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View Diary: Beyond A Reasonable Doubt: Applying The Wrong Legal Standard To Establishing Consent in Rape Case (167 comments)

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  •  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:

            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.,

            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).

            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-)
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              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-)
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        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-)
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          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-)
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            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:

              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-)
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                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-)
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        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:

            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.


            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:

          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-)
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        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-)
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      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.

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