Searching For Proof Of Resistance To Rape

That’s what too many people still want before they accept that a rape happened. Some of those will be generous and forgive rape victims for not resisting if a weapon is involved and that weapon is being controlled by a stranger.

Many people won’t believe boys and men are rapists if they take sex without going through a stage where the victim shows stereotypical resistance such as scratching at the rapist’s eyes or screaming non-stop. That a victim was sexually violated doesn’t matter, the rape must happen in a way that the victim’s response traumatizes the rapist.

The premise is that if the rapist isn’t traumatized neither is the victim.

The excuse for this is a warped version of reasonable doubt. The doubt becomes not whether the person committed the crime, but whether the person who did the crime is a bad person who sets out to hurt others. Maybe it was nothing more than an honest mistake.

To use the consent defense, what is needed is not proof of lack of consent (stereotypical resistance) but proof that the alleged victim gave true, legal consent. If the alleged rapist says the alleged victim consented then proving that claim should be the defense team’s burden. Unfortunately, many legal statutes are written with the bias favoring men who exploit vulnerable girls and women. Being vulnerable becomes defacto consent.

The sexual violation just happened. A no-fault rape, at best. At worst, the victim had it coming or is delusional because she sees sexual violation where none existed.

To understand the warped view of rape where the defense says it was consensual, think about embezzlement cases. It doesn’t matter whether the embezzler acted from pure greed or to punish the person he embezzled from. What matters is the embezzlement itself. The person took funds he (or she) wasn’t authorized to take. Jurors don’t ignore the evidence simply because the embezzler seems like a nice guy or because the victim trusted him and gave him access to the funds he stole. If the defense claims that the money was taken legally, it is up to the defense to counter the prosecution’s evidence of embezzlement. And if the proof were: “She didn’t say I couldn’t take that money from her” no jury would give that claim any merit at all.

But that’s exactly the logic people buy when they insist on proof of resistance in rape cases.

In addition, this betrayal from within is understood to be a trauma added to the financial loss. But in rape cases when a boyfriend rapes his girlfriend people frequently assume that this relationship reduces the trauma of rape to the point where some people would call her a liar if she calls herself a rape victim — even when they believe her version of events. She may even be told that she has no right to compare herself to someone who experienced the real trauma of rape.

The problem is that there is an assumption that girls and women have a rapist radar. She has to know what’s about to happen before her options run out. If she’s so careless that she doesn’t see trouble coming she’s the irresponsible one. Yet we don’t excuse or decriminalize embezzlement because the victim trusted the embezzler.

This expectation in rape cases is based on the very dangerous myth where people believe that all real rapists are total and obvious monsters and that some women have it coming to them.

Sometimes people attempt to erase proof of resistance to rape by recharacterizing what happened in a way that changes the underlying actions. “He asked her several times and she eventually agreed” sounds innocent while, “he wouldn’t let her out of the room until he got the sex he felt entitled to” shows premeditation and actions meant to overwhelm resistance.

The reason the first statement sounds innocent is that all signs of guilt have been purged. People will often claim they are properly summarizing the truth in their characterizations when in fact they are attempting to obscure the truth.

The same goes when people say a man was unfairly charged with rape after drunk sex. The characterization implies that both parties were equal participants.

This same deception by recharacterization is done toward those who advocate for rape victims. Calling non-violent rape real rape becomes calling all less than perfect sex real rape. Calling the exploitation of women too intoxicated to fight off unwanted sex real rape becomes calling all sex under the influence real rape.

Distort and then make a point about the distortion as if it isn’t a distortion.

When people who say they oppose all types of rape do this sort of distorting at the expense of rape victims what message does that send to rapists?

(crossposted at my blog, Abyss2hope)

Note: Comments are limited to feminists or those who can be respectful of feminists’ efforts to fight sexual exploitation. If you only want to excuse or minimize the behavior of those who harm others, make the person exploited responsible for their own exploitation, call those who label their experiences rape liars, or tell us that we should be focusing on more important issues, please do so elsewhere.

This entry posted in Rape, intimate violence, & related issues. Bookmark the permalink. 

196 Responses to Searching For Proof Of Resistance To Rape

  1. 101
    Dana says:

    If a friend accuses me of stealing a valuable item from their home, why can’t I say “well then, prove it wasn’t a present” and get off the hook?

    Because you have something that belongs to him or her.

    But that’s the whole point. I can say “I took this item/money from my friend yesterday because she gave it to me, and therefore I didn’t steal it” just as easily as someone could say “we had sex yesterday because she said we could, and therefore I didn’t rape her”. The problem is that people tend to believe the prosecutor in the first case and the defendant in the second case, with no reason to have a bias between them.

  2. 102
    mousehounde says:

    Even in cultures that punished rape with death without trial, rape continued.

    Which cultures would that be?

  3. 103
    Robert says:

    I believe pre-Republican and early Republican Rome, in cases where the patriarchal principle was in full force. A father who discovered a daughter in flagrante had pretty much the full option; he could do what he liked, including death without trial if he concluded that it had been rape, compelled marriage, go-away-and-shut-up-young-man, or “whoops, sorry kids, I’ll knock next time. Dinner in twenty minutes.”

    Nowadays family justice is a little more multipolar. That’s a good thing, for the most part.

  4. 104
    Kaethe says:

    Try going to the cops and saying, “I invited a guy into my house yesterday, and he didn’t leave until an hour after I asked him to,” and see how likely they are to make a trespassing arrest.

    I was thinking about this last night, and trespass is the best analogy so far. In this example, going to the police with nothing more than that is silly. Why would anyone want to? But I can very easily imagine going to the police because a guy had come over, and he had become scary and threatening and coercive, and he wouldn’t leave, and he wouldn’t let me near the phone, and he knows where I live, and what my car looks like, and I am terrified that he might come over again some time.

  5. 105
    Abyss2hope says:

    me:

    We can’t. The threat of incarceration is not a universal deterrent.

    That’s true, but right now most non-stranger rapists have little fear that they will be charged let alone incarcerated. Rapists are not born, they are made so what each person says about rape or what the standard of behavior is on a social and criminal level impacts rape. When rapists are slapped on the back for getting a “reluctant” person to go all the way, that rewards rape. When rape victims are told they caused their own rape or are responsible for preventing rape, that tells rapists that they will be excused if they pick the right victim and commit rape in more socially acceptable ways.

  6. 106
    Abyss2hope says:

    I noticed that me’s comment (#98) did not see the same flaw in Daran’s comment (#89):

    Those of us who are respectfully critical of the feminist stance assume that some defendants are innocent, and ask “how can we ensure that the innocent ones gets acquitted?”

    The only way to ensure that the innocent ones always get acquitted is to not prosecute a particular crime. Innocent people are convicted of murder, but nobody advocates for lack of enforcement because we see murder as a serious crime. But many people still dismiss the seriousness of many rapes (if she didn’t go to the hospital, it wasn’t a criminal rape) and seem to have no problem letting certain rapists rape again and again and again while scolding their victims for being careless.

  7. 107
    Brooklynite says:

    I was thinking about this last night, and trespass is the best analogy so far. In this example, going to the police with nothing more than that is silly. Why would anyone want to?

    I realized after I’d posted that my examples came out sounding less serious than I’d intended to. Let me take another whack at it:

    Someone taking something that doesn’t belong to you, or remaining in your house after you’ve made it clear that they’re not welcome, or assaulting you, is a big deal. But in the absence of witnesses, or physical evidence, or an ongoing dispute, the cops are in my experience not going to do much about it.

    The “ongoing dispute” part is crucial, I think. If someone has something of value that I claim belongs to me, a cop has a moral obligation to sort out that situation — he can’t just say “get over it,” because the crime is in a real sense still taking place. Likewise with trespass — if a cop has to arrest the trespasser to get him out of the house, he’ll do it. If he can get him out of the house without arresting him, or the trespasser leaves the house when he sees the cop coming, the cop may well choose not to arrest him once he’s out.

    A similar situation pertains in your example:

    I can very easily imagine going to the police because a guy had come over, and he had become scary and threatening and coercive, and he wouldn’t leave, and he wouldn’t let me near the phone, and he knows where I live, and what my car looks like, and I am terrified that he might come over again some time.

    That’s an ongoing situation, and it’s a situation that most cops would I think perceive as being much more analogous to stranger rape than date rape.

    I guess what I’d say is that date rape (and, to varying degrees, other kinds of acquaintance rape) falls into a broader category of crimes that cops and prosecutors tend to be hesitant to pursue aggressively. Yes, definitely, there’s a huge amount of sexism involved in how rape is dealt with by the legal system, but there’s other more insidious stuff going on as well. There are certain kinds of crimes that the system just isn’t oriented to deal with effectively.

  8. 108
    Abyss2hope says:

    Brooklynite:

    I guess what I’d say is that date rape (and, to varying degrees, other kinds of acquaintance rape) falls into a broader category of crimes that cops and prosecutors tend to be hesitant to pursue aggressively.

    From what I’ve seen the hesitancy is usually linked to lack of training at various levels of the criminal justice system and the way people treat certain rape victims–inside and outside of the criminal justice system.

    If the investigation is incompetent or hostile toward certain victims what should have been a solid case with real, credible evidence can turn into an unwinnable case. Then people see the preventable failure and either think it wasn’t preventable or is proof that the “rape” victim is a liar and that the rapist is innocent.

    The solution to incompetence is competence not shrugging off certain crimes as unenforcable.

  9. 109
    curiousgyrl says:

    mrs Xeno;

    yeah. also, who has ever gone to a bar for want of conversation, not want of sex? Just saying.

  10. 110
    Daran says:

    Me:

    Those of us who are respectfully critical of the feminist stance assume that some defendants are innocent, and ask “how can we ensure that the innocent ones gets acquitted?”

    Abyss2hope:

    The only way to ensure that the innocent ones always get acquitted is to not prosecute a particular crime.

    In an absolute sense, this is true, however I didn’t say “always”.

    Innocent people are convicted of murder, but nobody advocates for lack of enforcement because we see murder as a serious crime.

    Nobody’s advocated a lack of enforcement for rape in this thread, as far as I can see. What they and I have advocated is the burden of proof of the elements of the crime to lie with the prosecution, just as with the crime of murder.

    The fact that a crime is serious is not a reason to convict innocent people for it.

    But many people still dismiss the seriousness of many rapes (if she didn’t go to the hospital, it wasn’t a criminal rape) and seem to have no problem letting certain rapists rape again and again and again while scolding their victims for being careless.

    I’m not sure how this is responsive to anything I have said. In particular, I have done none of these things.

  11. 111
    Daran says:

    But that’s the whole point. I can say “I took this item/money from my friend yesterday because she gave it to me, and therefore I didn’t steal it” just as easily as someone could say “we had sex yesterday because she said we could, and therefore I didn’t rape her”. The problem is that people tend to believe the prosecutor in the first case and the defendant in the second case, with no reason to have a bias between them.

    I’m not sure that this is generally true. I think it would depend in part whether it was common for friends to give gifts of that particular nature in those particular circumstances. The defence might also investigate your friend’s history of gift-giving.

  12. 112
    Daran says:

    Abyss2hope:

    If the investigation is incompetent or hostile toward certain victims what should have been a solid case with real, credible evidence can turn into an unwinnable case. Then people see the preventable failure and either think it wasn’t preventable or is proof that the “rape” victim is a liar and that the rapist is innocent.

    Do you have any evidence that investigations are typically incompetent or hostile towards victims? (I’m not suggesting that they never are, of course.)

  13. 113
    Daran says:

    Me:

    It seems to me that the feminist side assumes defendants to be guilty, and asks “how can we ensure that they are convicted?” Those of us who are respectfully critical of the feminist stance assume that some defendants are innocent, and ask “how can we ensure that the innocent ones gets acquitted?”

    Abyss2hope:

    Actually, what the feminist side assumes is allegations should be treated as being as credible as any other allegation of a crime and that nice defendants should be treated the same as those who on the surface appear to be monsters when charged with committing the same crimes. We ask, “how can we ensure that rapists stop raping and that rape victims are treated with the respect and care they deserve rather than being treated like they committed a crime.”

    I’m not sure how this is responsive to what I said, unless you are suggesting that because what “the feminist side assumes” can be characterised in the way you described, it can’t be characterised in the way I described. See the following examples which illustrate a mindset that regards complainants as victims and defendants as perpetrators without any regard for the possibility that they might not be.

    ACS:

    The prosecution would no longer have to prove that the perpetrator knew that the victim did not consent — the prosecution would simply have to prove that the perpetrator did not care whether the victim consented, and was acting under circumstances under which they understood that having sex with a non-consenting partner might be a reasonable consequence of their actions. Under this standard, the actions of the victim, insofar as they do not, themselves, constitute an adknowledgement of consent to the specific acts alleged, are irrelevant.

    Mickle:

    It is not “whichever party I like” it’s whichever party doesn’t own the rights to the body the rapist is accused of using without consent.

    ACS:

    Sexual intercourse, the key act in rape, is, however, often done consensually. This means that after establishing that the preconditions of a crime occurred — that there was sexual intercourse, that that sexual intercourse was with the alleged perpetrator — you have to establish two more elements, which are that the sexual intercourse was non-consensual, and that the perpetrator knew, or should have known, that the intercourse was non-consensual. This means that, unlike murder, there are key elements of the crime that exist only in the mindset of the victim. This means that there is undue focus on the victim during rape trials: this is a feature of the elements necessary to prove the crime; something that must be reformed in the law before it can be reformed in the culture.

    I don’t think these are exceptional. It seems to be quite common in feminist discourse, both in generalised discussions about rape trials, and in specific cases of alleged rape.

    However, I don’t think it can be said of you (A2H) in particular, that you have this mindset. Not only do you recognise that in some cases the accused might be actually innocent, but also that they might end up convicted. Rather, you seem to regard this as acceptable collateral damage. I don’t agree.

  14. 114
    Daran says:

    BTW, would everyone who sometimes goes out to drink without any intention of jumping into bed with anyone at the bar please raise your hands ?

    How about the people who are disappointed, but not surprised, at the continual assertion that a woman drinking in public is probably there with the primary purpose of getting some guy to fuck her while she’s all woozy and stuff ?

    That’s a strawman. No one has suggest this.

    The point is that some women go out drinking with the intention of pulling a sex partner, and other women who go out drinking without this intention, nevertheless consent to sex with people they meet.

    Therefore it’s not inherently implausible for a defendant to alleged that this is what happened.

  15. 115
    Daran says:

    Apros:

    (yeah, as if they would really lie ab0ut something to get up on the stand to be cross-examined.)

    As Gwen pointed out, yes some women do. I venture to suggest that most false reports are filtered out of the system before they come to trial.

    One should also bear in mind that false complaints are not the only, nor even the main, reason why an innocent person may be put into the dock.

  16. 116
    Abyss2hope says:

    Daran:

    Nobody’s advocated a lack of enforcement for rape in this thread, as far as I can see. What they and I have advocated is the burden of proof of the elements of the crime to lie with the prosecution, just as with the crime of murder.

    Actually, many people do advocate for the lack of enforcement for the majority of rapes when they say that rapes committed by non-strangers with no outside witnesses or no recording of what happened shouldn’t be prosecuted. The excuse for this is reasonable doubt, but that attitude isn’t much different from countries that require 4 male witnesses for a charge of rape.

  17. 117
    Abyss2hope says:

    Daran:

    See the following examples which illustrate a mindset that regards complainants as victims and defendants as perpetrators without any regard for the possibility that they might not be.

    When discussing the prosecution of real rapes of course people are going to call the victim a victim and the rapist a perpetrator.

  18. 118
    Abyss2hope says:

    Daran:

    Therefore it’s not inherently implausible for a defendant to alleged that this is what happened.

    It may not be implausible for the defendant to allege that a woman went out looking for sex, but that says nothing one way or the other about whether she consented to have sex with him.

  19. 119
    Abyss2hope says:

    Daran:

    Not only do you recognise that in some cases the accused might be actually innocent, but also that they might end up convicted. Rather, you seem to regard this as acceptable collateral damage. I don’t agree.

    Actually, I don’t see the conviction of the innocent as acceptable collateral damage. But the solution to this problem — or more frequently the fear of this problem — shouldn’t be a lack of prosecution.

    Those charged with stranger rapes or those charged with murder are much more likely to result in the conviction of the innocent than rape charges where the identity of the alleged rapist is not in question.

    Real rapists who claim “it was consensual” are much more likely to successfully convince people they were falsely convicted when in fact they were guilty than someone who was falsely convicted of a brutal rape/slaying can convince those same people of the truth .

  20. 120
    Mickle says:

    Daran – inasmuch as ms-xeno’s comment seemed to me to be more about the attitude society has that any woman who is up for sex at all is up for any sex imaginable with any person imaginable, and how this attitude contributes to rape, I’m really don’t understand what the hell you think your’re saying in response to that

    Secondly, it’s polite to note when you’re the one that’s adding the emphasis.

    And last, context matters. I try to be very careful about using accused when it’s appropriate. While I’ll admit I should have in the quote you pulled – when one considers that I wrote that as part of a side discussion regarding cases like the recent OC trial, and how they show that the jury is often biased in favor of even obvious rapists, I think it’s a bit of a stretch to use that as proof that I assume all accused rapists are guilty.

  21. 121
    Megalodon says:

    It may not be implausible for the defendant to allege that a woman went out looking for sex, but that says nothing one way or the other about whether she consented to have sex with him.

    Defendants usually assert this in order to discredit the alleged victim’s assertion that she did not consent to the sexual act in question. The prosecution and the victim can argue that her actions preceeding the incident have no relevance about her assertions of consent or lack thereof. But sometimes juries think such matters may be relevant and may discredit the alleged victim’s claims.

  22. 122
    Daran says:

    Abyss2hope:

    Actually, I don’t see the conviction of the innocent as acceptable collateral damage. But the solution to this problem — or more frequently the fear of this problem — shouldn’t be a lack of prosecution.

    The solution to the problem is the same as for every other crime – the presumption of innocence and the corresponding prosecutorial burden of proof.

    Police and prosecutors should not proceed with cases where there is no prospect for meeting that burden. As a practical matter, that is likely to include many so-called “he said/she said” cases. I don’t see a way around that.

    There is certainly scope for refining legal definitions (perhaps along the lines I outline here), for tackling the technicalities which lead to some meritorious cases collapsing, and the prejudices that can lead to wrong verdicts (in both directions).

    One such prejudice, I should mention, which forms the backdrop of the feminist position in these discussions, is the belief, unsupported by evidence, that false reports of rape are extremely rare. The opposite belief, that they are common, is a typical antifeminist position. There is some evidence for this position, but it is weak, and typically misrepresented by them (for example) Both sides fail to appreciate that innocent people may be prosecuted and convicted for reasons other than false complaints.

    Those charged with stranger rapes or those charged with murder are much more likely to result in the conviction of the innocent than rape charges where the identity of the alleged rapist is not in question.

    Do you have any evidence for this?

    Real rapists who claim “it was consensual” are much more likely to successfully convince people they were falsely convicted when in fact they were guilty than someone who was falsely convicted of a brutal rape/slaying can convince those same people of the truth .

    All the cases I’m aware of where a false conviction has been overturned have been on the grounds that the accused did not commit the alleged act. None have been on the grounds that the alleged victim actually consented. However this reflects no more than the difficulty in meeting the reversed burden of proof faced by those seeking to overturn a rape conviction. The innocence project, in particular, won’t take on cases which turn on consent only.

    So while it may be true (or it may not) that those convicted of rape (both actually innocent and actually guilty) whose claim to innocence turns on consent may find it easier to find people to believe them, this does not lead to their convictions being overturned.

    (Even those who are able to prove that they did not commit the act for which they were convicted have extreme difficulty in persuading the system to overturn their convictions, as an examination of a few case studies will show. This problem is not limited to rape.)

  23. 123
    ms_xeno says:

    Mickle:

    Daran – inasmuch as ms-xeno’s comment seemed to me to be more about the attitude society has that any woman who is up for sex at all is up for any sex imaginable with any person imaginable, and how this attitude contributes to rape, I’m really don’t understand what the hell you think your’re saying in response to that.

    Nor I, Mickle. Perhaps I’m too subtle, though. Point blank, Daran, Robert, Whoever: I’m really fucking sick of every damn debate about rape centering on a scenario involving a drunk/horny woman (because in the magic parallel universe of debates on this issue it seems that every horny woman gets drunk to get laid and every drunk woman is simply unfocussed horniness in need of a man to focus her properly) and anonymous or quasi-anonymous sex. I think that one of the reason so many posters feel the need to distort and/or pick apart the scenario BB used (and that Abyss and Maia referenced) is that they simply can’t bring themselves to admit that two drunk hetero strangers (or near-strangers) in a bar is not some kind of ubiquitous scenario when it comes to real-life incidences of rape.

    Really damn sick of this assertion. Come to think of it, also I’m really damn mortified at the thought that if my husband is out of town, and I go out for a nice quiet beer and a breath of air, some man I was speaking to could decide to drug me and rape me– with the “good men” (well mostly men) in the recent spate of threads doing these oh-so-routine moral gymnastics to persuade themselves that I’d just been out drinking and screwing on purpose. Otherwise, why wasn’t I at home awaiting mr_xeno’s return, like a good wife would ? Why wasn’t I in a coffee shop ? At a goddamn Disney movie ? Why why why… Shit.

    This is the sort of mentality most women probably face en masse when they decide whether or not it’s worth it to do anything about a rape but just try to suck it up and forget about it.

  24. 124
    Abyss2hope says:

    Daran:

    The solution to the problem is the same as for every other crime – the presumption of innocence and the corresponding prosecutorial burden of proof.

    I disagree that this is the solution to false convictions since they can happen with these two items.

    Incompetent representation, misconduct (coerced confessions) and technical mistakes (loss of exonerating DNA) can obscure evidence that would show the jury that there is reasonable doubt about the defendant’s guilt.

    Yet when many people talk about the conviction of the innocent they claim the problem is women who report being raped.

  25. 125
    Abyss2hope says:

    Daran:

    None have been on the grounds that the alleged victim actually consented. However this reflects no more than the difficulty in meeting the reversed burden of proof faced by those seeking to overturn a rape conviction.

    What evidence do you have to back up this claim that men who have used the “it was consensual” defense have been falsely convicted because the sex was consensual other than the fact that the Innocence Project won’t take on these types of cases?

  26. 126
    Daran says:

    Abyss2hope:

    What evidence do you have to back up this claim that men who have used the “it was consensual” defense have been falsely convicted because the sex was consensual other than the fact that the Innocence Project won’t take on these types of cases?

    Read what I said again; I made no such claim.

    My claim is that I am aware of no case in which a person convicted of rape, whose defence was “consent”, has been able to overturn their conviction.

    Do you dispute this claim? If so please cite such a case.

    I further claim that “this reflects no more than the difficulty in meeting the reversed burden of proof faced by those seeking to overturn a rape conviction.” There are basically two grounds on which a person may appeal: Procedural, and “Actual Innocence”. A procedural appeal may succeed in cases where, for example, the prosecution failed to turn over exculpatory evidence to the defence. But if the evidence only turned after the trial, the defence doesn’t have that ground. If it is able to argue that the new evidence proves the defendant didn’t commit the crime, he may (eventually) prevail on grounds of “actual innocence”. But the burden of proof lies with the defence.

    Do you dispute any of this?

    Note that nowhere does the above argument depend upon there actually being any cases of actual innocence among those whose defence is “consent”. I think it is highly likely that there are, indeed it would be extraordinary if the system, with its demonstrated failings in every other respect, should have a 100% record in correctly deciding consent. If you wish to claim that this is so, then I suggest that the burden of proof lies with you.

  27. 127
    Daran says:

    I disagree that this is the solution to false convictions since they can happen with these two items.

    Incompetent representation, misconduct (coerced confessions) and technical mistakes (loss of exonerating DNA) can obscure evidence that would show the jury that there is reasonable doubt about the defendant’s guilt.

    This is all true. I would add “mistaken identification” and “false incrimination by other defendants/convicts” to the list of significant factors resulting in false convictions. False witness testimony (including false testimony by complainants) is very low on the list.

    It seems to be fairly obvious that, faced with incontrovertial evidence of Elements 1 to 3 of the crime, many actually guilty defendants will falsely claim consent. What’s much less clear is how many defendants there are who are actually innocent on the grounds of consent. Probably not very many that are actually prosecuted, but that is because the system weeds out cases unlikely to succeed before they reach court.

    Yet when many people talk about the conviction of the innocent they claim the problem is women who report being raped.

    This has not been my argument.

  28. 128
    Daran says:

    Point blank, Daran, Robert, Whoever: I’m really fucking sick of every damn debate about rape centering on a scenario involving a drunk/horny woman…

    So take it up with whoever introduced the scenario; it wasn’t me.

    (because in the magic parallel universe of debates on this issue it seems that every horny woman gets drunk to get laid and every drunk woman is simply unfocussed horniness in need of a man to focus her properly) and anonymous or quasi-anonymous sex.

    Feel free to cite anyone in this discussion who has claimed this, because as far as I can see nobody has. The argument is that because some women behave like this (and they do), it is a potentially plausible scenario which the defence is entitled to put forward. The fact that you, curiousgyrl, and no doubt other women here don’t behave this way is of no significance.

    I think that one of the reason so many posters feel the need to distort and/or pick apart the scenario BB used (and that Abyss and Maia referenced) is that they simply can’t bring themselves to admit that two drunk hetero strangers (or near-strangers) in a bar is not some kind of ubiquitous scenario when it comes to real-life incidences of rape.

    I’m not sure which scenario you’re talking about, or who BB is. (Biting Beaver? Big Brother? Bjorn Borg?)

  29. 129
    Daran says:

    Mickle:

    Daran – inasmuch as ms-xeno’s comment seemed to me to be more about the attitude society has that any woman who is up for sex at all is up for any sex imaginable with any person imaginable, and how this attitude contributes to rape, I’m really don’t understand what the hell you think your’re saying in response to that

    Here’s what ms-xeno said:

    BTW, would everyone who sometimes goes out to drink without any intention of jumping into bed with anyone at the bar please raise your hands ?

    How about the people who are disappointed, but not surprised, at the continual assertion that a woman drinking in public is probably there with the primary purpose of getting some guy to fuck her while she’s all woozy and stuff ?

    My emphasis.

    My reply:

    That’s a strawman. No one has suggest this.

    For an “assertion” to be “continual” it must have been asserted at least twice. Can you cite two places in this thread where it has been asserted that a women who drinks “is probably there” to have drunk sex? Can you cite even one?

    Let me help you out. there are people who go out with the specific plan of getting really drunk or high or whatever and then having sex (or going out to get drunk with the thought that perhaps they’ll end up having sex).”

    Nothing there about this being the probable reason for a women to be drinking in public.

    Secondly, it’s polite to note when you’re the one that’s adding the emphasis.

    I apologise.

    And last, context matters. I try to be very careful about using accused when it’s appropriate. While I’ll admit I should have in the quote you pulled – when one considers that I wrote that as part of a side discussion regarding cases like the recent OC trial, and how they show that the jury is often biased in favor of even obvious rapists, I think it’s a bit of a stretch to use that as proof that I assume all accused rapists are guilty.

    That was never my claim. The claim is “the feminist side assumes defendants to be guilty”, not that Mickle does, (or even that Mickle is a feminist; I consciously avoid labelling people, which is why I used the “feminist side” formulation. You’ve been arguing on that side, in this thread, on this topic, regardless of how you self-identify or argue on other topics in other places.)

    When I make claims like this, I try to support them with cites. That’s my way of avoiding strawmen: if I can’t easily find examples of the arguments or behaviour I’m criticising, then that might be an indicator that I’ve misinterpretted. In this case, the examples were easy to find, and one of them happened to be you. It wasn’t personal.

    I’m glad to hear that you try to be careful about using “accused” where it’s appropriate.

  30. 130
    Daran says:

    Ak: Borked the link. It was supposed to be to this post.

  31. 131
    Daran says:

    When discussing the prosecution of real rapes of course people are going to call the victim a victim and the rapist a perpetrator.

    Mickle has acknowledged that s/he should have said “accused” in the context.

    It is certainly possible to discuss a trial from the viewpoint of an actually guilty defendent, an actually innocent one, a rape victim, a false accuser, or a witness (true or false) who knows what happened. The problem arises when you discuss a trial from a viewpoint in which the issue is not known. The three examples I cited were from such a viewpoint.

    I’m sure you would object to the blanket characterisation of complainants as “false accusers” (as would I).

  32. 132
    ms_xeno says:

    Daran:

    The fact that you, curiousgyrl, and no doubt other women here don’t behave this way is of no significance.

    Why ? How can it not be signifigant when there’s such a huge disparity in how society scrutinizes a woman’s behavior when she reports rape and how it scrutinizes the man who raped her ? I also fail to see what difference it makes who uses these scenarios in question and who simply perpetuates them.

    Yes, I was talking about Biting Beaver, and yes, now you’re just acting like an asshole.

  33. 133
    Jake Squid says:

    The claim is “the feminist side assumes defendants to be guilty”…

    Cites, please.

    Actually, why bother? That is so, so false. The issue that feminists are discussing, the point that they are making, is that women should not have their reports of rape dismissed for the extremely weak reasons often used to dismiss a woman’s claim (drunk, didn’t fight/leave marks on defendant, didn’t wear underwear, etc).

    The fact that you are claiming this is the feminist position indicates that you didn’t read the note (about who this thread is limited to) at the bottom of the post and that you have not comprehended the subject of Abyss2hope’s post.

  34. 134
    Megalodon says:

    I also fail to see what difference it makes who uses these scenarios in question and who simply perpetuates them.

    Then are you saying that defendants cannot suggest an alternate scenario of events because the posited alternate scenario may tend to confirm a pejorative stereotype about a class of persons?

  35. 135
    Abyss2hope says:

    Megalodon:

    Then are you saying that defendants cannot suggest an alternate scenario of events because the posited alternate scenario may tend to confirm a pejorative stereotype about a class of persons?

    No, the defense shouldn’t be allowed to make “suggestions” that rely on stereotypes. The word “suggest” reveals that the defense is attempting to lead the jury to believe something not based on the specific evidence of the case.

    As I said in a previous comment the fact that a woman goes to a bar looking for sex has no bearing on whether she consented to have sex with the defendant. What it does reveal is motivation for rape. “She had no right to say no to me, not when she was looking for sex.”

    Since too many people still share this belief that some women lose the right to say no or the ability to say no or that raping certain women doesn’t cause any harm, this strategy can work on some jury members so they deny the reality of the evidence they are presented.

  36. 136
    Megalodon says:

    The word “suggest” reveals that the defense is attempting to lead the jury to believe something not based on the specific evidence of the case.

    So defendants cannot make exculpatory claims or submit alternative scenarios unless they have corroborating evidence of those? Or does this evidence requirement only apply to exculpatory claims that have the implication of reinforcing a vicious stereotype about classes of persons?

    Defendants usually do not posit alternative scenarios by outright testifying in their own defense, though they certainly have the option of doing so. When defense attorneys cross-examine and attempt to discredit prosecution witnesses, their questioning often does carry an implied alternative non-criminal scenario of the events. When questioning the alleged victim about his/her whereabouts, when the crime ended, the details of the crime, and trying to find inconsistencies, the defense attorney is implying to the jury, “see, these inconsistencies suggest that this alleged crime may not even have happened.” When they ask the alleged victim about his/her possible prior dishonesty, mental history, or proximate behavior surrounding the incident, the implication is “this person may be lying and it might have been consensual.” The jury is free to reject these implications and believe the complaining witness, but sometimes they don’t and doubt is raised.

    If you are saying that defendants cannot posit alternate scenarios without supporting evidence, then cross-examination is dead. Under this evidentiary requirement, is the judge supposed to say to the defense attorney, “Wait, your questions are implying that there was no sexual encounter at all. Do you have supporting evidence that your client had no sexual encounter with the victim? Then sit down, your questioning is over,” or “Your questions are implying that the sexual encounter may have been consensual. Do you have supporting evidence that is was consensual? No? Then sit down, your questioning is over.”

    Cross-examination attempts to discredit a presented version of events. In doing so, it necessarily implies that an alternate version of events may have occurred, though defendants have never had the burden to present and prove an alternate version of events. If defendants now have an evidentiary requirement to support their alternate suggestions, I don’t see how cross-examination is possible, or how “innocent until proven guilty” is tenable.

    A little clarification on your standard of specific evidence in the case? Does your requirement that suggestions be “based on specific evidence of the case” only apply to defense claims? Does this standard apply to the alleged victim’s and prosecution’s claims? This would the the case when there is evidence in addition to alleged victim’s accusations, fluids, injury, etc. However, as we’re all well aware, there is often no physical evidence left in rape cases, due to the rapist’s caution or that many victims do not report it until well after any physical evidence has dissipated, due to their fear and trauma. But even when there is no physical evidence, or supporting witnesses, a victim’s sole testimony can indeed constitute prima facie evidence to sustain an indictment and a conviction. Does the fact that the victim has no corroboration besides her assertion of being raped mean that her claim should be dismissed and thrown out of court? I hope not. She should be able to present it, but of course, the defense gets to attempt to discredit it. If an alleged victim can present her version of events with only her testimony as support, but the accused must have outside corroborating evidence to back up his “suggestions,” this really does seem to be a reversal of standard common law burdens.

    No, the defense shouldn’t be allowed to make “suggestions” that rely on stereotypes.

    You seem to be suggesting that if defendants imply or submit an alternate story without external corroborating evidence and it reflects pejoratively on a class of persons, it is based upon stereotypes and is invalid. Let’s say a woman is arrested for shooting a man. Let’s say the man happened to be a member of a racial minority. The woman claims in her own defense that the man was attempting to sexually assault her and she was defending herself. Should the prosecution ask, “Do you have evidence besides your assertion that he was trying to assault you?” She answers, “No, I shot him before he could injure or rape me!” Should the Court then say, “your self-defense claim has no corroborating evidence outside of your assertion. Men who are members of racial minorities are often stereotyped as criminals and rapists and your assertion relies and that stereotype, therefore your claim is invalid.” I posited that scenario because it has the defendant making the assertion, but this stereotype reliance problem which you pose can easily plague victims who want to report crimes against them. If an alleged victim reports a crime and only has his/her testimony to support it, and the accused perpetrator is a member of an often stereotyped and maligned class or race, does that mean that the alleged victim’s claim relies upon a stereotype and is a pernicious claim?

    As I said in a previous comment the fact that a woman goes to a bar looking for sex has no bearing on whether she consented to have sex with the defendant. What it does reveal is motivation for rape. “She had no right to say no to me, not when she was looking for sex.”

    That usually is not the claim of rape defendants, unless they are exceptionally stupid or depraved (as indeed many are). Your hypothetical phrasing of the rapist’s mindset is addressing a strawperson. Daran has already pointed this out, that defendants are not saying that, “because she was potentially seeking a sexual encounter, her indications of nonconsent were invalid and I was entitled to copulate with her despite them.” Their implication usually is “the fact that she may have been seeking a sexual encounter is evidence that we engaged in a consensual sexual encounter.” Juries have different reactions to this defense suggestion, some reject it, some are swayed, for better or for worse. You vociferously insist that this has ABSOLUTELY no bearing on whether or not she may have consent and that it cannot affect the juries deliberations. I don’t know whether you want to achieve this by changing popular opinion, jury instructions, or by statutes which disallow the defense from ever suggesting it. You seem to be arguing that an alleged victim’s prior behavior has no indication or bearing on his/her behavior in the contested events at trial. That premise would seem to undercut many kinds of defenses, and the whole notion of character testimony. If there is a history of the alleged victim filing and then withdrawing police reports or even commiting outright perjury, can the alleged victim and the prosecution say, “the fact that she was lying on previous occasions has no bearing on whether she lied about this encounter with the defendant” and therefore disallow evidence of prior dishonesty? If this bifurcation between past events and the contested events of the alleged crime is to hold, then even outright admissions of prior dishonesty from the complaining witness would have to be disallowed from trial. Does this bifurcation only hold for rape accusations and trials?

    Defendant: “I only hit or shot that man because he attacked me.”
    The Court: “Do you have anything to support this suggestion?”
    Defendant: “YES! His coworkers said he frequently threatened them and had a short fuse. He was attending mandatory anger managment, had ten assault convictions, and one attempted murder charge!”
    The Court: “Sorry, those are all past behavior prior to your encounter. His violent hostile behavior on previous occasions has no bearing on his behavior towards you. No dice.”

    Does this premise of prior behavior having no bearing on the alleged crime in question also apply to the rapist? If a person is accused of rape, and has a substantial amount of prior sexual offense convictions, do these prior convictions have absolutely no bearing on the contested events in the current trial? Usually prior bad acts are disallowed, but if there’s a repeated pattern similar or relevant to the circumstances of the case, then prior behavior also strikes against the accused, not just the accuser. Of course, a higher bar before its allowed to impugn the accused.

  37. 137
    ms_xeno says:

    Then are you saying that defendants cannot suggest an alternate scenario of events because the posited alternate scenario may tend to confirm a pejorative stereotype about a class of persons?

    I’m saying that I don’t give a rats ass why the woman was at the bar, if it’s that kind of rape.

    I’m saying that if she was married to an abusive man, I don’t care that she willingly married him, if it’s marital rape.

    I’m saying that if she’s a prostitute who already had sex with 100 men this week, and yesterday she told the 101st man that she didn’t want to have sex with him, I don’t care– if it was a john raping a prostitute.

    The fact is– and several of Abyss’ carnival links make this abundantly clear– it doesn’t matter whether I go to a bar or stay home, wear painter’s pants or a miniskirt with no underwear, drink a beer and a shot or six beers and six shots, etc etc. The current custom is for defense attorneys, the media and often even our friends and loved ones to make us all into “whores,” into somebody who deserved to have a man force sex on us. Which is ironic, because it shouldn’t fucking matter whether we’re virgins, “professionals” or at one of 5,000,000,ooo,ooo other points on the compass. We deserve bodily autonomy. We deserve the right to say no. We deserve to be LISTENED TO and not treated like defacto sinners for the “crime” of living our lives.

  38. 138
    Apros says:

    The jury should be able to get the context of the situation to make a determination of what really happened. That’s what it comes down to in a he said / she said rape case.

    There’s also a legal right to present a defense. Things that are only provocative or harassing aren’t allowed (rape shield laws), like the alleged victim’s sexual history.

    Information about the direct circumstances of the alleged rape and a defense are going to be allowed unless you change the Constitution.

  39. 139
    Apros says:

    The problem is that sometimes a rape that occurred can’t be proven beyond a reasonable doubt, especially in cases in which the couple was already in a sexual relationship or married. That’s just the nature of it. The jury has to make the best determination it can, using the standard of reasonable doubt.

    A campaign to eliminate the reasonable doubt standard, or to simply equate an accusation with a conviction, would probably not sit well with most Americans.

  40. 140
    Megalodon says:

    We deserve the right to say no. We deserve to be LISTENED TO and not treated like defacto sinners for the “crime” of living our lives.

    I don’t recall denying any of those rights. The contention has NOT been “because of certain prior behavior, her refusals can be disregarded.” The contention that most tactful defense attorneys present is “because of certain prior behavior, it is more doubtful that she refused.”

    I’m saying that I don’t give a rats ass why the woman was at the bar, if it’s that kind of rape.

    I’m saying that if she was married to an abusive man, I don’t care that she willingly married him, if it’s marital rape.

    You’re certainly entitled to that perspective, and both prosecutors and defense attorneys would test for that perspective if you were a jury candidate. Some potential jurors may think that some prior behavior may change the likelihood of whether or not she consented or whether or not the incident even happened. Are you saying that we should socialize the general population so that more potential jurors share your perspective about the relevance/irrelevance of prior behavior on the events in question? That the juries should be instructed properly on matters of relevance? That the Court should prohibit defendants from raising the matter of the accuser’s prior behavior, ever? All of the above?

  41. 141
    Megalodon says:

    Things that are only provocative or harassing aren’t allowed (rape shield laws), like the alleged victim’s sexual history.

    Yes, most rape shield statutes have a default prohibition against introduction of sexual history, assuming that it is usually provocative and non-probative. In most states, however, the prohibition is default, not absolute, and most statutes have an internal judicial waiver exception allowing the judge to examine information about the alleged victim in camera. If the judge deems it relevant, it may be presented in open court, as happened in the Kobe Bryant case.

  42. 142
    ms_xeno says:

    So you’re okay with the link in Abyss’ Carnival thread in which a young woman who acused an aquaintance of rape had to hold up her underwear in court? Seems to me that all too often, this is exactly the kind of absurd dimensions assumed in the notions of what a “fair defense is.” A young woman’s innocence supposedly hinged on how sexy the jury thought her underwear looked. Does that bother you in the slightest, because it sure infuriates the hell out of me.

    You’re certainly entitled to that perspective, and both prosecutors and defense attorneys would test for that perspective if you were a jury candidate.

    Thanks for the patronization. Yeah, I just fell off the damn turnip truck last week, and wasn’t aware that if I wanted to convict a possible rapist, I’d have to lie during jury selection. Because of course we chicks are all potential liars who’ll risk a mistrial in hopes of convicting every man we run across. Oh, wait. Bullshit. I got booted off a jury a couple of years ago, along with all the other women. It was an indecent exposure case, and the first thing defense did was throw all the women off the jury. I sat on a grand jury for a month in October, too. Find somebody else to talk down to, okay, Apropos ?

    I think you already know my opinions, or at least my opinions as they would be without your melodramatic distortion lens. So is there any manner of “prior behavior” that would make YOU believe that an acuser hadn’t actually consented to have sex ? I mean, apart from her having been born and reared in a nunnery five thousand miles from the rest of civilization. When do get to claim with credibility that I didn’t want sex ? After a cup of tea ? One beer ? Six beers ? Can I claim it at home ? On vacation ? In a bar ? With a wedding ring on ? Or off ? Just wondering.

  43. 143
    Apros says:

    “So is there any manner of “prior behavior” that would make YOU believe that an acuser hadn’t actually consented to have sex ?”

    There’s lots of prior behavior that would have me wondering. If she had three convictions for sleeping with men, accusing them of rape and then trying to get a civil suit going – all three prior convictions resulting from videotape evidence that she didn’t know existed – I would consider that important in a current case with the same fact pattern.

    That’s just an example of what I would consider important – I’m not making any other statement than giving a credible example (which you seem to be asking for). The jury has to make the best decision it can based on reasonable doubt. The factual circumstances are sometimes important.

  44. 144
    Apros says:

    ms_xeno, you have to realize that hearing and seeing witnesses and their demeanor, hearing about the people involved and the factual circumstances are all part of forming a judgment on what really happened.

    I’m not sure what kind of concrete change you are asking for. You have to admit that simply equating an accusation with a conviction would not be a fair way to handle things.

    I know that some rapes happened, but a conviction couldn’t be obtained because of reasonable doubt. That’s the same with other crimes including murder. That’s the nature of the real world, unfortunately, I would also like a perfect means of determining if someone committed a crime or not. But lacking that (any suggestions?) you have to stick with the imperfect system of a jury doing the best it can, and also giving the accused some protection.

  45. 145
    Megalodon says:

    So is there any manner of “prior behavior” that would make YOU believe that an acuser hadn’t actually consented to have sex ?

    Assuming that the sole evidence is the victim’s testimony, I guess there can be things in the accuser’s past which may enchance any victim’s credibility to a jury (not having hostility to the accused prior the incident), but they’re not requisite for finding a victim credible.

    I don’t think how the alleged victim was dressed is relevant, I don’t think it’s usually relevant if she were engaging in leching before the incident took place, I don’t think a general reputation of promiscuity is relevant, even if its true (unless the accuser makes an assertion about her own comportment and submits it in her favor), and I don’t think it’s relevant that she failed to issue an overt “No,” or a failed to manifest “enough” distress or resistance; victims aren’t obliged to risk more physical recrimination. Inebriation in itself shouldn’t count against the alleged victim unless her inebriation during the incident leaves her actually unsure about whether or not she gave consensual or affirmative indications. That doesn’t mean her drunken consensual indications would necessarily be valid, but in that case, the state should have the affirmative duty to submit evidence that the accused should have been reasonably aware of her impairment.

    Find somebody else to talk down to, okay, Apropos ?

    I said that allegedly downward statement, not Apropos. There was no condescension or patronization.

  46. 146
    Charles S says:

    Megalodon,

    Do you think that the defense should not be permitted to raise the issues that you agree are non-relevant, or do you think that the question of whether those issues are relevant should be left to the judgment of the individual jurors? If you agree that those issues are not relevant, why do you feel that the defense should be permitted to raise those issues? Certainly, some of those issues potentially will be raised simply by a full recounting of the details of the time period leading up to the rape, but do you think the defense should be permitted to focus on those details by doing such things as forcing the complainant to hold up her underwear before the jury? Do you think that the default should be that the defense is allowed to push as hard on those non-relevant but prejudicial details as the defense wants, or should the default be that the defense should be restricted from focusing on those issues?

  47. 147
    Megalodon says:

    If you agree that those issues are not relevant, why do you feel that the defense should be permitted to raise those issues?

    It’s probably hard to craft a rape-shield statute that surgically discriminates between probably irrelevant issues (what color or material undergarments) and potentially probative matters (sexual history with the accused, potentially violent, injurious sexual encounters with persons other than the accused). I’d err on the side of abiding introduction of irrelevant matter. Obviously, it obfuscates and damages, though some jurors may resent the tactic and penalize the defendant accordingly.

    Do you think that the default should be that the defense is allowed to push as hard on those non-relevant but prejudicial details as the defense wants, or should the default be that the defense should be restricted from focusing on those issues?

    I support a default rape shield restriction which limits information regarding general sexual history, with judicial waiver allowances. If defense wants exception from the general default restriction, they should submit a theory of relevance as to why the requested information may undermine the alleged account of events or discredits the alleged victim. All other restrictions or allowances should be handled by motions in limine.

  48. 148
    Daran says:

    Megalodon:

    I don’t think how the alleged victim was dressed is relevant

    The only circumstances I can think of, where clothing could pertain to consent is if the defence claims that she was a prostitute and that the sex act at issue was an act of prostitution. In that case what she was wearing at the time may be evidence that she was dressed for the purpose of prostitution.

    If that is not the defence’s claim, then I fail to see how clothing (or for that matter, her status of being or not being a prostitute) could be relevant evidence of consent.

  49. 149
    Daran says:

    There’s lots of prior behavior that would have me wondering. If she had three convictions for sleeping with men, accusing them of rape and then trying to get a civil suit going – all three prior convictions resulting from videotape evidence that she didn’t know existed – I would consider that important in a current case with the same fact pattern.

    Do you have any examples of a thrice-convicted false accuser bringing a fourth complain into court? If not, then could I respectfully request that you keep things real?

  50. 150
    Daran says:

    ms_xeno:

    So you’re okay with the link in Abyss’ Carnival thread in which a young woman who acused an aquaintance of rape had to hold up her underwear in court? Seems to me that all too often, this is exactly the kind of absurd dimensions assumed in the notions of what a “fair defense is.” A young woman’s innocence supposedly hinged on how sexy the jury thought her underwear looked. Does that bother you in the slightest, because it sure infuriates the hell out of me.

    The question wasn’t addressed to me, but I’ll take in on anyway.

    I read about this case from the links Marcella provided. Pausing briefly to note that we haven’t seen the trial transcript, and that the version of events we have has passed through three levels of hearsay, the events as described were absolutely disgraceful on the part of both defence advocate and presiding judge.

    I do not understand anyone’s ‘notions of what a “fair defense is.”’ as assuming this kind of “absurd dimension”, at least, not in this thread.

  51. 151
    Daran says:

    Information about the direct circumstances of the alleged rape and a defense are going to be allowed unless you change the Constitution.

    Please don’t assume that every discussion about rape prosecution takes place in a US legal context.

  52. 152
    Apros says:

    “Please don’t assume that every discussion about rape prosecution takes place in a US legal context.”

    Gotcha, boss.

    I won’t screw up again, I promise.

  53. 153
    Daran says:

    As I said in a previous comment the fact that a woman goes to a bar looking for sex has no bearing on whether she consented to have sex with the defendant. What it does reveal is motivation for rape. “She had no right to say no to me, not when she was looking for sex.”

    This is circular. If she consented then there was no rape, and no motivatoin for rape. If she did not consent then (assuming that the other elements of the crime – 1-3 in my formulation apply) it was rape. No motivation need be considered.

    Invoking motivation presupposed the very point at issue.

    Since too many people still share this belief that some women lose the right to say no or the ability to say no or that raping certain women doesn’t cause any harm, this strategy can work on some jury members so they deny the reality of the evidence they are presented.

    Who are these people? Are they taking part in this thread? If so, please say who they are and point out what they’ve said that indicates this. If not, what relevance does this have to what people who are taking part in this thread have to say?

    Otherwise it just looks like you’re raising strawmen.

  54. 154
    Daran says:

    Charles:

    Do you think that the defense should not be permitted to raise the issues that you agree are non-relevant, or do you think that the question of whether those issues are relevant should be left to the judgment of the individual jurors?

    Not addressed to me, but I’ll answer. No, I don’t think either defence or prosecution should be allowed to raise issues which aren’t relevant. The debate here seems to be about which issues are relevant and which aren’t.

  55. 155
    Charles S says:

    Daran,

    It doesn’t matter one wit whether anyone in this conversation is one of the people who believe that doing certain things (going out drinking, dressing like a prostitute (in Portland, apparently this means wearing stirrup pants, as my spouse constantly got propositioned on her way to work whenever she wore stirrup pants), flirting, etc) means that a woman can no longer refuse to consent to sex. What matters is that they exist, and that they serve on juries. I’m not sure how to prove or disprove the prevalence of such a point of view, but I am certain it doesn’t matter that no one in this conversation holds such an opinion (anyone who does hold such an opinion shouldn’t be posting in this thread anyway). The argument for preventing juries from seeing particular defense arguments is not that those arguments would sway you or megalodon (obviously, they wouldn’t), but that they would illegitimately sway many potential jurors.

    You agree that the underwear story is a disgraceful miscarriage of justice, but the question is: are there explicit rules that could be designed to prevent such abuse, without being so extreme as to prevent any effective defense. It seems to me that there is a pretty large distance between what is currently often allowed and the point at which the ability to mount a legitimate effective defense would be curtailed and that it ought to be possible to develop more restrictive rules on what the defense is allowed to do.

  56. 156
    Daran says:

    Me:

    The claim is “the feminist side assumes defendants to be guilty”…

    Jake Squid:

    Cites, please.

    I’ve already cited two people. Ms_xeno’s remarks here and here are a third, if they are construed as refering to defendants in rape trials. (If that was not the intended context then they are just plain irrelevant.)

    Feminists frequently refer to alleged rapists as “rapists” in specific cases., for example the Duke University case. Do you seriously dispute this?

    Actually, why bother? That is so, so false. The issue that feminists are discussing, the point that they are making, is that women should not have their reports of rape dismissed for the extremely weak reasons often used to dismiss a woman’s claim (drunk, didn’t fight/leave marks on defendant, didn’t wear underwear, etc).

    If that’s all feminists were arguing, then I doubt we’d be having this discussion. Marcella started this by suggesting that the defence bear the burden of proving consent, which goes much further than your characterisation.

    The fact that you are claiming this is the feminist position…

    I didn’t say it was the feminist “position” in the sense of a principle consciously embraced. It’s more of an unstated, subconscious assumption or mindset.

    …indicates that you didn’t read the note (about who this thread is limited to) at the bottom of the post and that you have not comprehended the subject of Abyss2hope’s post.

    I did read it. I didn’t understand the requirement to be “be respectful of feminists’ efforts to fight sexual exploitation” as a prohibition on criticism. Rather I took her list of specific offences as illustrative (though not exhaustive) of the kinds of behaviour she objected to. I’ve done none of those things or anything comparable. (Cite me if you think I have.)

    Insofar as some feminists have resorted to attacking strawmen versions of our arguments, I have found them less than “respectful” of our efforts to defend fair trials.

  57. 157
    Apros says:

    Trial lawyers acting like buffoons – especially lawyers in tort cases – is something that has always existed and probably always will. There already supposedly ARE rules (at least the Rules of Evidence IN THE UNITED STATES, FOR EXAMPLE) that try to stop material that is more provocative than probative from coming in. Lawyers weasel around it, judges fall asleep, and pretty soon you have another dramatic, tragic or more likely clownlike performance in court.

    The problem is that a sexual assault case involves an especially private area of one’s life. I don’t know what the solution is, because sooner or later you butt up against something relevant for the defense – which can also be presented in a dramatic or embarrassing way.

  58. 158
    Apros says:

    * Note to my comment above: I’ve seen so many misinterpretations of people’s words on this board that I can almost anticipate what someone will come up with. So, to save you typing effort — yes, I know that a sexual assault case is not a tort case. Yes, tort lawyers are the worst buffoons. Yes, lawyers in sexual assault cases can also be buffoons. Alles klar? LOL

  59. 159
    Abyss2hope says:

    Megalodon:

    The woman claims in her own defense that the man was attempting to sexually assault her and she was defending herself. Should the prosecution ask, “Do you have evidence besides your assertion that he was trying to assault you?” She answers, “No, I shot him before he could injure or rape me!” Should the Court then say, “your self-defense claim has no corroborating evidence outside of your assertion.

    Her assertion is direct evidence about the interaction between the defendant and the alleged victim. And no, my assertion about men thinking certain women lose the right to say no is not a strawman. It was codified in marital rape exceptions and in rape laws that limited rape laws to women of good character and the Maryland appeals court ruled that once penetration begins consent cannot be withdrawn for any reason. Unfortunately, these stereotypes are what many people still believe and why many rapists don’t think of themselves as rapists.

  60. 160
    Abyss2hope says:

    Megalodon:

    Their implication usually is “the fact that she may have been seeking a sexual encounter is evidence that we engaged in a consensual sexual encounter.”

    No, this implication is evidence of nothing. Maybe you can’t fathom a girl or woman being raped when she goes into a situation with an open mind, but the scariest experience of my life fit exactly this scenario. I would have been willing to have consensual sex, but that wasn’t what he wanted. He wanted to brutalize me. If I hadn’t successfully broken free, he would have raped me. When I became willing he seemed like a great guy, but once he thought he had control of me that great guy was replaced by something as close to monsterous as I have ever witnessed.

    You are asserting that if I hadn’t been able to escape and the case went to trial that simply because I started out willing that it should negate his actions and my testimony about his actions to create reasonable doubt.

  61. 161
    Abyss2hope says:

    Apros:

    Things that are only provocative or harassing aren’t allowed (rape shield laws), like the alleged victim’s sexual history. Information about the direct circumstances of the alleged rape and a defense are going to be allowed unless you change the Constitution.

    Many of the facts that Megalodon seems to want in the trial belong in the first group and not the second, but only if they are used against the alleged victim and not the defendant. I’m all for allowing information about the direct circumstances of the alleged rape. I am against provocative questions like, “Did you go to school the next day?” because those questions use stereotypes (a real rape victim would be unable to go to school the next day) to distract from the direct circumstances of the alleged rape.

  62. 162
    maribelle says:

    Daran, you wrote:

    Several years ago my GF at the time got extremely drunk at a party, to the point where she couldn’t stand and was sick all over herself. The task of cleaning her up and changing her clothing fell to me.

    The fact that she came on to me sexually while I was undressing her did not make her “consenting” to any sexual contact I might have initiated at that point.

    Completely agreed. Then you wrote:

    In the example I gave of my former GF, we did end up having sex (after I had cleaned her up and we went to bed). We had discussed our intention to have drunk sex earlier that day. There’s your consent.

    No–not at all, see your own example above. The point is consent must be given at the time–”discussing our intention earlier” doesn’t mean anything–discussing her intention at the time of the sex is where consent lies.

    So she stated earlier in the evening that “drunk sex” might be a good thing later. But at the time of the act, she is so drunk she “couldn’t stand and [was] sick all over herself.” (Charming image, by the way.) She is clearly unable to make the choice to have sex AT THE TIME. This renders her incapable of making the proper decisions in the moment; proper application of birth control, use of birth control at all, positions that are not painful to her, stopping something she doesn’t like, etc etc etc.

    Think of it this way; at that stage of drunkenness she was legally incapable of driving a car, signing a legal document, or testifying in court (to name a few.) How on earth could she be legally able to consent to having sex?

    The fact that you had “discussed drunken sex” earlier in the evening means nothing. The fact that you had had consenual sex many times does not mean that you have her consent, ipso facto, in your hip pocket.

    Your own words convict you. You raped your girlfriend.

    Robert wrote:
    The difficulty with that, Daran, is that there are people who go out with the specific plan of getting really drunk or high or whatever and then having sex (or going out to get drunk with the thought that perhaps they’ll end up having sex).

    So? They still have the right to pick their partner, choose which (if any) acts to agree to, etc. That doesn’t give any male in the near vicinity carte blanche to rape them.

    By the time the sex happens, there’s no way for legal consent to exist, but the person isn’t being raped

    What? Completely backwards. If there is “no way for legal consent to exist” then NOONE SHOULD BE HAVING SEX WITH HER. If there is “no way for legal consent to exist” the woman is RAPED. Lack of legal consent EQUALS RAPE.

  63. 163
    Abyss2hope says:

    Apros:

    A campaign to eliminate the reasonable doubt standard, or to simply equate an accusation with a conviction, would probably not sit well with most Americans.

    Neither I nor anyone else commenting here are advocating for the elimination of the reasonable doubt standard. But reasonable doubt should be grounded in the evidence and testimony directly linked to the alleged crime and not be grounded in stereotypes (alleged victim flirted with defendant before the alleged rape, etc.).

    I hold the same views about criminal convictions. They should be grounded in the evidence and not in stereotypes.

    Too many people seem to believe that innocent until proven guilty means that only convictions should be grounded in evidence and that acquittals can be grounded in stereotypes or personal attacks of the alleged victim or anything that maximizes the number of not-guilty verdicts.

  64. 164
    Abyss2hope says:

    Daran:

    Marcella started this by suggesting that the defence bear the burden of proving consent, which goes much further than your characterisation.

    No, this is not what I suggested. What I advocated for and still advocate for is that reasonable doubt be grounded in the evidence or lack of evidence and not in the mere claim of “it was consensual” or in stereotypes such as the absense of screaming.

    In case there is any confusion, no attacks on feminism or generalizations about feminists are allowed on this post or any of my other posts. I let the last one slide, but if there are any more they will be deleted.

  65. 165
    Megalodon says:

    Abyss2hope:

    Her assertion is direct evidence about the interaction between the defendant and the alleged victim.

    Okay, so an alleged victim’s assertion and testimony can be considered evidence of the claim submitted? Fine.

    No, this implication is evidence of nothing.

    Cross-examinations yields a host of alternate scenario implications, in rape cases and in every other criminal prosecution, which are used to undermine the state’s and the accuser’s account of events. The defense is not obliged to have each of their implications bolstered by independent evidence. If you are saying that the defense cannot present these implications unless they have evidence to support their implied alternate account of events, then what kind of cross-examination can be allowed? The only tenable defense action is a submitted alternate scenario with evidence, which would establish a defense burden of proof.

    When the alleged victim testifies and submits her account of events, you say that her assertions constitute evidence. Fine, I agree. Now, if the accused decides to testify in his own defense and says plainly, “She said ‘yes,’ it was consensual, there was no violation,” does his testimony constitute evidence of his counterclaim? Obviously juries may perceive testimony differently, finding one witness to be more consistent, one witness has more details, one may seem more honest.

    An alleged victim’s assertion of what happened constitutes evidence. Do the accused’s counter-assertions constitute evidence then? If they make opposing assertions in open court, is there a deadlock? Is the accused required to have external evidence to support his testimonial assertion whereas the alleged victim does not? Is there a default presumption about whose testimony we defer to in such a case of contrary testimony?

    Maybe you can’t fathom a girl or woman being raped when she goes into a situation with an open mind, but the scariest experience of my life fit exactly this scenario.

    I actually can fathom such an occurence; I’m sure it happens and continues to happen. Persons are entitled to change their minds and prior willingess to copulate does not constitute bodily forfeiture.

    Many of the facts that Megalodon seems to want in the trial belong in the first group and not the second

    So if the accused may have engaged in injurious sex with somebody other than the accused, giving an alternate explanation of evidence, that’s nothing by provocative harassing innuendo?

  66. 166
    Megalodon says:

    What I advocated for and still advocate for is that reasonable doubt be grounded in the evidence or lack of evidence and not in the mere claim of “it was consensual” or in stereotypes such as the absense of screaming.

    In rape cases without physical evidence or material witnesses, all there may be is the “mere claim” of the alleged victim. As you said before,

    Her assertion is direct evidence about the interaction

    I agree that her assertion may constitute prima facie evidence to sustain indictment and even conviction. You now seem to be saying that when the defendant makes a counterclaim, his mere claim is insufficient and requires additional supporting evidence. If assertion without evidence is sufficient or one party, but not sufficient for another party, clearly the burdens of proof are differential and one party has a greater burden than the other. In this case, you seem to be saying that the defendant has the higher burden.

  67. 167
    mythago says:

    Okay, so an alleged victim’s assertion and testimony can be considered evidence of the claim submitted?

    Of course testimony is part of the evidence. This is true of any court proceeding.

    If you are saying that the defense cannot present these implications unless they have evidence to support their implied alternate account of events

    If the defense is that the accuser mis-identified her attacker, then “she had rough sex with her boyfriend last night” is not relevant. If the defense is that vaginal injuries came from the accuser’s rough sex with her boyfriend, that would be relevant, and admissible–as rape-shield laws clearly state.

  68. 168
    Megalodon says:

    If the defense is that the accuser mis-identified her attacker, then “she had rough sex with her boyfriend last night” is not relevant.

    Defendants are usually not confined to one counter-suggestion, particularly when the defendant elects not to testify and decides to concentrate on discrediting or undermining the state’s account of events.

    If a defendant elects to testify and adhere to the story, “It wasn’t me,” then yes, her prior or concurrent sexual acts with others are usually not relevant. He probably shouldn’t simultaneously say “It wasn’t me” and “It was consensual,” unless he wants to look deceptive and shifty.

    But cross-examination throws out a litany of alternate scenarios. Making the defendant look inconsistent or dishonest can raise the possibility, “She made a mistaken identification” or “There was no sexual encounter” or “There was an encounter but she’s lying.”

    It seems to me that there is a pretty large distance between what is currently often allowed and the point at which the ability to mount a legitimate effective defense would be curtailed and that it ought to be possible to develop more restrictive rules on what the defense is allowed to do.

    Of course its possible, but we suspect that some of the proposals here would cover that “pretty large distance” and then some.

    If the defense is that vaginal injuries came from the accuser’s rough sex with her boyfriend, that would be relevant, and admissible–as rape-shield laws clearly state.

    Indeed, point taken. Is every poster on this board accepting of this current stipulation and structure of rape-shield laws?

  69. 169
    Abyss2hope says:

    Megalodon:

    You now seem to be saying that when the defendant makes a counterclaim, his mere claim is insufficient and requires additional supporting evidence. If assertion without evidence is sufficient or one party, but not sufficient for another party, clearly the burdens of proof are differential and one party has a greater burden than the other. In this case, you seem to be saying that the defendant has the higher burden.

    There is a huge difference between 1) a defense attorney making a claim that the defendant isn’t guilty because the sex was consensual and 2) testimony and evidence directly related to what happened which supports the defense attorney’s claim that the sex was consensual and 3) alternate theories of what happened that are based on stereotypes of who does and doesn’t get raped and 4) unethical treatment of the alleged victim by the defense team such as trying to force her to watch a video of the alleged rape.

  70. 170
    Megalodon says:

    There is a huge difference between 1) a defense attorney making a claim that the defendant isn’t guilty because the sex was consensual and 2) testimony and evidence directly related to what happened which supports the defense attorney’s claim that the sex was consensual and 3) alternate theories of what happened that are based on stereotypes of who does and doesn’t get raped and 4) unethical treatment of the alleged victim by the defense team such as trying to force her to watch a video of the alleged rape.

    Of course there’s a difference between (1) and (2). Lack of (2) should not enjoin the defense from presenting (1). Lack of supporting evidence does not and should not prevent an alleged victim from submitting her claim. If the defense must have (2) in order to submit a contrary claim of events, but the accuser does not have to have such evidence, that seems to be differential burden, a burden markedly different from “presumed innocent until proven guilty.”

    As for (3), defendants and defense attorneys are not submitting the stereotype as evidence. They are asserting that a person behaved in X-fashion and that it has an implication on the events in question and may raise doubt. Depending on the situation, it may or may not. Obviously, stereotypes cannot be totally purged from the process, despite jury instructions, voir dire, or vehement emphasis on the testimony, cross-examination and consistencies/inconsistencies. The fact that an assertion of fact or implication of doubt may intersect with a pernicious stereotype should not enjoin the party from presenting it or implying it.

    If an alleged rape victim, or any victm, has only her testimony as evidence, her assertions at trial may unfortunately intersect with pernicious stereotypes, if the accused rapist happens to be a member of a certain group. If the accused rapist happens to be black, her accusation may reinforce or recall stereotypes of black men as criminals and rapists. She probably doensn’t mean to enforce this stereotype, she’s saying, “I’m not saying that black men are rapists and criminals. I’m saying that this man who is black raped me!” Though the stereotype may contribute to a conviction.

    Defendants are not necessarily claiming and defense attorneys are not necessarily implying that all women who patronize certain locations lose their bodily sovereignty or that such women always certainly consent. They’re suggesting that such happenstance raises the probability of a consensual encounter and that this was one such consensual encounter. Maybe the defense bets on a stereotype, and maybe the prosecution also bets on stereotypes when the accused is of a certain race or lower class. Are claims and counterclaims based upon testimonial assertion supposed to be disallowed when they intersect with a stereotype? Or just a defendant’s counterclaim? If the stereotype-intersection prohibition only applies to defendants making counterclaim assertions, that once again suggests jettisoning presumption of innocence.

    4) unethical treatment of the alleged victim by the defense team such as trying to force her to watch a video of the alleged rape.

    If it’s unethical because it causes emotional distress and resurgence of trauma, that charge can be leveled against the entire trial and judicial and investigative process. Rape kit preparation is invasive and probably humiliating. Forcing the alleged victim to verbally recount the event and provide detail is often traumatic and humiliating, but police reports, testimonial preparation, direct examination and cross-examination will all necessitate that. The alleged victim will have to recount it multiple times and finally do so in open court. If there actually is a video recording of the event in question, finding consistency or inconsistency between the video and the alleged victim’s account is highly relevant. If treatment is unethical because of causing trauma and distress to the alleged victim and are could be disallowed on account of that, we should able to do away with the entire trial. Lord knows many rape victims fear that upcoming event most of all, and not just the defense’s participation in it.

  71. 171
    Abyss2hope says:

    Megalodon:

    Rape kit preparation is invasive and probably humiliating.

    I have not heard of any rape victims being forced to go through this exam and I hope nobody anywhere is forcing victims to do so or treating them with anything less that full respect when they do report rape.

    Justice and respect for alleged victims throughout the whole criminal justice process are not mutually exclusive.

    Traumatizing alleged victims is a deliberate strategy of intimidation and debasement by many defense attorneys, not a true pursuit of justice. Their goal is to break the alleged victim not to get at the truth.

    If deliberately traumatizing the alleged victim is okay, then do you think it is okay if law enforcement uses the same strategies when they are after a confession?

  72. 172
    Abyss2hope says:

    Megalodon:

    Defendants are not necessarily claiming and defense attorneys are not necessarily implying that all women who patronize certain locations lose their bodily sovereignty or that such women always certainly consent. They’re suggesting that such happenstance raises the probability of a consensual encounter and that this was one such consensual encounter.

    But that happenstance does not raise the probability that the encounter in question during a rape trial is a consensual encounter. You are substituting the probability that any randomly selected sexual encounter between people who meet at certain locations will be consensual for the probability of consent when the encounter results in criminal rape charges. A rape case is not part of a random sampling of sex hookups at that location.

    Therefore the suggestion that this sexual interaction was consensual, based on where they met or whether she was looking for someone she wanted to have consensual sex with, has no factual base.

  73. 173
    Megalodon says:

    I have not heard of any rape victims being forced to go through this exam

    I wasn’t suggesting that victims are forced to go through the exam. However, the kit is often significant in the investigation and the trial. The alleged victim’s refusal to undergo a rape exam can severely circumscribe the investigation and result in the loss of compelling evidence. The alleged victim declining an exam will probably result in much suspicion at the trial phase, if it does go to trial. The victim is certainly free to explain, “I declined the exam because I found it invasive and humiliating, not because I wasn’t raped.” But the defense attorney will rightly pursue the issue and suggest otherwise, and the jury may find it compelling.

    Traumatizing alleged victims is a deliberate strategy of intimidation and debasement by many defense attorneys, not a true pursuit of justice. Their goal is to break the alleged victim not to get at the truth.

    Asking a victim what her rape was like is probably traumatic and disturbing for a lot of those victims. Some victims find that recounting and explaining the rape is intimidating and traumatic, even if the person asking her is a police officer, a rape counselor, the prosecutor, or even her therapist. It’s not just the defense that asks inquiries that the victim may find traumatic and intimidating. Are you saying that when the investigators, counselors and prosecutors ask the alleged victim to recount the incident, it’s okay even if the victim finds it degrading and horrible to recall the violation? And keep in mind that when preparing for trial, prosecutors can act very much like defense attorneys, questioning the alleged victim on an inconsistency, asking her why she didn’t do “X” why she did “Y.” This is usually to shore their case, not the intimidate the victim. However, the victim may indeed find the investigative process and trial preparation to be intimidating and degrading, even though that’s not supposed to be point of the process. Does that mean that the investigative process and direct examination in trial should be done away with? Who knows? Maybe some police officers, prosecutors and therapists enjoy inflicting those things on rape victims, and incarcerating a rapist is just a collateral bonus.

    Maybe some defense attorneys and defendants intend to traumatize and intimidate the victim, but that can never be isolated as the sole motivation of their strategies and cross-examination, unless the defendant’s guilt is known in advance, which sort of contradicts the purpose of a trial. A defense attorney is going to ask an alleged victim to recount the incident, to clarify details, to maybe explain certain prior incidents, etc. I’m guessing that most victims will find all of this unwanted, intimidating and traumatic. The defense attorney is implying or outright saying that her version of events may be untrue, that she may be lying, most persons would find that degrading. But unless we know in advance who is telling the truth, the scrutiny cannot be dismissed.

    The Court: Your cross-examination is traumatizing and intimidating the witness.
    Defense: Your honor, we are scrutinizing the alleged victim’s claims and surrounding circumstances to show that the accusation may be untrue and that there may be doubt. We’re entitled to do this and we can’t help it if the alleged victim finds it traumatizing.
    The Court: The fact that the victim finds it traumatizing means it has NOTHING to do with the truth! Your questioning is over.

    Defense attorneys are not obligated to find the truth, only to demonstrate that the presented facts do not overcome a reasonable doubt. But since you bring up the whole matter of finding the truth, that process is not always without trauma for the victim, an actual victim. If after repeating inquiry from the detective, prosecutor or defense, she admits that she was raped, but she falsely identified somebody because she didn’t want to identify the actual rapist out of fear, or some sense of loyalty that victims of abuse sometimes have to their abusers. It reveals the truth, but probably a traumatic extraction and admission for the victim.

    If deliberately traumatizing the alleged victim is okay, then do you think it is okay if law enforcement uses the same strategies when they are after a confession?

    Yes, I do, and this treatment is constitutionally permitted. If the suspect does not invoke his right to silence or right to counsel, police can and do deploy all of the above tactics. Intrigue, threats, and intimidation are constitutional and common parts of interrogation. They can call the suspect a rapist, a liar, declare that they have him dead to rights and intimidate him with fictional evidence. They can lie and tell him that the alleged victim has identified him, that they have found his DNA on the victim, even if no such evidence exists. They can threaten the suspect about the time he will face in prison, how he will be raped in prison, how his family will be ruined, etc, unless he confesses. Lord knows the defense attorney cannot say many of those things during trial, cannot lie to the alleged victim about a fictional witness to say, “we have a witness who says you weren’t there during the alleged rape, still sticking to your story?” If there is positive DNA evidence, the defense attorney cannot lie to the victim during cross and say “the DNA isn’t his, care to change your story?”

    Its the obligation of suspects to know their rights during interrogation. If they allege that their confession was coerced, that’s a matter for the judge. And intimidation is not the same as illegal coercion. If they say that the confession was just false, they can submit that to the jury, or their lawyers can shed light on the methods used, and let the jury weigh the probative value of the confession and how genuine it is.

  74. 174
    ms_xeno says:

    I said that allegedly downward statement, not Apropos. There was no condescension or patronization.

    Sorry for the confusion, M. However, it still strikes me as being a condescending thing to say.

  75. 175
    Megalodon says:

    You are substituting the probability that any randomly selected sexual encounter between people who meet at certain locations will be consensual for the probability of consent when the encounter results in criminal rape charges. A rape case is not part of a random sampling of sex hookups at that location.

    Therefore the suggestion that this sexual interaction was consensual, based on where they met or whether she was looking for someone she wanted to have consensual sex with, has no factual base.

    You are saying if the surrounding circumstances suggest or seem to recall a higher probability of non-criminal sexual encounters, then such information is to be disallowed because it contradicts the accuser’s assertion that it WAS a criminal sexual encounter. You seem to be arguing that a rape accusation and the ensuing charges are in themselves proof which negate any implied or outright-asserted claim of consensual encounter. I guess this means that any conjecture or suggestion which contradicts the alleged victim are disallowed. That should make closing statements interesting.

    No, a rape case is not a “random sampling,” but statistical or probablity consideration is still relevant and it cuts both ways. If an alleged victim claims that was incapacitated and raped, and the accused has a drug like ketamine or flunitrazepamin his possession, its probably a huge strike against him, having an illegal drug which is commonly perceived as a rape facilitator. He can try to explain it away, saying that he and the victim knowingly consumed it, or he consumes it himself, to make copulation more intense. Can his possession of this drug be disallowed from trial? Because he says, “The fact that this drug may often be used to facilitate rape has no bearing on whether I was using it to facilitate rape. Non-issue.” Maybe he really just had it for his own use, or maybe the alleged victim was knowingly using it along him. Possible. But the jury should be able to consider that this drug is often used for non-consensual means and the defendant had it.

    But that happenstance does not raise the probability that the encounter in question during a rape trial is a consensual encounter.

    Of course a woman who had prior consensual sexual encounters with a man might eventually be raped by that same man. Of course marital rape can occur. Prior incidents of consent do not make a future rape impossible, and I don’t recall ever thinking that. The fact that she may have been soliciting a sexual encounter does not mean that she consented to this sexual encounter. But for some jurors, it may raise the probability that it was consensual and that the alleged victim is lying or is to be scrutinized more. Does this analysis of yours only apply to disputes and allegations over consent? Or any allegation of contested behavior in a criminal case? Can a convicted serial rapist say “the fact that I raped on ten prior occasions does not raise the probability that I raped on this occasion”? Can the accused say, “the fact that I sent threatening emails and was stalking her does not raise the probability that I attacked her”? Can the alleged victim insist “the fact that I made a previous false accusation does not raise the probability that I’m making a false accusation now. Disallow that information from the trial”?

    I’m guessing that this isn’t just an argument about how juries should deliberate, not just a matter of jurors deciding to disregard such information as irrelevant and not affecting the probability of whether or not this was a consensual encounter. This is a dispute over what the defense can present and what the jury is allowed to hear, so would this mean that information which necessarily implies prior consensual encounters between the alleged victim and the accused be disallowed? Some jurors will dismiss a prior consensual relationship as irrelevant to the probability of consent in this case. But since some jurors think such things do affect the probability of consent in the dispute incident and we can’t always detect them in voir dire, does that require that all parties in the trial never mention that the alleged victim and defendant were consorts, or that they are married (in cases of marital rape accusations)?

  76. 176
    me says:

    The more I think about this the more I am convinced that the a2h’s real enemy here is not the men who do rape, but the vast numbers of women who disagree with all that a2h contends, conduct their sex lives accordingly, and set the standards by which men are expected to act as aggressors. I can think of very few instances in my life when my partner gave any kind of verbal, or any other explicit, consent, and the few instances I do remember were little more than the crude ” ‘Wanna fuck?’ ‘Uh-huh’ ” variety. Hell, during the late 70s disco era when offering a girl a toot of coke, her inhaling the line was implicit consent.

    The prime obstacle here is actually establishing a social construct of explicit consent that reverses a million years (or so) of simple biology. Humans, like their animal counterparts, are just naturally rutting rabbits.

    This is why rape defenses will never have to prove explicit consent: the sex game simply does not work that way.

  77. 177
    Mickle says:

    “Mickle has acknowledged that s/he should have said “accused” in the context.”

    In what context?

    Actually, what I said was that I should have used “accused” in that sentence, since I was obviously talking legal proceeding, but the exact context may have been unclear, and therefore people may mistake my meaning. In the context of the overall discussion, using “accussed” would have been almost silly. Taken out of context, one can see why such words are important. But that’s a matter of making one’s meaning clear to others, not a matter of changing one’s own mindset – which is what you seem to be suggesting. It wasn’t that I should have thought of the person in my mind as accused, because the person in my mind was the rapists from the recent OC trial – it was that people can’t read my mind so I need to clearer. “Accused” is simply quicker than explaining all the other stuff.

    Most of the other stories that people have been discussing are hypotheticals or personal experiences in which it makes perfect sense to use simply “rapist”. So, while I think that it would have been more appropriate in my case, that doesn’t mean I think most people on this thread that didn’t do so should have done so. I’d also hardly use the evidence that you did use as evidence for what you used it for.

    And just to be crystal fucking clear this time – using any bit of my agreeing with you in order to throw my words in the faces of my allies – instead of actually arguing your own point – pisses me off like nothing else.

    That was never my claim. The claim is “the feminist side assumes defendants to be guilty”, not that Mickle does, (or even that Mickle is a feminist; I consciously avoid labelling people, which is why I used the “feminist side” formulation. You’ve been arguing on that side, in this thread, on this topic, regardless of how you self-identify or argue on other topics in other places.)

    Um, as Jake Squid already mentioned, anyone on this thread has self-labelled as, at the very least, as part of the the “feminist side.” If you don’t identify as such , WTF are doing on this thread?

    When I make claims like this, I try to support them with cites. That’s my way of avoiding strawmen: if I can’t easily find examples of the arguments or behaviour I’m criticising, then that might be an indicator that I’ve misinterpretted. In this case, the examples were easy to find, and one of them happened to be you. It wasn’t personal.

    Next time why don’t you go for accurracy and understanding rather than simply trying to follow the rules of formal debate. Citing real examples doesn’t mean jack shit if you don’t use them correctly. I realize there’s a lot of comments to be reread carefully if one wants to be sure that the context of each quote is clear. However, we should all keep in mind that when one goes looking for “proof” one often finds it even when it really isn’t there.

  78. 178
    Abyss2hope says:

    Megalodon:

    Can a convicted serial rapist say “the fact that I raped on ten prior occasions does not raise the probability that I raped on this occasion”?

    So you are in favor of allowing the defendant’s sexual history to be brought into rape trials as standard policy?

  79. 179
    Megalodon says:

    So you are in favor of allowing the defendant’s sexual history to be brought into rape trials as standard policy?

    Not as standard policy. It’s not totally disallowed in the case of a defendant, if the state can show that the prior bad acts establish a pattern of behavior similar to the criminal behavior being alleged at trial.

    Just to be clear, I’m not in favor of allowing introduction of alleged victims’ sexual history as standard policy either. I’m against the categorical prohibition thereof predicated upon the assertion that its categorically irrelevant.

  80. 180
    Abyss2hope says:

    Megalodon:

    If an alleged victim claims that was incapacitated and raped, and the accused has a drug like ketamine or flunitrazepamin his possession, its probably a huge strike against him, having an illegal drug which is commonly perceived as a rape facilitator. He can try to explain it away, saying that he and the victim knowingly consumed it, or he consumes it himself, to make copulation more intense. Can his possession of this drug be disallowed from trial?

    Wow.

    Woman goes to bar looking for great sex with a man of her choosing = man carries illegal date rape drug to bar.

    Wow.

  81. 181
    Megalodon says:

    Woman goes to bar looking for great sex with a man of her choosing = man carries illegal date rape drug to bar.

    What? Both persons are surrounded a by circumstance which may make a juror more skeptical of their claim of how a situation occurred. It’s just that the latter surrounding circumstance raises that skepticism much much higher, as it should. Any demarcation between said situations is one of degree. Also, the scenario said that the drugs were found in the alleged perpetrator’s possession, not that they found that he carried the drugs to the place where he encountered the alleged victim. Though if they found that he did so, in addition to him having the drugs, that should be pretty damning too.

    If the analysis stands, why should the fact that possession of this drug sometimes accompanies rape or attempted rape be a relevant factor? Can’t the defendant just take the line, “the fact that this drug is often used to facilitate rape does not raise the probability that I used it to facilitate rape on this occasion”? What’s the demarcation that excludes his drug possession from the penumbra of irrelevant probabilities? That its illegal? That it sometimes accompanies rapes? Ketamine and flunitrazepam are used recreationally by individuals in addition to their use as rape facilitators. The defendant is free to plead of all of that, and the jury is free to scoff.

  82. 182
    mythago says:

    Defendants are usually not confined to one counter-suggestion

    We’re not talking about “suggestions”, but about actual defenses presented in a case. Actual evidence relevant to those defenses is admissible.

    The real point behind rape shield laws is to weigh in on the issue of “more prejudicial than probative”. Evidence that goes to actual issues in the case is probative; “she’s a slut” evidence is not. The rules are supposed to prevent arguing over and over again whether certain types of evidence are or are not relevant, because if that evidence does not bear on actual issues, its only purpose is to sway the finder of fact through victim-blaming.

    I haven’t seen anyone in this discussion say that it’s wrong to bring in relevant evidence that touches on sexual history; nobody has claimed that a defendant should be forbidden to say “That semen didn’t come from me, it came from her boyfriend”.

  83. 183
    Daran says:

    Mickle:

    “Mickle has acknowledged that s/he should have said “accused” in the context.”

    In what context?

    Actually, what I said was that I should have used “accused” in that sentence, since I was obviously talking legal proceeding, but the exact context may have been unclear, and therefore people may mistake my meaning.

    That was the context I meant.

    Um, as Jake Squid already mentioned, anyone on this thread has self-labelled as, at the very least, as part of the the “feminist side.” If you don’t identify as such , WTF are doing on this thread?

    Marcella’s restrictions, as recently clarified by her, don’t permit me to make a full reply, but I can respond to this specific point. I did not interpret her restrictions as limiting comments to feminists and pro-feminists only. On the contrary, I noticed the difference in wording from other threads which do. Also Marcella has not (yet) banned me from the thread.

    I do my best to comply with the rules here, even when I find them odious. Now how about extending to me some of the respect that you all want to be shown to feminists?

  84. 184
    Megalodon says:

    We’re not talking about “suggestions”, but about actual defenses presented in a case. Actual evidence relevant to those defenses is admissible.

    Defendants are not required to present affirmative defenses or evidence, though they may elect to do so if such evidence exists. Cross-examination is not evidence or an affirmative defense, but an attempt to criticize and discredit prosecution testimony and evidence in an attempt to raise doubt.

    Every cross-examination question attempts to undermine a witness’s assertion and account of things, necessarily suggesting to jurors or the Court events may have happened differently from how the prosecution asserted they happened. If the defense can only ask questions that suggest possibilities for which they have evidence, it seems some burden to prove innocence is being established.

  85. 185
    Abyss2hope says:

    My restrictions don’t limit the comments to feminists and pro-feminists, but I don’t allow comments that focus on disagreeing with feminism because that derails conversations that could be productive on specific issues related to sexual violence.

  86. 186
    mythago says:

    If the defense can only ask questions that suggest possibilities for which they have evidence, it seems some burden to prove innocence is being established.

    Are you saying that if any restrictions are placed on the scope of cross-examination, we are shifting the burden of proof to the defendant?

    (And yes, a defendant may wish to do more than simply cross-examine a witness to attack the prosecution’s case. If the accuser insists she was a virgin prior to the rape, I assume you’d think it proper to introduce medical records to the contrary; if her virginity is not at issue, those records would not be relevant.)

  87. 187
    Megalodon says:

    Are you saying that if any restrictions are placed on the scope of cross-examination, we are shifting the burden of proof to the defendant?

    No, I’m not saying that all restrictions have the implication of burden shift. However, if the defense is limited to only asking questions that imply counter-scenarios for which the defense has evidence, that would be a burden shift. Is the Court supposed to say, “Yes, counselor, these cross-examination questions may reveal inconsistencies and suspicions of the testimony, but you don’t have evidence of an alternate scenario which exonerates your client, so your questions are unfounded and you can’t ask those questions” ?

  88. 188
    mythago says:

    However, if the defense is limited to only asking questions that imply counter-scenarios for which the defense has evidence

    Of course not. But the defense, as in other criminal cases, cannot ask questions that have no bearing on anything at issue in the case. To pick an extreme example, we wouldn’t call it burden-shifting to forbid a defense attorney from asking a witness “You say that my client broke into your house, but isn’t it true that you actually invited him in to watch homosexual porn with you?” if there was no evidence of, and the defense attorney didn’t really believe there was, any such invitation.

    The point of rape-shield laws is not to shift the burden. It’s to set standards for what kinds of questions about the accuser’s sexual history are relevant and which are simply jury-baiting. That’s why (generally speaking) a defendant can introduce evidence* about other sexual partners to show the source of semen, or injury, but not to suggest that she’s a slut who deserved it.

    If somebody here thinks rape shield laws as generally written are bad, I’d be interested to hear it.

    *by which I include eliciting testimony through cross-examination.

  89. 189
    Abyss2hope says:

    me:

    Humans, like their animal counterparts, are just naturally rutting rabbits. This is why rape defenses will never have to prove explicit consent: the sex game simply does not work that way.

    I’m sure that’s a fine defense in murder cases. Hey, other meat eaters kill people. If a shark can kill people, I should be able to do the same.

  90. 190
    ms_xeno says:

    How thoughtful that “me” does not state what he did when his partner(s) responded to the “Wanna’ fuck” inquiry with the word “No.” This begs the question, is “me” such a sexual dynamo/discerning creature that no female could possibly respond to his question with the word “No ?” Or does it mean that like a whole lot of other male rape apologists, he has simply schooled himself to not hear the word or to note other signs of his partner’s reluctance to have sex with him when they occur. If you school yourself not to hear/notice reluctance, it doesn’t exist. What a racket.

    It’s also worth noting that he assumes millions of women don’t agree with Abyss’ assertions of the issue of rape. I think that it would be more acurate to say that millions of women have A) never heard these assertions, for they are rarely if ever part of the mainstream media’s discourse B) Might agree with them silently and still be afraid to say so and C) Are no more solely responsible for “setting the standards” of sexual conduct than any one partner in any other transaction is solely responsible. Quaint though it might sound, I have always defined the term “partnership” as having to do with the standards of more than one person. Crazy, I know…

  91. 191
    maribelle says:

    Megalodon wrote:

    The fact that she may have been soliciting a sexual encounter does not mean that she consented to this sexual encounter. But for some jurors, it may raise the probability that it was consensual and that the alleged victim is lying or is to be scrutinized more.

    That is precisely the problem; read what you just wrote. The fact that the woman “may have been soliticing a sexual encounter” would cast doubt on her story that she was raped. Why–because she’s a sexually active woman, therefore she must have instigated the sex and then lied about it by calling it rape? How does this follow?

    Your suggesting that if the alleged victim is sexually active, her words should be treated with suspicion and doubt. Is this true of men as well?

    Consider the precedent: Any woman who has in–say, the last 48 hours– been willing to have sex with a self-selected partner should be scrutinized carefully if she says she is raped. These two things have no bearing on one another.

    So apply the logic the other way. Should the procecustor be able to prove that if an accused rapist was–within the last 48 hours– interested in a possible sexual hookup at a bar, that man must have raped his accuser. So why is it logical to believe that a woman might have been willing to commit a crime (ie lie about rape) because she was there for a “hookup”?

  92. 192
    Megalodon says:

    So apply the logic the other way. Should the procecustor be able to prove that if an accused rapist was–within the last 48 hours– interested in a possible sexual hookup at a bar, that man must have raped his accuser.

    Prosecutors can and so submit that proposition to juries. I’m sure many rape prosecutions allege that since the accused was in the same venue, may have been sexually interested in the alleged victim, was “pursuing” the alleged victim, that this raises the probability that the accused committed the rape. That’s a perfectly legitimate contention for the prosecutor to make and for the jury to consider. However, this contention of events used to bolster the charge of rape is supposed to be subject to the reasonable doubt threshhold of scrutiny; defendants’ implied counterclaims of consensuality are not. Of course, no way to to insure how juries will weigh competing claims of events.

  93. 193
    Abyss2hope says:

    Megalodon:

    However, this contention of events used to bolster the charge of rape is supposed to be subject to the reasonable doubt threshhold of scrutiny; defendants’ implied counterclaims of consensuality are not.

    Actually, this is a distortion of reasonable doubt. The prosecutor has to prove guilt of the defendant beyond a reasonable doubt. That is not the same as a threshold of scrutiny over evidence and theories that come from the prosecution vs. the defense.

  94. 194
    Megalodon says:

    That is not the same as a threshold of scrutiny over evidence and theories that come from the prosecution vs. the defense.

    If the ultimate proposition which the particular evidence or theory is supposed to prove is set to a higher burden, that higher burden has to be transmitted in some way upon the individual items of evidence and argument, even if each argument and item is not in itself subject to a reasonable doubt scrutiny. Evidence and theories submitted to prove guilt are usually supposed to be subjected to greater scrutiny because their ultimate proposition is subjected to a higher in-trial standard of proof than are counterclaims of non-guilt which the defense may imply. Even affirmative defenses do not have the same burden as reasonable doubt (usually its preponderance of evidence).

  95. 195
    mythago says:

    that higher burden has to be transmitted in some way upon the individual items of evidence and argument

    This doesn’t even parse.

    If particular pieces of evidence–such as prior bad acts–need to be addressed separately from “relevant” or “more probative than prejudicial”, then it’s appropriate to have specific rules of evidence addressing them. For example, I’m sure we’d all agree that the defendant’s virginity is rarely going to be relevant.

  96. 196
    Megalodon says:

    If particular pieces of evidence–such as prior bad acts–need to be addressed separately from “relevant” or “more probative than prejudicial”, then it’s appropriate to have specific rules of evidence addressing them.

    The argument was refering to differential burden evaluation of evidence that already passed admissibility rules and had been submitted to the jury, not admissibility/relevance rules. The original question asked about the legitimacy of the prosecution submitting submitted stipulated facts raising the probability of guilt, while the defense simultaneously construed them as lowering such probability.