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View Diary: He Doesn't Believe There's a"Rape Culture" (208 comments)

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  •  So you think the legal standard for doubt... (0+ / 0-)

    ... for capital crimes is the same as the one for petty theft?  There are many possible legal standards for doubt one can use - 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.

    Of course people always deserve the premise of "innocent until proven guilty".  Of course it falls to the state to prove someone's guilt instead of them having to prove their innocence*.  But there's a good debate to be had about what the standard of "doubt" to be used by the jury for different kinds of crimes can be, and all the evidence in the world that due to cultural biases, it's way too high concerning rape.

    * There are a couple exceptions in British law at least that I think are fair, in that the state still has to prove specific circumstances, but once those circumstances are proven, the burden can shift to the defendant.  For example, in rape cases, if the state can prove that the situations were one of several categories where the concept of consent being present are exceedingly unlikely, the burden then shifts to the defendent to prove that consent was given.

    •  These standards you cite (1+ / 0-)
      Recommended by:
      Sparhawk

      are for different stages of a criminal proceeding. There is logically, a lesser standard to make an arrest, get an indictment, obtain a search warrant etc. then there is to convict a person, possibly depriving them of their liberty and permanently stigmatizing them with a criminal conviction record.

      •  Not true. (0+ / 0-)

        Different courts use different standards.  For example, civil trials in the US have the standard, "preponderance of the evidence" to get a conviction.  It varies country to country as well.  There is no one single standard that must always be used in every country, in every court, for every accusation, as ruled by God from on high.  The selection of a standard of doubt is a process of balancing the rights of the accused and the likelihood of their wrongful conviction with the public interest in preventing harm to the community.

        And I think that it's pretty damned obvious that in the case of rape, this balance is all out of whack.

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

          You don't get convictions in civil trials.  You get liability, which is why you get a lower standard. In civil cases, you are dealing primarily with monetary damages or perhaps determination as to ownership of property. No one will go to jail or sentenced to death in civil cases, which is why we can have that lower, easier to establish burden of proof. In civil cases, it is always beyond a reasonable doubt with very good reason.  

          •  Who cares what it's called? (0+ / 0-)

            It's a different standard of doubt for a different type of trial where the balance of interests is different, which is thus proof that all kinds of trials need not have the same burden of proof.  In fact, in some types of US civil trials, the burden shifts from "preponderance of the evidence" to "clear and convincing evidence".  And there's been a push for the standard in capital criminal cases to be "beyond a shadow of a doubt".

            And in case you didn't notice, the US isn't the only country on the Earth with the only judicial system on Earth.  I already gave the example of the shifting burden of proof in the English judicial system.   Do I need to go into more countries?

            To reiterate: There is no inherent reason that rape trials must use the same legal doubt standard as, say, a murder trial.  Bring it back to first principles here: what is the purpose of a trial?  Why do we choose the rules and standards that we do?  When take from a basic perspective, one can clearly see that the current standard is failing the basic principles of a functioning judicial system on the side of protecting the public interest.  This warrants reform.

            •  The legal system for one (2+ / 0-)
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              Sparhawk, burlydee

              More to the point, if you are going to pontificate on our legal system and how it should be changed, you ought to at least understand how it works.
               As for this:

              And in case you didn't notice, the US isn't the only country on the Earth with the only judicial system on Earth.  I already gave the example of the shifting burden of proof in the English judicial system.   Do I need to go into more countries?
              I've noticed. We've been through this before. I don't care about other legal systems. We have ours. It isn't perfect, but it does work and is better than most that exist or ever have existed. Going into more countries is irrelevant,since we are dealing with our system. There are other countries were men can legally marry ten year old girls, where the right to divorce is not reciprocal and where woman can be executed for adultery.
              To reiterate: There is no inherent reason that rape trials must use the same legal doubt standard as, say, a murder t
              rial.  
              Yes there is. It is called due process of law, part of which is to ensure that the accused have a right to a fair trial and the overall theory of limited government whereby it ought to be difficult for the government to put an individual in prison, possibly for life, for conviction of a crime. If we use beyond a reasonable doubt for the ultimate crime, murder, we certainly should use it for rape.
              •  Reasonable doubt about rape (1+ / 0-)
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                madhaus

                Men and women differ about what constitutes reasonable doubt in rape cases.  In rape cases, I am guessing that proof and legality is skewed toward a male's understanding of what goes on between men and women, and possibly without any understanding or sympathy for the idea that a woman is having a completely different experience than the man.

                •  I don't know that this is true (1+ / 0-)
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                  Sparhawk

                  Males on juries have voted to convict men of rape and women have voted to acquit. I've never seen any evidence that what you suggest is true
                  Of course, men and women, blacks, whites, young and old might have different opinions about what constitutes reasonable doubt on any number of matters. That's part of the system and we can't change this by tinkering with a bedrock principle of justice in our country. I am still not seeing any reason why a particular type of defendant should be stripped of one of the most fundamental protections in our criminal judicial system.

                  •  Of course (2+ / 0-)
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                    Dr Swig Mcjigger, madhaus
                    Of course, men and women, blacks, whites, young and old might have different opinions about what constitutes reasonable doubt on any number of matters.
                    I agree.

                    But you are overlooking my premise that our society (and our justice system) is skewed toward a male experience of the world.  How much of Women's experience of the world do you suppose has informed the history of jurisprudence?

                    •  That is a fair point (2+ / 0-)
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                      FrenchUltramarine, Sparhawk

                      a lot, probably almost exclusively at the beginning. But its also true that this has changed a great deal as well and will continue to do so, it is to be hoped. Society is changing and you are in fact getting prosecutions and convictions in cases that you would not have gotten not all that long ago. I expect that this trend will continue as society evolves. Men's understanding of the issues is part of it as is getting more female judges, prosecutors, and leglislators.

              •  Got it. (0+ / 0-)
                We've been through this before. I don't care about other legal systems. We have ours. It isn't perfect, but it does work and is better than most that exist or ever have existed. Going into more countries is irrelevant,since we are dealing with our system.
                Got it.  America is the bestest and greatest land that ever existed, and no need to see what all of those idiot foreigners are doing, and no need to change anything because hey it's worked fine for me and my kind in ages past.!

                Hint: that philosophy you're espousing is known as "conservatism".

                If we use beyond a reasonable doubt for the ultimate crime, murder, we certainly should use it for rape.
                If the "reasonable doubt" standard is convicting 70% of murderers and 5% of rapists, clearly they should NOT be using the same standard.
                •  Or to put it another way, if we treated murder (0+ / 0-)

                  cases the way we treated rape cases, the prosecution would have to face the burden of proof to prove that the murder victim did not in fact want to be killed, and the jury would be highly disbelieving of this fact and readily convinced that the victim "asked to die".

                  •  No (0+ / 0-)

                    Because you can't consent to being murdered. You can consent to having sex. They are two very different crimes, but the burden of proof the prosecution has to meet is the same for good reason.

                    •  You can't *legally* consent to be murdered. (0+ / 0-)

                      But that just means that you're using the existing law to argue that the law must be the way it is.  It's a circular argument.  My whole point was that the default assumptions for whether someone was murdered are so much lower than for rape.

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