovic (I think) where the two had extensive e-mail exchanges in which the victim indicated a desire for BDSM sex. The two had an encounter and the victim continued to e-mail the defendant again indicating she had consented.

        The Prosecutor successfully blocked the e-mails from being admitted into evidence and Jovanovic fought the case for years and finally prevailed with a new trial where the victim refused to testify.

        The description of the encounter, if non-consensual, is horrific. How do we judge consent in these cases? Can you give consent to BDSM sex? This question is not even fully decided under U.S. law.

        Incidentally, the prosecutor in the Jovanovic case was the same prosecutor who became famous for the Central Park "wilding" case where a young black man was eventually acquitted.

        So, based on my non-lawyer limited knowledge of criminal law, I do not think you have correctly represented what the legal standard is in rape cases.

        Prosecutors do not have to prove beyond a shadow of a doubt that the defense arguments are wrong. They have to prove to a reasonable doubt based on the totality of the evidence, as weighed by the jury, that consent was not given.

        How juries weigh evidence is complex as I can say having once served on a jury.

      •  I don't see the difference (2+ / 0-)
        Recommended by:
        Sparhawk, VClib

        In the hypothetical murder trial, the defense doesn't have to prove that it was self-defense beyond a reasonable doubt, it just has to provide a plausible enough case that it might have been self-defense to introduce a reasonable doubt.

        In the hypothetical rape trial, the defense doesn't have to prove that there was consent beyond a reasonable doubt, it just has to provide a plausible enough case that there might have been consent to introduce a reasonable doubt.

        •  Standards and burdens (0+ / 0-)

          There's two issues here: the standards by which claims are evaluated and who bears the two burdens (production and proof).  The above link (people are really adverse to following links, aren't they?) well documents the fact that it's normal for individual affirmative defense claims to be analyzed on their own on a preponderance of the evidence.  Or you can simply use Google if you don't believe it.  To pick a random example, here's FindLaw's article on the insanity defense.  Heck, here's a Wikipedia article on affirmative defenses in general.  As a general rule with affirmative defenses, in establishing them, the moving party bears the burdens and a preponderance of evidence or clear and convincing evidence standard is used.

  •  Well... (6+ / 0-)

    The difference between rape and murder is that taking someone's life is presumed illegal unless certain very narrow conditions are met, while rape is based on a physical act that is rightly presumed legal. We do carve out an exception for minors, by defining the physical act as illegal (and look at the problems we're having with that!), but I can't see going beyond that.  It does seem more akin to robbery in that the context suggests the standard for proof: if you and I are in a conference room and I come out with your signature on a contract giving me your company, it's much harder for you to prove robbery than if you're caught in my basement with my TV. Maybe I did illegally coerce you into signing that contract, and maybe I gave you oral permission to come into my basement and take my TV anytime, but one case will seem a lot less plausible than the other.  Likewise for rape there are contexts where it's going to be a lot harder to make a beyond-reasonable-doubt case than others, and I am not keen on addressing that by establishing rules that would make everyday interactions (and sex is one of them) very weird.  

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Wed Jun 19, 2013 at 09:31:47 AM PDT

    •  Taking someone's life.... (1+ / 0-)
      Recommended by:
      Tonedevil

      can be first degree murder, second degree murder, third degree murder, voluntary manslaughter, involuntary manslaughter, or justifiable manslaughter.  The facts surrounding the case are what determine the degree of crime, if any.  And consent is one of those facts, and it does not have to be proven that the victim did not consent beyond a reasonable doubt.

      And consent does not require some sort of written contract.  Consent does not even have to be verbal.  Embracing, pulling you closer while smiling, etc are all forms of consent.  But consent does have to be given, every time.

      •  Of course consent has to be given every time. (5+ / 0-)

        What in that post suggests otherwise?

        The point is that sex is not something that can or should be assumed to be unwanted, unlike being hit or being murdered.  The vast majority of sexual acts are consensual.  The vast majority or murders, assaults, or robberies are not.

        "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

        by gustynpip on Wed Jun 19, 2013 at 11:15:59 AM PDT

        [ Parent ]

        •  So we should assume... (2+ / 0-)
          Recommended by:
          Tonedevil, LaraJones
          To put it another way: 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 to the event - that you weren't secretly into autoerotic asphyxiation and anal pentration, had a "wild night", then changed your mind.
          Tell me, is it more likely that a random person lived a secret life where they were into group masochistic anal bottle sex, or that they gave someone their wallet?

          Defense claims of consent need to be treated the same between crimes.  The same standards and the same burdens of proof.  The more unlikely it is that consent has been given, the easier it should be to find against the defendant.  The more likely it is that consent has been given, the easier it should be to find for the defendant.  What crime we're talking about shouldnt matter.  All that should matter is the plausibility of their defense argument.

          It's not that way today.  Consent claims in most crimes are evaluated that way, with joint or defense burden and on a preponderance of evidence standard, except rape, which has a prosecutorial burden and a beyond a reasonable doubt standard.  This is wrong.

          •  Perhaps we need to see specifics (0+ / 0-)

            on the rape statute in whatever state you're talking about.  Your assertion does not at all fit the jury instructions I received when I sat on a rape case here in Florida.

            I absolutely agree that:

            What crime we're talking about shouldn't matter.  All that should matter is the plausibility of their defense argument.

            “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

            by jrooth on Wed Jun 19, 2013 at 01:31:41 PM PDT

            [ Parent ]

          •  Is it that they are treated differently (1+ / 0-)
            Recommended by:
            Sparhawk

            Or is the difference that a claim of consensual sex is more reasonable than a claim of consensual wallet handing-over, so it is more likely to surpass the same standard or burden of proof?

          •  You're passing into the realm of the absurd here. (0+ / 0-)

            Your diary isn't about gang rape.  And when gang rape is involved, I doubt the prosecutor would have a difficult time meeting his burden 99% of the time.

            What you want is to change the rule of law for this one particular crime.  It simply doesn't work that way.  Nor should it be.

            "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

            by gustynpip on Wed Jun 19, 2013 at 04:12:09 PM PDT

            [ Parent ]

    •  Rape is not (5+ / 0-)

      "based upon a physical act that is presumed legal" (I assume you are imply that rape is based upon sexual conjugation, i.e. the act that is presumed legal.  

      Rape isn't based upon the sex act that is presumed legal, however, rape is based upon an act that is also presumed illegal, namely "assault.  It is simply that the form the assault takes borrows from an area of human practice that large numbers of people throughout history have assumed was always presumed consensual and legal.

      Words can sometimes, in moments of grace, attain the quality of deeds. --Elie Wiesel

      by a gilas girl on Wed Jun 19, 2013 at 11:16:24 AM PDT

      [ Parent ]

      •  Exactly. (2+ / 0-)
        Recommended by:
        Tonedevil, LaraJones

        The GP argument would be like saying "Theft is based upon a physical act that is presumed legal", that is, giving someone money or property.

        The double standard so many have for rape is really overwhelming.   Arguments they would never apply to any other crime, they apply to rape.

        And the legal system generally applies standards to rape that it would never apply to other crimes.

      •  Is that really true, though? (0+ / 0-)

        If you assault someone without a sexual aspect, it's assault rather than rape and there is zero controversy in our society about how it's treated by the criminal justice system.  

        You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

        by Rich in PA on Wed Jun 19, 2013 at 03:15:24 PM PDT

        [ Parent ]

  •  The best analogous case (4+ / 0-)
    Recommended by:
    patbahn, AdamSelene, gustynpip, rb608

    Is probably when one person claims an item was stolen and the person who has it claims that it was a gift and the alleged giver is lying for some plausible reason, perhaps a jealous ex-lover trying to punish someone.

    In that case, if there is no corroborating evidence and it boils down to who you believe more, where should the burden of proof lie?

  •  there are IMHO 3 criminal standards (0+ / 0-)

    knowingly, recklessly and strict liability.

    Now rape is a different case because it's consent, so it's
    not just knowing on the part of the defendant but consent on the part of the victim.

    it's usually pretty clear in cases between strangers and with violence, but it's always muddy between acquaintances and with alcohol involved.

    There was a case in baltimore i heard about (yes, i know that's usually the start of an urban legend) where a guy
    got really drunk, went to his row house, went upstairs had sex with his drunk wife.  Only problem,  he had gone to the wrong house.  both people drunk, both operating under a common mistake, both horrified and revolted when the morning came.  what the heck do you do with these people?

    I guess the real question, is the original poster suggesting we move the standard from knowingly to negligently or to a strict liability standard?

    we use strict liability in child porn and statutory rape, because, that allows children to not be considered consenting, and not be considered,  it's "Mallum per se"  

    So what's the standard the poster suggests?  of course, with the rise of the surveillance state, perhaps in future cases, people can get the NSA web videos through the cameras in their laptops and cell phones to document these cases.

  •  I'm lost here ... (4+ / 0-)

    First of all, "beyond a reasonable doubt" is the standard of proof in common law for all crimes.  There are no criminal proceedings with a standard of "beyond a shadow of a doubt" nor "by a preponderance of the evidence" (the standard in civil proceedings) or any of the other standards you list.

    If you are arguing that there should be a lower standard of proof for the crime of rape than for any other crime, I can't agree.  It seems to me that the problem here (and I certainly agree there's a problem) is not in the legal standard but in how juries (and people in general) evaluate that standard for different crimes.

    “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

    by jrooth on Wed Jun 19, 2013 at 10:21:25 AM PDT

    •  If you're lost, (1+ / 0-)
      Recommended by:
      VClib

      I recommend reading parts of the linked book by a professor of Criminal Justice at WMU and founding chairperson of the Division on Critical Criminology of the American Society of Criminology, who disagrees with you and makes the exact same argument I'm making here.

      The facts of a case must be established beyond a reasonable doubt and are the prosecutor's burden.  Defense arguments for why the facts are what they are, are not inherently so, and often are not so.  Many examples are cited.

      •  But why is that not (as I suggested) (1+ / 0-)
        Recommended by:
        gustynpip

        a problem of how juries evaluate the reasonable doubt standard in different crimes?

        So am I mistaken in my impression that in your diary you are advocating a lower standard than "beyond a reasonable doubt" in rape cases?  If so, I apologize.

        “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

        by jrooth on Wed Jun 19, 2013 at 10:50:59 AM PDT

        [ Parent ]

        •  No. The diarist is eliminating the extra standard (4+ / 0-)
          Recommended by:
          splashy, Rei, rb608, Cassandra Waites

          that appears in rape cases.

          The prosecution in most rape cases has to prove, not just that the perpetrator had sex with the victim, but that the act was not invited or encouraged by the victim.

          I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

          by mungley on Wed Jun 19, 2013 at 11:54:16 AM PDT

          [ Parent ]

          •  I don't see that it's an extra standard. (1+ / 0-)
            Recommended by:
            Sparhawk

            The defense is free to argue that any act was invited, regardless of what crime is charged.

            In your example above, the defendant would be free to argue that, while he did indeed take the wallet, he and the victim are good friends and the victim had in fact previously said that the defendant was welcome to borrow his wallet at any time he wished.

            It's up to the jury to decide how credible they find that defense in light of the full body of evidence presented.

            “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

            by jrooth on Wed Jun 19, 2013 at 12:07:30 PM PDT

            [ Parent ]

            •  Right. "He was dancning with his bulging wallet (4+ / 0-)
              Recommended by:
              Rei, LaraJones, Cassandra Waites, Em

              right there in my face all night.
              He even bought me a beer.
              How could I not have understood that he wanted me to take his wallet?"

              Rape victims still have to prove that such stupid claims are false.

              I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

              by mungley on Wed Jun 19, 2013 at 12:22:57 PM PDT

              [ Parent ]

              •  So you want a blanket prohibition (1+ / 0-)
                Recommended by:
                Sparhawk

                on certain defense theories?  I really think you haven't thought this through.

                “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

                by jrooth on Wed Jun 19, 2013 at 12:39:41 PM PDT

                [ Parent ]

                •  You did not understand the diary. (4+ / 0-)
                  Recommended by:
                  Rei, splashy, Cassandra Waites, Em

                  The defense can argue however it likes.

                  The presumption of consent means that the victim has to prove there was no consent before the defense even needs to begin.

                  Contrary to your other posts, that standard is not held in other crimes.

                  If the defense can prove consent, or the jury thinks there was a reason to believe consent, that's different.

                  I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                  by mungley on Wed Jun 19, 2013 at 12:48:27 PM PDT

                  [ Parent ]

                  •  I have been on five juries in my life. (3+ / 0-)

                    Three civil, two criminal.  The first criminal case was three counts of armed robbery.  The other was eight counts of aggravated rape.

                    I can recall no significant differences in the standards of proof required in either case.  In each, we received instruction on what the law is and we retired to deliberate on the evidence until we reached a verdict (guilty in both cases.)

                    I'm still lost as to what this alleged different standard is.  I have not seen it written in statute, I have not heard it in instructions from the court.

                    “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

                    by jrooth on Wed Jun 19, 2013 at 01:21:18 PM PDT

                    [ Parent ]

                    •  Did you read the diary? (1+ / 0-)
                      Recommended by:
                      Dogs are fuzzy

                      The standard is that of assumed consent.
                      It isn't a statute. It's a standard to which rape victims are held that others are not.

                      It is unlikely that a person accused of 8 counts of 'aggravated' rape could argue the assumed consent angle, if there were multiple victims or one victim who resisted the attacks.

                      The rapists in Stubenville indeed claimed that their victim was a willing participant in the rape (i.e. it wasn't rape) even though she was not conscious during at least some of the acts.

                      In that case an assumption of consent would mean that since she did not say 'no', she consented.
                      It also means that even if she consented at the first house or in the car, and later would not have consented to the acts of depravity which were perpetrated against her, her lack of protest implied continued consent.
                      (I don't know the specifics of the defense arguments in that case, but it illustrates the concept)

                      Shorter:
                      Assumed consent = victim prove you did not want sex.
                      No assumed consent = accused prove you had a reason to assume consent beyond a reasonable doubt.

                      I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

                      by mungley on Wed Jun 19, 2013 at 03:46:56 PM PDT

                      [ Parent ]

                      •  Well if it isn't statute ... (0+ / 0-)

                        then it's as I said to begin with - the problem lies in how juries interpret the standard of proof in different crimes.

                        “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

                        by jrooth on Thu Jun 20, 2013 at 05:55:37 AM PDT

                        [ Parent ]

            •  This part... (0+ / 0-)
              The defense is free to argue that any act was invited, regardless of what crime is charged.
              is not in question.

              I believe that the point of the diary is that it should be the burden on the defense to prove it was consensual instead on the accuser to prove it was not.  If the defense wants to argue the act was invited as they are free to do, they should be required to prove it.

              You can't spell CRAZY without R-AZ.

              by rb608 on Wed Jun 19, 2013 at 01:09:30 PM PDT

              [ Parent ]

              •  Why (2+ / 0-)
                Recommended by:
                rb608, VClib

                The defense doesn't have to prove anything at all. The defense can just sit there and not say a word.

                It is the prosecution's job to prove that the sex was nonconsensual beyond a reasonable doubt. If it's 50/50 the defense wins without opening their mouths. If it's "we dont know", the defense wins. The defense doesn't have to prove a thing.

                (-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 Wed Jun 19, 2013 at 02:33:24 PM PDT

                [ Parent ]

          •  That's because (2+ / 0-)
            Recommended by:
            Sparhawk, VClib

            proving that someone had sex does not constitute a criminal act and there is no presumption of assault when two adults have sex.

            The burden is on the prosecutor to prove that the sexual act was not consented to by the alleged victim, and consequently, constitutes an assault.

            •  So, sexual assault is only a crime if you can (1+ / 0-)
              Recommended by:
              splashy

              prove that you did not want to be assaulted.
              That is a different standard than other victims of crimes have to face.

              That's the point of the diary, and it's why we need to discuss the standard.

              If a person is not in a position to give consent, and later claims that he or she was raped, why does that person still have to prove that consent was not given?
              The defendant should have to prove that it was given, not the other way around.

              I ain't often right, but I've never been wrong. Seldom turns out the way it does in this song.

              by mungley on Wed Jun 19, 2013 at 12:55:48 PM PDT

              [ Parent ]

            •  Just like... (5+ / 0-)
              Recommended by:
              splashy, rb608, LaraJones, Cassandra Waites, Em

              proving that someone has property that you previously possessed does not constitute a criminal act and there is no presumption of theft when an adult gives property to another adult.

              People keep making these "people have sex all the time so we should assume consent" arguments.  Well, people give each other stuff all the time, but we don't assume consent in theft cases.  Consent is a defense claim.  The prosecution doesn't need to disprove consent beyond a reasonable doubt.  They don't bear the burdens.

              But they do in rape cases, both bearing the burdens and a beyond a reasonable doubt standard.

              The fact that so many keep making arguments that they would never make with any other crime is really symptomatic of the rape culture that we face.

              •  I don't think you are correct (1+ / 0-)
                Recommended by:
                VClib

                About the standard.

                I really don't see a point in repeating everything I have just said.

                First you gave the example  of BDSM sex, which is an extreme example and in fact, in the case of BDSM sex, the presumption is not that a person consented. The presumption is that a defendant is not guilty until proven innocent.

                In the case of somebody being not in a position to give consent (for example, Steubenville) the prosecution has to prove the person could not give consent. The defense has to present evidence and prove that the person was in fact able to give consent and consented.

                The mere fact that people disagree with you and think you have misunderstood the issues is not an example of "rape culture".

                The fact that you make that accusation is an example of why I generally choose not to participate in these discussions on Daily Kos.

                You started by saying you wanted discussion and you got discussion. You got reasoned, civil discussion.

                Then you say this discussion exemplifies rape culture.

                I say that exemplifies a way of shutting down the discussion.

                •  Presumptions (0+ / 0-)
                  I don't think you'r'e correct about the standard
                  I cited a book which cites numerous sources and court rulings.  And it's easy to demonstrate who bears the burden of production anyway.
                  First you gave the example  of BDSM sex, which is an extreme example and in fact, in the case of BDSM sex, the presumption is not that a person consented. The presumption is that a defendant is not guilty until proven innocent.
                  If you are declaring by your last statement that the establishment of consent requires the beyond a reasonable doubt standard and that the prosecution bears both burdens, then you're declaring that the prosecution must prove beyond a reasonable doubt that the person did not consent to BSDM sex, and the prosecution bears both burdens in doing so.  Which is a presumption that the person consented which must be disproven.  If you don't like this presumption, then you should argue for changes in the burden and/or standard for the establishment of consent, as I and the cited book are doing.
                  In the case of somebody being not in a position to give consent (for example, Steubenville) the prosecution has to prove the person could not give consent
                  Correct - one way to prove a lack of consent is to prove that the victim was unable to give consent.

                  In the real world, 99% of the time this is not possible.  Alcohol and date rape drugs are not always used.  The presence of alcohol or date rape drugs doesn't mean that the person was at the time of sex incapacitated to the degree of not being able to consent.  Alcohol and date rape drugs rapidly leave the system and are very difficult to test for.  Victims often do not report immediately, and with alcohol and some date rape drugs the person typically will not have their full wits about them until the alcohol levels are low again or the drugs are fully   of their system.  Rarely are witnesses good for anything other than circumstantial evidence.

                  So yeah, that's great for the Steubenville.  Now for the 99%?

                  And back to the basics:

                  * There is a massive problem with sexual assault with impunity in most of the world that has gone largely unaddressed.
                  * There is a massive problem currently in terms of prosecution of rape versus prosecution of other crimes, with the balance on the scales of justice far too far in favor of underprosecution than overprosecution.  This should be remedied.
                  * There is already a well-documented balance in favor of believing the arguments of defendants in rape cases, regardless of the legal standard applied for evaluating their claims.
                  * The problem of underprosecution stems from the misapplication of a standard used for establishing the facts of a case to what should be treated as a defense argument ("she consented").
                  * "Beyond a reasonable doubt" is seldom applied to defense arguments unrelated to basic facts of the case - aka, "I'm insane", "It was self defense", etc.  The defense typically bears the burden to prove their arguments for why the established facts are as they are, with a "preponderance of evidence" standard.
    •  Check the phrase "affirmative defense" (0+ / 0-)

      n/t

      Freedom isn't free. Patriots pay taxes.

      by Dogs are fuzzy on Wed Jun 19, 2013 at 09:57:15 PM PDT

      [ Parent ]

      •  Doesn't apply here. (1+ / 0-)
        Recommended by:
        VClib

        Lack of consent is a required element for a rape charge, and thus, must be proved beyond a reasonable doubt.

        Just as the former prosecutor explained, in a First Degree Murder charge, premeditation is a necessary element and must be proved.

        Please proceed, Governor.

        by USArmyParatrooper on Wed Jun 19, 2013 at 10:37:36 PM PDT

        [ Parent ]

  •  You aren't a lawyer, are you? (6+ / 0-)

    Because the lack of consent is an element of the crime.  As such the fact has to be shown beyond a reasonable doubt.  That is the standard for criminal prosecutions as a constitutional matter.   I don't think you will get too far with trying to relax that.  Yes, it is difficult to prove, but that is how our law is.  

    (Note: insanity is an affirmative defense, which a lack of consent is not.  )

    Touch all that arises with a spirit of compassion. An activist seeks to change opinion.

    by Mindful Nature on Wed Jun 19, 2013 at 11:01:06 AM PDT

  •  The problem here is the constitutional (1+ / 0-)
    Recommended by:
    rb608

    constraints on criminal law. The issues of establishing consent is a very thorny and difficult issue. There have been a number of people who have proposed dealing with it by putting the burden of proof on the accused. That is not likely to ever happen and I think that the proposal here, while a bit more modest, would run into the same problems.

    As has already been mentioned, with various serious crimes the law treats a basic behavior as having different levels of criminality depending on circumstances and intent. Rape is basically dealt with as an all or nothing proposition. Other charges such as grave bodily harm can be added to it.

    I will understand the concern that nothing should be done to trivialize any act of sexual assault. However there is a range of situations involved in rape that range from aggressive attacks in public places to situations in private where there was initial agreement to some level of physical intimacy but a disagreement about how far that should have proceeded. Should all of these situations be treated in exactly the same in under criminal law?

  •  An interesting and well presented topic. (1+ / 0-)
    Recommended by:
    HiBob

    As I'm typing this however, I began to wonder how imposing the burden of proof on the defendent might necessitate giving the defendent greater leeway in meeting that burden. For example, does an accuser's previous sexual history now become admissible?  If a defendant must prove the accuser's consent, would not the accuser's history and habits become relevent and necessary to proving the accuser's state of mind and likelihood of consent?

    You can't spell CRAZY without R-AZ.

    by rb608 on Wed Jun 19, 2013 at 11:47:19 AM PDT

  •  Recent Wisconsin Rape Attack (7+ / 0-)

    This week a law was being debated that would require a rape be reported to the police before it would be a rape. A WI legislator said she had been raped at 8 by a cousin.  The family kept it a secret to protect her.  Only about 18% of rapes are reported.  It seems rape is a subject that needs discussion and not by the weird right who seem to know nothing about a woman's biology or her basic rights.

  •  You've missed the point (1+ / 0-)
    Recommended by:
    VClib

    It's not the "beyond a reasonable doubt" standard your diary has a problem with.

    It's the whole "innocent until proven guilty" thing you seem to have an issue with.

    Black Holes Suck.

    by Pi Li on Wed Jun 19, 2013 at 03:40:09 PM PDT

    •  Thank you for making my point. (1+ / 0-)
      Recommended by:
      Em

      Summary of my argument: consent is treated differently in rape cases versus other types of law, and this should be reconciled.
      Summary of your reply: You want to have innocent people treated as convicts.

      So many people are so biased with the presumption that when women allege rape, there's some abnormal risk that it's false (versus other crimes, it distinctly is not), that they're perfectly willing to apply completely different standards.  

      Consent in crime is a defense theory.  It should be treated as a defense theory, whether it's rape or any other crime where the defendent claims consent.  I'm not even touching the clearly demonstrated (including in this thread) social bias against people who allege rape, which would offbalance even a judicial system where consent was treated as a defense theory in favor of defendants.

      •  Thanks for the lesson, but... (9+ / 0-)

        I'm a former prosecutor. I've tried my share of sexual assault cases, and sent more than a few rapists to prison. I understand the law, and the issues you refer to in this diary. But the bottom line is lack of consent is a element, in one form or another, in all rape statutes. And rightly so. Yes, it sometimes makes proving rape cases problematic, trust me, I know. But under the constitution our legal system is designed to protect the rights of the accused.

        And as an aside, almost all the examples you cite...murder, robbery, etc. are not on point. No one presumes that the vic consented to being murdered. But it's up to the prosecution to meet each of the elements of, first degree murder for example, beyond a reasonable doubt...including things like premeditation, intent, and malice aforethought, all of which which can sometimes be as tricky as lack of consent. And at each stage the defendant is presumed innocent of each these elements until the prosecution proves otherwise. It's just how it is, and has little to do with fairness for the victim...whose rights in the courtroom are a statutory creation, BTW, which are distinguished from the rights of the accused, which are based on the Constitution.

        If I come across as glib, I apologise. Again, I understand all too well the challenges that come with many rape cases. But you simply cannot presume a lack of consent, an element of the crime, period. It would undermine our entire justice system.

        Black Holes Suck.

        by Pi Li on Wed Jun 19, 2013 at 05:06:55 PM PDT

        [ Parent ]

        •  Thank God, an ACTUAL lawyer. (3+ / 0-)
          Recommended by:
          Robobagpiper, VClib, andalusi

          You've pretty much demolished the legal arguments of the Diarist, although with your background it's not exactly a fair fight.

          But let's just look at it from a logical standpoint.

          A man and woman have sexual contact and the woman claims it was not consensual, if merely a preponderance of evidence is required to determine consent then the entire case has been decided on the preponderance of evidence. That's a far cry from beyond a reasonable doubt, and I can't even begin to imagine how many innocent men (and it rare cases women) would end up having their lives shattered by the legal system.

          Please proceed, Governor.

          by USArmyParatrooper on Wed Jun 19, 2013 at 09:34:40 PM PDT

          [ Parent ]

          •  Right. As if I didn't cite as the basis of the (0+ / 0-)

            diary an entire book by a professor of Criminal Justice and founding chairperson of the Division on Critical Criminology of the American Society of Criminology.  Sorry, but Appeal To Authiroty Fail.

            And your latter paragraph could be applied 100% equally to pretty much any other crime where consent is a defense.

            and I can't even begin to imagine how many innocent men (and it rare cases women) would end up having their lives shattered by the legal system.
            1) Where's your crocodile tears for all of the innocent people jailed when they were given something legitimately and then were charged with theft?  Oh I'm sorry, people charging theft are all sincere, but women alleging rape are just a big mob of lying sluts, I forgot!

            2) Here's a direct challenge for you: try to argue the point that there is NOT currently a massive imbalance in the scales of justice on the side of underprosecution of rape.

            •  As opposed to your own appeal to authority? (2+ / 0-)
              Recommended by:
              Robobagpiper, andalusi

              Once again your comparisons fail miserably.

              A person cannot consent to being shot with a gun. In fact, if you outright tell me to shoot you and I oblige, I go to jail.

              A man putting his penis in a woman's vagina is not in and of itself a crime. It only becomes a crime if it is against her will, the necessary element that must be proved.

              1) Where's your crocodile tears for all of the innocent people jailed when they were given something legitimately and then were charged with theft?  Oh I'm sorry, people charging theft are all sincere, but women alleging rape are just a big mob of lying sluts, I forgot!
              Wow, lots of loaded stuff in that one!

              First you implied that having a concern for innocent people means a lack of concern for rape victims, very classy.

              Then you falsely implied that I suggested people charging theft are all sincere.

              Last, you falsely imply that I think women alleging rape are just a big mob of lying sluts. Again, very classy.

              2) Here's a direct challenge for you: try to argue the point that there is NOT currently a massive imbalance in the scales of justice on the side of underprosecution of rape.
              I would need to look up the statistics, but I certainly don't doubt that rape is difficult to prosecute. But the answer isn't to do away with our Constitutional rights. Now please reciprocate the courtesy of addressing MY numbered questions.

              1: Do you agree that, even in a rape trial, the threshold of proof for the case as a whole should be beyond a reasonable doubt?

              2: Say a defendant in a rape case is claiming the sex was consensual, but the jury believes there's a slight (51%) chance the sex was not consensual. Under the threshold of the preponderance of evidence it is then judged to be sex against her will. Do you believe the case as a whole has been proven beyond a reasonable doubt?

              Please proceed, Governor.

              by USArmyParatrooper on Thu Jun 20, 2013 at 01:29:40 AM PDT

              [ Parent ]

        •  And oh, yeah. Thank you for your service. (0+ / 0-)

          I hear that often due to my job, but I appreciate what both prosecutors and, yes, defense attorneys do.

          I'm curious, in every case were you thoroughly convinced the accused was guilty? Did you ever have a case you thought he/she might be innocent, but you still felt the evidence was strong enough to convict?  

          Please proceed, Governor.

          by USArmyParatrooper on Wed Jun 19, 2013 at 09:48:59 PM PDT

          [ Parent ]

          •  No (1+ / 0-)
            Recommended by:
            VClib
            I'm curious, in every case were you thoroughly convinced the accused was guilty? Did you ever have a case you thought he/she might be innocent, but you still felt the evidence was strong enough to convict?  
            I never brought a case to trial where I wasn't convinced the D was guilty of the crime I was charging him/her with. Though I've certainly had cases where I was convinced of guilt, but wished the evidence was stronger. And of course I had cases all the time where I was convinced of guilt, but let the D plea to a lesser crime, either because the evidence didn't support the crime he/she was arrested for, or because I thought there were mitigating circumstances and justice wouldn't be served by harder penalties.

            Thanks for your service as well!

            Black Holes Suck.

            by Pi Li on Thu Jun 20, 2013 at 06:09:54 AM PDT

            [ Parent ]

        •  The bottom line (1+ / 0-)
          Recommended by:
          Em
          But the bottom line is a lack of consent is an element, in one form or another, in all rape statutes
          1) Given that the diary is about reforming rape statutes, that line is at best tangential and circular logic, akin to saying gays shouldn't be able to get married because marriage statutes are about a man and a woman.

          2) The book cited goes into exceptions.  And while it's focused on the US, I can point to exceptions beyond even those discussed in the book - for example, changes in UK rape law.

          And as an aside, almost all of the examples you cite...murder, robbery, etc. are not on point. No one presumes that the vic consented to being murdered.
          To the contrary, that is THE point.  Nobody presumes consent anywhere but rape.  As a general rule, claims of consent are treated as defense theories, EXCEPT in rape.  
          •  Ugg... (3+ / 0-)
            Recommended by:
            Robobagpiper, VClib, andalusi

            In response to Pi Li saying, "But the bottom line is a lack of consent is an element, in one form or another, in all rape statutes"

            You said:

            1) Given that the diary is about reforming rape statutes, that line is at best tangential and circular logic, akin to saying gays shouldn't be able to get married because marriage statutes are about a man and a woman.
            Are you actually suggesting a lack of consent should NOT legally be an element of rape statutes? You know that effectively makes consensual sex rape, right?
            To the contrary, that is THE point.  Nobody presumes consent anywhere but rape.  As a general rule, claims of consent are treated as defense theories, EXCEPT in rape.

            How many times are you going to ignore this point? The physical act of plunging a knife into someone, or shooting them, is NOT something that can be consensual. The physical act of putting your penis in a woman's vagina CAN be consensual. It's called sex.

            Please proceed, Governor.

            by USArmyParatrooper on Thu Jun 20, 2013 at 01:56:59 AM PDT

            [ Parent ]

          •  Still missing the point (3+ / 0-)
            Recommended by:
            VClib, jrooth, andalusi

            No one is "presuming consent" in a rape case.  What they are presuming is that the defendant is innocent of the crime he's charged with until proven guilty.

            A defendent is charged with rape. It's up to the state to prove each element of rape beyond a reasonable doubt. There's no "presumption" that consent, or non-consent or even sex, or anything occured until the prosecution proves it...or both parties stipulate to it. The thing is, non-consent in a rape case is the whole enchilada. Sex without consent is rape. If you presume non-consnet, and leave it up to the defendent to prove consent, you're essentially going into the trial with the presumption that the D is guilty for the crime which he's been charged. You just can't do that.

            I'm not even sure what you're suggesting...that we presume non-consent? The result of that would be that every person accused of rape would be presumed guilty. And that all sex would start out with the presumption that it's rape.

            Even in cases like statutory rape, or where the victim is passed out, we're not presuming non-consent, but rather we've established via statute that the victim is incapable of consenting in the first place. Do you see the legal distinction, and why it's necessary?

            And again, you keep arguing that consent is always a legal defence, which is absurd. Non-consent is actually an implied element of a lot of crimes. Let's say I am prosecuting you for car theft. The FIRST ELEMENT of most auto theft statutes is "Wrongful taking"...i.e. the taking was without consent and is unlawful. I have to prove that the car you've taken is does not belong to you, and that you were driving it unlawfully (i.e. without the consent of the owner). Just driving someone else's car isn't a crime, which is why in a trial I just cant pull out the vehicle's registration certificate, mention that the name is different than yours, and ask the jury to find you guilty. I'd also need to establish that you did not have consent to drive the car. It could be something as simple as calling the owner to the stand and asking her "Did Rei have consent to take your car." They say no, and I've established that you've taken the car unlawfully. If I can't prove you've taken the car unlawfully, I can't prove you committed the crime. So how is consent presumed in this case? It's not. Now, as a defense, AFTER I've established you didn't have consent via evidence, you could take the stand and say "No, the owner consented to me giving the car"...then it's a matter of credibility for the jury to decide.

            Finally, I understand you read a book about this subject. Great. It won't suprise you to learn that there are books and law review articles written by lawyers, non-lawyers, and academics criticising and looking to change every aspect of our legal system. Most even constain cites. That doesn't mean some of these ideas are not extreme, outside the mainstream and compeltey unconstitutional.  I've read some calling for abolishment of the "one person, one vote" system. Some calling for doing away with Miranda. They all have cites, but that doesn't make them right. Certainly we need to find better ways to respect rape victims and see that those who commit rapes are brought to justice. But basically presuming guilt (which is what you are doing when you presume non-consent in a rape case) is not the way to do it.

            Black Holes Suck.

            by Pi Li on Thu Jun 20, 2013 at 05:59:06 AM PDT

            [ Parent ]

  •  I'm not sure the reason only 10% wind up in jail (3+ / 0-)
    Recommended by:
    memiller, Cassandra Waites, jrooth

    (or whatever small number it was) lies solely, or even mainly in the realm of 'what happens at trial'.  There was a diary a few weeks or months back (when Steubenville was in the news, I think) that discussed various related issues, and what seemed to loom large in 'non-stranger' rape, was simply that people didn't actually necessarily know what constituted rape - and by people, I mean both males and females.  As a society, we've pushed stereotypical behaviours in media that add up to rape, but are rarely talked about as such when they occur.

    I think the diary mentioned some sort of 'Don't be that guy' campaign, and it sounded like a good step - actually pushing out anti-rape PSA's, like we have with anti-bullying and other topics, to let teenagers and young adults actually know that a lot of what they've seen in movies is actually rape, and not something to be emulated.

    We've got a long way to go before we even see most rapes getting reported to police, much less going to trial.

  •  In every criminal trial the first burden of the (2+ / 0-)
    Recommended by:
    soros, Cassandra Waites

    prosecution or plaintif is that a crime was committed.  Then the prosecution has to prove that the accused was the one who committed that crime.

    In the case of rape the first proof has to be that there was intercourse or manual penetration with a foreign object or some overt sexual act.

    That is not easy if there were no witnesses and or if the victim has not been injured or mutilated in some manner.
    This is like trying to prove murder when there is no body.  

    Then the prosecution has to prove that the victim did not give consent to intercourse or did not consent to the type or  extent of sexual contact.
    Again the same problems exist, no witnesses, no injuries it becomes very difficult.

    One of the reasons that it is really really important for rape victims to report the crime to the police is so that a record exists if there are subsequent reports.

    It makes it much easier for the police to act on the subsequent report, and if charges are filed there is the previous report AND A WITNESS, ie. the previous victim.

    It is also really important for the victim to save their clothing as it will have the perps DNA and probably semen.

  •  burdon of proof is on the accuser to show that (2+ / 0-)
    Recommended by:
    USArmyParatrooper, VClib

    a crime did happen. in the case of unconsenual sex it's up to her to prove that it wasn't consensual. in a he-said, she-said case the accused never has to take the stand and his lawyer can just say that it was. his word is as good as hers without further evidence. Her accusation isn't enough to put him behind bars, nor should it be.

  •  Someone who testifies in court that someone (1+ / 0-)
    Recommended by:
    Dogs are fuzzy

    stole their money is believed and the case proceeds on that basis.

    Someone who testifies in court that someone raped them is viewed skeptically, if not disbelieved outright, and the case proceeds on that basis.

    That is the extra burden in court.

    The extra burden begins long before the court case, where if a woman fails to pound the guy with her fists and scream "No no no no no!" at the top of her lungs in front of a dozen witnesses, the consent is presumed, i.e., she is held responsible for a rape committed by someone else, by both the rapist and an alarmingly large segment of society. If she drank a drop of alcohol, was raped at a bar or social event of any kind, wore an attractive outfit or was outgoing and friendly to any men, then consent is presumed and again she is blamed by many others.

    We can say "but you can argue these same things in other court cases" until the cows come home, but it doesn't work that way in real life.

    I'm amazed by people's courage and kindness in the face of everything and life.

    by LaraJones on Wed Jun 19, 2013 at 06:02:41 PM PDT

    •  Nonsense. (0+ / 0-)
      Someone who testifies in court that someone stole their money is believed and the case proceeds on that basis.
      100% false. An accusation of theft without corroborating evidence goes nowhere.

      As with any other crime, including rape, it must be proved beyond a reasonable doubt.

      Please proceed, Governor.

      by USArmyParatrooper on Thu Jun 20, 2013 at 12:12:18 AM PDT

      [ Parent ]

      •  In the words of Wikipedia, (0+ / 0-)

        "Citation needed".

        I've got my cite, now your turn.  Go on, please show me a single instance of a theft trial where the prosecution had to entirely bear the burdens of both proof and production and per-claim beyond a reasonable doubt standard in disproving the defense theory that the accuser willingly gave money to the accused.

        While you're at it, do the same for insanity and self defense claims.  "Sorry, your honor, but it was dark and I honestly believed that that mob of kindergarteners was armed.  Prove that I didn't!".  Show me examples of such.

        It's your unreferenced claim, back it up.  If you hold, contrary to the cites, that defense theories have to be disproven beyond a reasonable doubt by the prosecution bearing both burdens, back it up.

        •  Really? (0+ / 0-)

          You actually need a citation? Look at his statement again.

          Someone who testifies in court that someone stole their money is believed and the case proceeds on that basis.
          I can, Rai, go to the police and claim YOU stole me, provide no evidence to that affect, and not only automatically be believed but have the case proceed to trial?

          You're actually asking for a citation? Fine.

          http://www.gasawaylongandfarmer.com/...

          First, the prosecutor analyzes the case to determine if it is legally sound. The case must not have any obvious defects that will get it thrown out of court, such as violation of the defendant's constitutional rights or destruction of evidence crucial to the defense. Next, the prosecutor decides if there is adequate and reliable evidence of the person's guilt. The prosecutor must determine that the amount of evidence, and the quality of evidence, makes conviction probable

          Please proceed, Governor.

          by USArmyParatrooper on Thu Jun 20, 2013 at 01:36:11 AM PDT

          [ Parent ]

  •  This claim (1+ / 0-)
    Recommended by:
    edg
    Approximately 10% of men admit to having committed rape in studies when the word "rape" isn't used, but situations that are rape are described and the subjects are asked if they've done them.
    I'd like to see some of these hypothetical situations they describe as rape.  Have a link to where I can read more?  I'm betting some of their definitions of rape are so overly broad the net will catch just about anybody.

    Hell, a poster here once said that threating language is the same thing as rape.

    To you, I'm an atheist. To God, I'm the loyal opposition.” ― Woody Allen

    by soros on Wed Jun 19, 2013 at 07:36:23 PM PDT

  •  A victim with massive injuries and a bottle (1+ / 0-)
    Recommended by:
    USArmyParatrooper

    shoved in their rectum is quite an extreme.  It's hard to imagine that I want to be beaten unconscious and have my guts violated due to an obscure kink.  It's hard to imagine that I want to have sex at gunpoint or under threat of being strangled.  It's not, however, hard to imagine that I just want to have sex, that I went to the bar to pick up a partner and that was that.  Not assuming consent in cases where factors like guns, knives, threats, etc. don't come into play seems to me to be a recipe for landing a lot of innocent men in jail.

    If we never assume consent, on what grounds would the implausibility of having given consent arise?  He's ugly, she's not?  He's 60, she's 25?  He's white, she's black?  He's blue-collar, she's white-collar?  He's atheist, she's Christian?

    Help me out here.

    •  It's hard for *you* to imagine. (0+ / 0-)

      But prove to a jury beyond a reasonable doubt that it's not your secret fetish.

       It's hard to imagine that I want to have sex at gunpoint
      Prove that it was at gunpoint.
      or under threat of being strangled.
      Prove that it was under threat of being strangled.

      Do you think we live in some sort of world where every bedroom and alleyway is on high-def CCTV?

      It's not, however, hard to imagine that I just want to have sex, that I went to the bar to pick up a partner and that was that.
      And it's not hard to imagine that you just gave me money instead of stealing it.  If I want to argue that in a theft case, though, I have to prove my claim, and it's heard on the preponderance of the evidence.  It should be no different on consent in rape cases.
      •  Still not buying this (0+ / 0-)

        Which is more common:

        a.) a person wanting to have sex or b.) a person who likes to get beaten half to death and have a bottle shoved up their butt?

        a.) a person who wants to have sex or b.) a person who gives complete strangers the contents of their wallets?

        You seem to be arguing for a justice system where if, say, a fellow had a heart attack behind the wheel of his car, and plowed into a fruit market, that he would have to prove (in addition to everything else) that he was merely out for a Sunday drive instead of actively looking to plow his car into a fruit market and murder people, because apparently both are equally plausible.  They're not.

        If a person goes to a bar on a Saturday night, it is reasonable to assume that he wants to drink and pick up a partner.  It is not reasonable to assume that he's a rapist.  

        I know that women have good reason to fear men.  I know that bad men are responsible for this, and good men have to be ready to keep the scum in line.  It is unreasonable, though, to put all of the good men in jeopardy because of the bad men.  

        You said, in reference to my points:

        Do you think we live in some sort of world where every bedroom and alleyway is on high-def CCTV?
        I guess you think this, because without that, how would any man, anywhere, be able to prove that sex was consentual?  If this were the law, I'd advise every man, everywhere, to record ever sex session they have, just in case.  

        Are you saying that the woman need prove nothing about her allegation, or that the case should proceed with nothing but circumstantial evidence?  If the woman shows a ripped skirt, for example, was that because she had it violently removed, or was that because the guy was a klutz?  

        Take the other side for a minute.  Pretend you're a man.  Pretend you went to a bar, picked up a woman, went back to her place, and had sex.  You got her phone number and she got yours.  Three days later, the cops come a-knocking and she says that she was raped.  But you know that it was consentual.  No weapons to recover, no recordings.  How would you, how could you, prove to a court that the sex you had with someone was consentual, if you had to?  

        •  What Rai will argue.. (1+ / 0-)
          Recommended by:
          Dr Swig Mcjigger

          Is that it's totally fair because the man need not prove his innocence. She still has to "prove" he's guilty, just not beyond a reasonable doubt.

          Her proposal: If it is established that they have sex, instead of beyond a reasonable doubt, she want the "preponderance of evidence" (a 51% threshold used in civil cases) to decide the outcome of the case.

          So, in a nutshell, if a jury decides there's a 51% chance the sex was not consensual, she wants you thrown in prison for decades - perhaps life.

          Please proceed, Governor.

          by USArmyParatrooper on Thu Jun 20, 2013 at 03:45:44 AM PDT

          [ Parent ]

  •  Perhaps sentences are part of the problem. (0+ / 0-)

    The sentences for sexual assault are long and harsh compared to those for nonsexual assaults. Sentences for simple assault are generally 30 days. Sentences for aggravated assault are typically 1 or 2 years. Rape, however, can result in a life sentence and, until 2008, it was punishable by death in some states. Louisiana, for example.

    With such extreme penalties, it seems wise for the charge not to be taken lightly and for the imposition of a high burden of proof.

    A waist is a terrible thing to mind.

    by edg on Wed Jun 19, 2013 at 10:36:46 PM PDT

    •  The burden of proof is the same. (0+ / 0-)

      As with all criminal cases, beyond a reasonable doubt.

      Please proceed, Governor.

      by USArmyParatrooper on Wed Jun 19, 2013 at 10:40:34 PM PDT

      [ Parent ]

      •  Which is NOT the standard applied (0+ / 0-)

        to defense theories, like "I'm insane", "it was self defense", and yes, "she consented" in most examples (for example, "she willingly gave me her purse").   Which has been documented and referenced above.

        •  Apples and Oranges. (0+ / 0-)

          In the "I'm insane" defense it is not challenged that a crime was committed.

          Nobody can legally consent to being killed. I'm actually on the fence for raising the threshold to beyond reasonable doubt in self defense cases. In most states that IS the threshold under certain conditions, such as when someone breaks into your home.

          Theft must be proved. If a woman calls the police claiming a stranger snatched her person, and then they find the person matching her description with possession of her purse, he would be hard pressed to establish reasonable doubt by claiming she "gave" it to him.

          Please proceed, Governor.

          by USArmyParatrooper on Thu Jun 20, 2013 at 01:49:18 AM PDT

          [ Parent ]

      •  The burden of proof is hardly the same. (0+ / 0-)

        A rape conviction requires a jury to completely believe the word of the victim, often without other evidence or with only evidence that sex occurred but no evidence of consent or lack of consent. Would a jury take my word for it if I said you stole my wallet and there was no other evidence than my testimony that you did it?

        A waist is a terrible thing to mind.

        by edg on Thu Jun 20, 2013 at 11:04:48 AM PDT

        [ Parent ]

        •  Burden of proof are EXACTLY the same. (1+ / 0-)
          Recommended by:
          andalusi

          All elements of the crime must be proved beyond a reasonable doubt.

          The burden of proof being the same doesn't mean they're equally difficult to prosecute. It just means the legal standards are the same.

          Please proceed, Governor.

          by USArmyParatrooper on Thu Jun 20, 2013 at 02:47:11 PM PDT

          [ Parent ]

    •  I think that's a good point, but in a different (0+ / 0-)

      way.  Typically when people come to terms with the scale of the problem, their "solution" is just to rally for harsher sentences for rape.  But I don't think it really makes a difference whether the term is 1 year or 100 years - people do it because they pretty much have impunity.  I think the focus has been laid entirely on the wrong aspect.

      •  Impunity (0+ / 0-)

        I would disagree with the word impunity. Most rapes have consequences for the rapist. Sometimes the consequences are too light. But that is not the same thing as impunity.

        A waist is a terrible thing to mind.

        by edg on Thu Jun 20, 2013 at 10:59:18 AM PDT

        [ Parent ]

  •  Curious, though stepping amongst vipers... (0+ / 0-)

    If someone truly believes consent is being given (own drunkenness, self absorption, or something else giving them the impression, in the absence of active dissent, that the other party is willing)... how can there be Mens rea?

    •  been a while since crim law (0+ / 0-)

      But I do recall reasonable belief of consent as a valid defense (at least in some jurisdictions). This would be an affirmative defense, which means that the defendant would have to offer up evidence to support his or her argument that he or she had genuine and reasonable reason to think the victim consented.  

      The rule in California was (and may still be) that this cannot be a negligently held belief; neither can the belief be based on consent given in the past.

      That's my understanding as someone who doesn't practice criminal law. I will happily defer to any of the knowledgeable criminal law experts in this thread.

  •  Hmm... (0+ / 0-)

    If I stole something from a girlfriend and she pressed charges don't you think I could plausibly use the claim that she consented to me having the object?

  •  Rei, thank you for this diary & discussion (0+ / 0-)

    I just really want to thank you for presenting this perspective and the supporting citations, and for making argument and engaging so thoughtfully and rationally in discussion. I am really glad you are advancing these concepts -- and especially, gently and insistently defending them against their detractors. I find some of the detractors to be obnoxious -- not necessarily in their communication styles but in their actual perspectives, and you have handled all with intelligence and grace.  

  •  Rape (0+ / 0-)

    there is a fundamental flaw in this analysis probably because the writer has no experience in the criminal courts or with rape prosecutions or with how crime is defined. Rape is a crime that doesn't carry a specific mens rea or intent to commit the crime. Instead it has the element of lack of consent. If the crime required mens rea or specific intent to rape it could be defended on mistake of fact (I thought she consented), lack of intent to rape, or many other avenues of defense. But instead it is predicated on lack of consent. That puts the mental element into the head of the alleged victim instead of the defendant. This shifting of the intent element was done to make it easier to convict rather than more difficult. If we re-engineer rape statutes and put the mental intent back into the mind of the defendant there will be less rather than more convictions. In addition this article as many others just repeats statistics that are inaccurate (25% of all women will be raped) and not based on any legitimate examination.

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