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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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  •  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:
        Em

        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.)

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