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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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  •  Presumptions (0+ / 0-)
    I don't think you'r'e correct about the standard
    I cited a book which cites numerous sources and court rulings.  And it's easy to demonstrate who bears the burden of production anyway.
    First you gave the example  of BDSM sex, which is an extreme example and in fact, in the case of BDSM sex, the presumption is not that a person consented. The presumption is that a defendant is not guilty until proven innocent.
    If you are declaring by your last statement that the establishment of consent requires the beyond a reasonable doubt standard and that the prosecution bears both burdens, then you're declaring that the prosecution must prove beyond a reasonable doubt that the person did not consent to BSDM sex, and the prosecution bears both burdens in doing so.  Which is a presumption that the person consented which must be disproven.  If you don't like this presumption, then you should argue for changes in the burden and/or standard for the establishment of consent, as I and the cited book are doing.
    In the case of somebody being not in a position to give consent (for example, Steubenville) the prosecution has to prove the person could not give consent
    Correct - one way to prove a lack of consent is to prove that the victim was unable to give consent.

    In the real world, 99% of the time this is not possible.  Alcohol and date rape drugs are not always used.  The presence of alcohol or date rape drugs doesn't mean that the person was at the time of sex incapacitated to the degree of not being able to consent.  Alcohol and date rape drugs rapidly leave the system and are very difficult to test for.  Victims often do not report immediately, and with alcohol and some date rape drugs the person typically will not have their full wits about them until the alcohol levels are low again or the drugs are fully   of their system.  Rarely are witnesses good for anything other than circumstantial evidence.

    So yeah, that's great for the Steubenville.  Now for the 99%?

    And back to the basics:

    * There is a massive problem with sexual assault with impunity in most of the world that has gone largely unaddressed.
    * There is a massive problem currently in terms of prosecution of rape versus prosecution of other crimes, with the balance on the scales of justice far too far in favor of underprosecution than overprosecution.  This should be remedied.
    * There is already a well-documented balance in favor of believing the arguments of defendants in rape cases, regardless of the legal standard applied for evaluating their claims.
    * The problem of underprosecution stems from the misapplication of a standard used for establishing the facts of a case to what should be treated as a defense argument ("she consented").
    * "Beyond a reasonable doubt" is seldom applied to defense arguments unrelated to basic facts of the case - aka, "I'm insane", "It was self defense", etc.  The defense typically bears the burden to prove their arguments for why the established facts are as they are, with a "preponderance of evidence" standard.

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