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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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  •  The problem here is the constitutional (1+ / 0-)
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    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?

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