Skip to main content

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

Comment Preferences

  •  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 ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site