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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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  •  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-)
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          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"?

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