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.
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Do you think there’s anything we can do short of getting rid of the presumption of innocence? I’m very sympathetic to what you’re trying to do. But when you write this you totally alienate me, and I’m sure you alienate lots of other readers too.
At the moment to convict someone the prosecution has to prove the case against them: that sex took place and that consent wasn’t given. With your change (if I’m reading you correctly), the prosecution would have to prove sex took place, and the defence would then have to prove consent was given in order to avoid conviction. I feel very strongly that people shouldn’t be put in a position where they have to prove that they aren’t guilty.
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.
This, I think, is a problem.
It reverses the normal legal “burden of proof” in criminal cases. It is never the defendant’s burdent to prove that they didn’t commit a crime; it is the state’s burden to prove that they did. If it’s agreed that sexual contact occurred, then the element of crime that makes it rape is the lack of valid consent. Under the state’s-burden rubric, the state must prove that this element was present – i.e., that there was no consent. Under a defendant’s-burden system, every act of sexual contact would be legal rape unless and until the defendant could prove that consent had been given.
It is an unfortunate feature of the common circumstances of this crime that proof often boils down to a literal he-said/she-said scenario. And your suggestion at least has the advantage of putting the presumption in favor of the accuser rather than the defendant, which would be a benefit to many victims. But it would do so at the cost of vacating one of the fundamental protections of our justice system, indeed of civilized law at all. And if we were to give up the presumption of innocence in this case, how long would it be before the same voices that in recent years have eviscerated our civil liberties in every other area began demanding that we overturn the presumption of innocence in other criminal cases as well?
The “embezzlement” example is instructive. The problem with embezzlement as a metaphor for rape is that the underlying act – taking an employer’s money, or engaging in sexual contact with a woman – is prima facie wrong in the first case, and prima facie right in the latter. That is, employees are essentially never supposed to have an employer’s money in their personal possession outside the work environment, and it is suspicious if they do. But consensual sex is natural and good, and I take it that vastly more acts of consensual sex occur than do rapes, so the presumption that the fact of sex is proof of the fact of rape unless there is compelling evidence to the contrary is highly problematic: it’s unlikely in actual fact, and it equates sex itself to a presumptive crime, which is an extremist claim that most feminists have been at pains to repudiate. But even leaving all that aside, the analogy still does not hold: accused embezzlers enjoy the same right of presumptive innocence that you would deny to accused rapists. Merely having possession of some money without explicit permission is not grounds for conviction – the prosecution must prove that that money was obtained illegally. This happens to be easy in embezzlement cases, because you can usually show that the money came from the employer, and it’s trivial to show that the employer did not give permission to take it. But even if conviction in these cases is easy, because evidence is easy to obtain, conviction is not automatic, and the presumption of innocence always remains with the defendant. The same is, and should be, true in cases of rape. The problem there is that conviction is not easy, because evidence of lack of consent is often not easy to obtain. Your solution, however, is to change the entire basis of the legal system itself, and on the analogy of cases in which that is not done. In addition to the terrible consequences that would likely flow from such a policy, your own example does not bear it out as a good idea.
Please give us your definition of rape. I would like to know exactly what you mean when you use the word.
Nik, this does not get rid of the presumption of innocence, it clarifies what consent is and what it is not. Consent is not the absense of a blood curdling scream. Consent is not a miniskirt or flirting. If a defendant says she consented to have sex with him, he should expect to show real evidence of that consent to counter the prosecution’s evidence of that there was no consent given.
What did she DO specifically that said yes to sex with the defendant in that instance?
Saying she consented is not evidence and is not grounds for reasonable doubt. But many people, including jurors, act as if the mere claim of innocence through consent means there must be reasonable doubt.
What this current system does is allow most rapists to rape with little fear that their victims will report the rape and the comfort that if she does report it, his chances of being rightfully convicted are very, very low. All he has to do is commit rape in a way that prevents his victims from reacting in a way that juries see as clear resistance to rape.
Kevin T. Keith:
No it doesn’t. It raises the bar to match what real consent is.
Hypothetically, what would qualify as valid evidence of consent that the accused could present?
Kevin T. Keith
No, it is not by default right to have sex with someone else. If you work for someone you only get what you are authorized to get. If you meet someone and want to have sex with them, you only get what you are authorized to get.
I wonder what kind of proof there can be for consent. In the absence of witnesses or signs of violence, there’s nothing an outside observer after the fact can use to distinguish consenual sex having occurred from nonviolent rape having occurred, except what the people involved say.
” If a defendant says she consented to have sex with him, he should expect to show real evidence of that consent to counter the prosecution’s evidence of that there was no consent given.”
This is certainly true, but isn’t the problem the prosecutions problem with providing evidence that there was no consent given?
Genus, the prosecution does bring its evidence to the case, but many times the defense attempts to create the illusion of consent (she didn’t scream, she didn’t go immediately to the cops, etc) that plays off people’s biases rather than showing any evidence that real, legal consent occurred.
I think it’s important, if we’re discussing elements of criminal trials, to make a distinction between rebuttal evidence and required evidence.
Several people have been objecting that the defense shouldn’t be required to prove consent, because the defense is always presumed innocent. I agree with that.
However, in cases where the prosecution presents evidence of guilt, the defense will usually choose to present rebuttal evidence or testimony, which (they claim) shows that the sex was consensual. And I agree with Abyss4Hope that elements like “she didn’t scream, she didn’t go to the cops” should not be accepted as evidence of consent. (Or, put another way, “she didn’t scream, she didn’t go to the cops” should not be seen as evidence which rebuts the prosecution’s evidence that the sex was forced).
So it is possible to talk about what should or should not be seen as legitimate evidence of consent, without being against the idea of “innocent until proven guilty.”
The prosecution has to prove each element of the crime beyond a reasonable doubt (and consent is an element of rape). That’s established, bright-line law.
“I wonder what kind of proof there can be for consent. In the absence of witnesses or signs of violence, there’s nothing an outside observer after the fact can use to distinguish consenual sex having occurred from nonviolent rape having occurred, except what the people involved say. ”
True – however, that simple logic isn’t usually the problem. When juries can watch videotapes in which an unconsious woman is tortured, and conclude that consent was given, the problem is not “he said, she said” it’s the concept of what consent is and what it isn’t.
From what I understand, abyss2hope isn’t trying to say that the defendant’s tesitmony shouldn’t carry any weight, it’s more that “well, I thought she was ok with it” should never, ever be considered consent. If one is unsure, one should get verbal confirmation. The only real twist here is that
1) The respsonsibility for verbal confirmation is transferred from the victim to the the rapist.
2) Since people often agree to things under duress that they would not otherwise agree to, simply asserting that she said the words is not by itself proof of innocence when there are claims of duress
3) Duress is not limited to overt threats of violence (ie – waving a gun or knife)
And
4) There are certain things that should be obvious to anyone – such suggesting that sex might be a good idea should never be considered consenting to having stuff done to you while unconsious.
Abyss2hope:
However you said this:
That is explicitly a reversal of the burden of proof. In the absence of evidence of a struggle, or other evidence, such as a video of the event or third-party eye-witnesses, then the testimony of the complainant will be the only evidence of non-consent the prosecution will be able to offer, and the defence will only be able to offer the testimony of the defendant in return. At the very least this implies abolishing the right to silence. But what you said further implies that cases in which there is reasonable doubt should go against the defendant.
What muddies the waters is that people confuse the placement of the burden of proof (on prosecution or defence) with the legal obligations of the participants in a sexual act toward each other. I have always argued that consent should be an affirmative act. If ones partner communicates their willingness, though word or action, then feel free to go ahead. Otherwise stop. A lack of communication is not consent.
But it should be the prosecution’s burden to prove that the complainant did not consent. One way of meeting that burden would be to show that the complainant resisted. Another way would be to prove that they said “no”. Yet another way would be to prove that the circumstances were such that they were incapable of consent, or that consent was so unlikely as to be beyond reasonable doubt. But those are not elements of the crime as such, but ways of carrying the burden.
Finally it should always be remembered that the failure of the prosecution to carry the burden does not mean that rape didn’t happen or that the complainant is a liar.
Daran:
No, it isn’t. If the defense rebutts the prosecution’s evidence with the claim that the sex was consensual, the burden for supporting their rebuttal belongs to the defense.
Daran:
Exactly. While the defendant is legally innocent until proven guilty, neither he nor anyone else has consent by default which can only be revoked through an act like screaming or scratching at the other person’s eyes.
I think you are forgetting that the defense has no burden under the law to prove or rebutt anything. Of course, if the defense can prove with evidence that a rape didn’t take place that would be great but in most cases without physical evidence it is a matter of “he said/she said”.
If someone claims you did something-whatever the “something” is doesn’t matter-then that person has a burden to prove it; you don’t have the burden to prove that it was not true. The only burden of proof lies with the person making the initial claim.
Do you think that elements such as ” she did scream” or “she did go to the cops” is legitimate evidence that the prosecution should be allowed to introduce?
Because it seems to me to be incoherent to assert that the prosecution’s case is stronger if she screamed but not weaker if she didn’t scream.
It’s possible, but as I pointed out, A2h explicitly advocated that the burden of proof be reversed.
The suggestion is, that because of the burden of proof, the defense doesn’t have to show evidence that real, legal consent occurred. If the prosecution says consent wasn’t given, the defence doesn’t have to prove it was, they just have to raise reasonable doubt about the prosecutions case that consent wasn’t given. So talk about ‘evidence of consent’ when the case hangs upon evidence of non-consent being provided by the prosecution is kind of a shift the other way.
I admit criminal cases that end by being kicked into uncertainty (not proved guilty, but doubts over innocence) do leave me feeling very comfortable.
That’s true in general, but there is a legal concept of an affirmative defence, where the burden of proof is laid on the defence to some degree. An example would be a “self-defence” defence to murder. The defendant would need explicitly to plead that defence, and to adduce evidence in support, in order to shift the burden onto the prosecution to show that the elements of the defence don’t apply.
A2H is arguing that the default status between humans is non-consent to sex. I agree with that. but she is also arguing that burden of proof should be on the defense to show that the alleged victim consented, i.e., that ‘consent’ should be an affirmative defence. This I do not agree with.
Me:
A2H
Um yes, that is explicitly a reversal of the burden of proof. Saying “no it isn’t” doesn’t make it not so.
Daran:
No, what I’m arguing is that people inside and outside of a courtroom, judge consent based on what true, legal consent is, not on the basis of stereotypes about consent and rape.
What defense teams do and often get away with is play upon people’s biases about rape to disguise the fact that there was no true, legal consent.
I agree with a lot of what has been said here. Unfortunately, it is always going to be hard to put away men who commit non-violent rape. It’s usually he-said, she-said, and when that’s the case, creating reasonable doubt is relatively easy. That doesn’t mean that the rape didn’t happen or that the victim wasn’t traumatized. (However, sex with an unconscious or senselessly intoxicated person is always rape – no question)
If women are going to be in charge of our own bodies and our own sexuality, then we need to be ready to make our wishes very clear, and to defend them if necessary. That’s part of being an adult. If we can’t resist emotional manipulation, can’t make a fuss if we’re in danger, and can’t make ourselves into difficult targets (and by that I mean being ready to resist violent acts, verbally and if necessary, physically) then we are going to continue to be helpless victims.
I really do feel bad for women who aren’t strong enough to state their wishes clearly and to stand up for themselves, but that kind of woman is going to be bullied into a lot of things she doesn’t want, and not just sexually. We need to raise our girls to be strong, not to be dependent on men to be Good and to protect them (because they won’t always), or on the legal system to remedy their silence after the fact – because the burden of proof is always going to be on the accuser.
Even more importantly, we need to stop raising our boys to be potential rapists. What do these guys tell themselves? Why do so many men think it’s all right to try to intimidate women into having sex with them? In todays world, it’s not too difficult to find a willing partner. What kind of sicko would rather have an unwilling partner, and why is this so common? Is it some kind of anti-feminist backlash? Is it anger over a frustrated feeling of entitlement?
Well, maybe the boys have got to get over the entitlement. Maybe we’ve got to stop telling our sons that they’re God’s gift to the world. Maybe we need to teach them a sense of proportion and ask them to think about other people – including women and others who are different from them – and to respect them as equals.
We are socializing boys to be rapists and girls to be victims, and that’s at the root of the problem. The legal system can’t make this right. We have to do it ourselves.
Dee:
You can’t make a fuss if you don’t know you are in danger. I knew my rapist my entire life and never would have imagined that he would rape me until it happened. Even then I couldn’t believe it.
The problem was his, not mine.
It solves nothing by blaming the victim and only adds justification to those who say rape victims had it coming to them.
Dee:
Being a rape victim has nothing to do with not being strong enough to state our wishes. Mine were stated clearly and never wavered. That someone I trusted looked for a way around my wishes is not a sign of my weakness, but of his lack of ethics and disregard for me as a human being while acting in ways that made him appear to have ethics and a high regard for me as a human being.
The myth of the rape victim who gets raped because of low self-esteem is just that a myth. She gets raped because someone decides that consent is not necessary and trickery is an acceptable substitute for consent.
Mickle,
I totally agree. A huge problem is confusion over “what is consent?”
What I’m referring to is, more generally, how to prove consent was given. It’s the same problem Abyss2hope is complaining about in the original post–how to prove consent was not given, in the absence of physical evidence of a struggle–but flipped, and I’m saying it’s just as hard to prove the one way as it is the other.
Sure, the responsibility for verbal confirmation can be assigned to whichever party you like, but you’re still left with the problem that, after the sex, with no physical evidence either way, one party says it was consensual, the other doesn’t.* I don’t see how that’s an improvement, and we can accept all 4 of your points without having to address this problem.
*I’m discounting cases like you mentioned where acts were videotaped, because those are the easy cases.
I’m not talking about legal issues–I’m talking about the impossibility of proof in general–as Dee said, this sort of thing gets to he said-she said, and there’s simply not going to be proof that there was consent to particular sex acts, absent videotape or witnesses (and sometimes even with those) (and for most cases, I doubt there will be videotape or witnesses).
My thoughts is this is the same problem with courts recognizing abusive situations, especially where abuse is not physical, or even physical in the way that leaves bruises and other physical damage.
What is often ignored in both cases is the situation, which often creates a power differential. A woman who is coerced in any way to say yes is not giving consent in any meaningful sense of the word. But a situation like abyss describes where a woman is not allowed to leave until she agrees to have sex is viewed wrongly as giving consent, or at least can be viewed by the rapist as a meaningful consent when it just isn’t the case.
Agnostic:
Often the information is there if people focus in on the right areas. When something that is not true consent (she didn’t leave when she could have) is presented as proof of consent that is significant and revealing.
megalodon and Abyss2hope both asked a version of this:
I wonder what kind of proof there can be for consent.
I’d like to see this answered. Absent proof of coercion (violent or non-violent), how would a defendant prove consent?
I don’t think she was trying to say that “consent” should be an affirmative defense because that would be illogical. What defense can you provide for raping someone? I understand an affirmative defense might work for a charge of murder because you might have had to kill the person to defend yourself but there is no reason for raping someone as a defense.
And what would qualify as valid evidence of consent that the defense could present?
I’m not referring to assertions like “she didn’t scream” or “she didn’t resist.” We know that the absence of resistance does not establish that the copulation was consentual. That’s been made abundantly clear.
If the accused rapist denies the charge and says that the alleged victim explicitly said, “yes,” that the copulation was explicitly consented to, then what kind of evidence can the defense present to support this assertion?
Why?
Putting aside the possibility of consensual roleplaying, if I know for a fact that A had sex with B while B was screaming “No! No! Stop! Get off me right this instant!,” etc., to me that proves that A raped B. There is no scenario, apart from consensual roleplaying, in which A can have sex with B while B screams for A to stop, that is not rape.
In contrast, if I know for a fact that A had sex with B while B was not screaming, that does not prove that no rape occurred. There are many scenarios in which A can rape B without B screaming.
In other words, screaming “no! no! stop!” is
adequatesufficient but not essential proof of rape. What’s incoherent about that?[Edited to make examples clearer.]
SmartBlkWoman:
1. You didn’t have sex with them.
2. They consented.
Your defences are, among others:
1. You didn’t kill them.
2. You were defending yourself.
What makes “self-defence” an affirmative defence is that it must be plead by the defendant, who bears the initial burden of proof, which appear to be exactly what A2H is advocating in respect of a consent defence to rape.
I don’t think this is illogical. It comes down to how you conceptualise rape: “non-consensual sex is rape” vs. “sex is rape, unless it’s consensual”.
Megalodon:
The defense can present evidence that shows that the alleged victim was not being controlled by the alleged rapist when consent was given. When key details of the alleged victim’s story are false, the defense can present evidence of what really happened. In a case in England, the alleged victim’s story was shown to be false by physical evidence that linked her to a location other than where the rape was supposed to happen.
In this case, was the accused denying that the copulation was nonconsensual, or did the accused deny that any sexual encounter happened at all? This example only seems to present ways in which the accused can prove that no sexual encounter happened.
Your proposal and scenario seemed to invoke cases in which both sides stipulate to sexual activity having occurred but disagree over the matter of consent. If the accused denies that it was rape and asserts that the alleged victim gave legitimate consent, what kind of evidence can be presented to prove this?
Okay, what would qualify as valid evidence that the alleged victim was not being controlled by the alleged rapist when consent was given? We were originally asking what kind of evidence could be presented to prove that consent was given. You now seem to be suggesting that the defense must also submit evidence of the background conditions to establish that the consent was not given under duress or coercion. The addition of this new requirement does not answer the original question of what qualifies as presentable evidence of consent.
But those are not affirmative defenses; those examples would be a plead that no crime that took place ( like saying “no I didn’t kill him” vs “yes I did kill him but I have a reason for doing so”). I am thinking that an affirmative defense would be like saying that “yes, I did rape her, but I have a reason for doing so”, that’s why I was saying I don’t think there can be an affirmative defense for rape.
I think we have just been misunderstanding each other.
What makes the defense affirmative is that the defendant must present evidence to prove the assertion. In most jurisdictions, self-defense and justification are affirmative defenses.
However, lots of states write the laws so that the defendant claiming this defense has the burden to present evidence to support it (some states are revising their statutes on that due to recent cases). The defense is not presumed true.
If the claim of self-defense is true, then it would seem that no crime had been committed. For an affirmative defense like insanity, they’re probably not saying it was “okay” to kill or hurt that person, but that only mentally rational persons should be held responsible for criminal acts, etc. We probably look at valid self-defense as morally different from an insanity-driven killing, but legally, they are both affirmative defenses. Would “insanity” be a valid defense to a rape charge?
Who said anything about proving rape didn’t occur? The defences task is to show reasonable doubt.
Given a particular set of facts, and an (initially unknown) indicator, it is mathematically impossible for the positive indicator to increase the likelihood of actual guilt, without the negative indicator decreasing the probability.
Suppose, for the sake of argument, that there is a 1 in 10 chance that someone will be raped in the house next door this evening. Suppose that if someone is raped, there is a 50% chance that they will scream loudly enough for you to hear and that if they are not raped, they will certainly not scream. What is the probability of a rape given that you hear a scream? Answer: it’s a certainty. What is the probability given that you don’t hear a scream? Answer 1 in 19. The probability goes down. It must do. There is no other mathematical possibility.
Abyss2hope, you know that I wholeheartedly agree with every word you’ve written. What seems to have happened is that the discussion has bogged down into playing dream team for the defense. Here’s the most important part of A2h’s analogy, in my mind: the jury in an embezzlement case does not enter the courtroom with an open mind as to whether a crime has taken place. The jury in a rape case does. The jury in either case is required to presume the innocence of the accused, but only in the latter is there also a presumption of no crime having been committed.
With a murder case it’s pretty clear cut. There has to be at least some portion of a corpse. No body, no trial. But the embezzlement case is an excellent choice for comparison. A. reports to the police that bookkeeper B. seems to have embezzled $60k. Because the accused is the bookkeeper, the paper trail is unlikely to be very clear, there will be little or no physical evidence. Nonetheless, the police investigate and the DA decides there is enough evidence to go to trial. The jury does not enter the courtroom wondering if there is really such a thing as embezzlement; they do not refer to the case as “he said/she said”; they do not listen to the evidence all the while thinking “well, yeah, your business makes a bunch of money, of course your employees are going to try to steal it all”; the jury doesn’t say “where’s the proof that A didn’t agree to having money stolen?”, or that A specifically warned B not to take any; the jury is not swayed by arguments that B has a very nice income and receives lucrative job offers all the time; etc.
In this embezzlement case the presumption of innocence is restricted to one question: is B. the one who did the crime? But in rape cases, too many people seem to feel that the presumption of innocence means presuming that nothing criminal happened.
How about: not filing a police report?
I’m thinking of the last time I had sex. She came to my flat. We had consensual sex. She left. How would I prove that it was consensual? How would she prove it was consensual if I falsely accused her?
What exactly do you mean?
“What exactly do you mean?”
I think she means that if the woman doesn’t file a police report, she doesn’t because it means she consented.
But many women who are raped also don’t file police reports.
Okay, but the original question was what kind of evidence can the accused present to refute a declared accusation of rape? This would imply that a police report and criminal complaint have already been filed.
Abyss2hope wrote:
Often the information is there if people focus in on the right areas. When something that is not true consent (she didn’t leave when she could have) is presented as proof of consent that is significant and revealing.
—
Yes, claims that x proves consent when in fact x proves nothing are a problem. But that only underlines my point, which is that there’s really no action that can prove consent short of saying “I consent,” and when that’s contested, there’s no way to prove consent at all.
I’ve had sex where I wasn’t all that enthusiastic but went along. My partners didn’t apply any coercion beyond the sad puppy-dog face, and there was no violence, videotape, or witnesses. Were I to have claimed not to have consented, they would have absolutely no way of proving I had, or that they hadn’t coerced me in some subtle way. Similarly, if they had applied verbal coercion, and I’d still gone along, I’d have no way of proving they had coerced me. (For that matter, I’ve happily had sex without saying much in particular, so even though I consented my partners would find it impossible to prove that I had, should they need to).
Shifting the burden of impossible proof from one party to the other isn’t going to fix anything, or solve the real problem, which is that people claim as consent actions that are, in fact, not consent (or claim as consent a lack of actions that would clearly indicate nonconsent).
Thinking about Kaethe’s statement (“How about: not filing a police report?”), maybe a woman’s filing of a police report is already prima facie evidence that consent was not given.
Maybe this would be a system: Still allow a jury to make a decision, and have the defense say what it wants, but have jury instructions that tell a jury to consider that the woman herself has stated she didn’t give consent (and she’s the one who would know). Who else would know whether she gave consent but she herself?
What on earth gives you that idea? Regardless of whether the jury does or does not have an open mind (which is a psychological question which presumably varies from jury to jury) the prosecution must prove that money was taken, that it was taken by the accused, and it was either taken or used in an unlawful manner.
Where embezzlement differs from rape is that evidence that the alleged rapist’s actions were approved by the complainant tends to exonerate the defendant, while evidence that an alleged embezzler’s actions were authorised by the officers of the organisation tends to implicate those officers in the fraud.
The issues on how to defend yourself if you are falsely accused are not unique to rape or to rape between people who know each other, but many people are responding as if these issues are unique and therefore reports of rape should rarely result in criminal charges and that the whole criminal justice system, including the rape laws, should adjust itself to make men less anxious that they will be accused of rape.
This seems to go back to the myth that in most criminal charges no rape occurred — or if a rape did happen no real harm was done.
A2H
You’re recommending something that I’ve been thinking about for a long time. The problem is that, under a “reasonable person” standard, you can’t prove that social norms are such that every act of consensual sex will have a clear adknowledgement of consent. Under every system of Western law, you have to establish some kind of culpable mindset on the part of the perpetrator — and it’s not clear, under what you propose, that such a culpable mindset exists.
Rather than making consent always an affirmative defense, though, what you could do is change the standard of evidence as it relates to mens rea. The requirement that the prosecution prove resistance is related to their need to prove malice aforethought — as in, in order to susbstantiate a rape conviction, the perpetrator must know that they are performing a sexual act without the consent of the victim. This is the same standard of evidence used in murder, robbery, embezzlement, et cetera.
Changing the standard of evidence in rape convictions to recklessness or negligence would change what is required on the part of the prosecution. 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.
Would this be a reasonable compromise?
— ACS
The distinction, I think, is between acts where what makes it a crime is someone’s motivation. For rape and murder, there are two possible exonerations–“I didn’t do it,” and “the other person consented/was trying to kill me too.” If you have sex and the other person doesn’t consent, it’s rape. If you kill someone and they’re not also trying to kill you, it’s murder. In each case, if there are no witnesses/recordings there’s no way to prove whether there was consent/intent to kill.
But with crimes like theft/embezzlement/etc, there’s only the “I didn’t do it” exonertion.
What I’m saying is that what’s needed is for people to understand that no means no, and the simple absence of no does not mean yes. That, rather than shifting the burden of proof from one thing that’s impossible to prove (“I didn’t consent”) to another (“(s)he consented”).
*I’m discounting cases like you mentioned where acts were videotaped, because those are the easy cases.
But. They’re. Not.
If they were, a lot of us here would be arguing about other things instead. It’s exactly because such cases are not easy that Abyss2hope and the other posters here are continually trying to break down and tear apart rape myths.
Sure, the responsibility for verbal confirmation can be assigned to whichever party you like….
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. The very idea that assigning that responsibility doesn’t matter contradicts your assertion that you agree that most people are confused about consent. If it doesn’t matter who is responsible, what confusion do you see regarding consent?
As I said before, theoretically, these cases should be a lot of “he said, she said.” Unfortunately, most often they are not because, as abyss2hope has pointed out, things that should not count as consent are given as proof of such. When the absence of screaming and physically fighting back can be counted as sufficient proof of innocence, it’s not really “he said, she said” in the way most people mean the term. It instead becomes a question of her worthiness.
If you are talking hypotheticals – about some far off future where the average jury understands consent – then yes, it will often be “he said, she said”* and because of reasonable doubt (and court costs), there will still be a significant number of cases of rape that do not lead to convictions. The same is true of every crime. The person that slashed my tires a few months ago will never see the inside of a courtroom – not for what s/he did to me anyway. You may know one of your employees stole those CD’s – but without proof there will be no conviction. This is one of the big reasons why I thought the whole “you shouldn’t call it rape unless it’s legally rape” argument was extremely stupid.
*I would venture that (in this future utopia) this will happen less often, however, since potential victims who understand consent – legally and morally – will have more resources at their disposal for helping themselves and potential rapists who understand consent are more likely to stay only potentially rapists.
Which, in the end, is another big part of why we insist on defining rape in ways other than what the law says it is.
OK, let me rephrase: They’re the easy cases for people who have reasonable notions of consent–i.e, people who will look at a videotape of an unconscious woman being tortured and conclude that consent was not given.
The fact that many people get that wrong doesn’t make it not an easy case–it makes many people’s understanding of consent pathetically bad.
Agnostic:
That isn’t true. Someone could have taken the money, but did so according to company policy while the employer claims expense reports and/or other financial documents were falsified. So there can be a defense of “I took the money but had permission to do so.” The big difference in embezzlement cases is that the case centers on whether or not the person had proper authorization to take the money not on notions of asking for it (boss didn’t give you the raise you were promised so you went ahead and found a way to get what you were owed and therefore you should be found not guilty) or attempting to prove innocence by slandering the alleged victim’s overall character (boss doesn’t care what the employees do and let’s other employees get away with stealing so why should you be punished for doing what everyone at that company is doing).
Agnostic:
Exactly, and defense attorneys exploit this lack of understanding with glee while calling a basic failure to understand legal consent reasonable doubt.
What many people have doubt about is the definition of legal consent and whether that definition should be enforced. I knew a woman whose rapist admitted on the stand that he knew he didn’t have consent when he forced sex on her, but the jury still found him not guilty.
When the absence of screaming and physically fighting back can be counted as sufficient proof of innocence,
Ah, no. It’s not considered proof of innocence. It’s considered a lack of evidence of guilt. There’s a difference.
A defendant does not have to prove themselves innocent in an American courtroom. What they have to do is establish reasonable doubt that a crime occurred. If the complainant has witnesses that testify that he or she actively withheld consent but that the other person proceeded anyway, then there’s no reasonable doubt that the act proceeded without consent. The absence of such testimony removes that particular avenue of providing proof beyond a reasonable doubt, but it does not prove consent and does not prove innocence. The complainant is still free to provide some other means of showing that there was a lack of consent.
With regard to embezzlement:
But in the case of the “I had permission” exoneration for embezzlement, we can look at documents, company policy, etc, and conclude whether they did or did not have permission. People tend not to leave paper trails when consenting or not consenting to sex.
Compare it to a different kind of assault: If I, with no injuries, claim that you put me in a painful wrestling hold(there are many that leave no marks) and wouldn’t let go, would it make any sense to make you prove that we were just horsing around and you stopped when I said uncle?
With regard to the easy cases:
I’m sure there are many more cases like the one you cite. In retrospect, I really ought to have clarified what I meant by “easy cases”–now that I think of it, they’re easy in the same way that common sense is said to be common.
ACS:
It makes sense for there to be a classification of sexual assault that uses this standard.
Agnostic:
Not necessarily. I’ve worked at several small companies where all policies were verbal and the permission to withdraw funds was also verbal. Even paid holidays were communicated verbally rather than through written policy. So the only documents would be checks that contained unauthorized amounts.
Megalodon:
The defense stated that the sex was consensual. By the age of the alleged victim (16) and the alleged rapist’s age (20s), I’m not sure if the man could have been prosecuted under statutory rape laws.
I hadn’t considered the existence of such firms. In this day and age, I’d think that’s a bad idea, but I guess it worked for these companies.
Still, that pushes embezzlement at those firms into the category of “crimes determined by hearsay.” If the boss said “Deposit that check” (s)he meant “deposit that check,” and the likelihood that (s)he meant something else is minimal. If one party says “Alright, let’s have sex” they can still be being coerced, so a simple statement of consent isn’t enough without context (of course, there can be context explaining why the boss would say “deposit that check” without meaning it, but those are far less likely).
For those who say the mere claim of “it was consensual” with no supporting evidence provides reasonable doubt, why doesn’t a defendant’s claim (in other types of cases) of “it wasn’t me” constitute reasonable doubt when there is no evidence to support this claim?
In many stranger crimes, the wrong person does get identified and as DNA exonerations have shown (including one carjacking), the wrong person can get convicted.
Is it that you feel you and those you know are safe from being accused and convicted of non-sexual crimes?
The reason I ask the question is that the prosecution’s evidence of “it was rape” seems to be immaterial to many commenters who are making the one-to-one linkage between the “it was consensual” claim and reasonable doubt. That disregard for the prosecution’s evidence seems to make it more a matter of bias than true evidence under a system of innocent until proven guilty.
I’m still not clear exactly what you’re advocating. One thing that’s confusing me is that I’m not sure what you mean by — in your original post — “true, legal consent.”
Let’s say that a consensual sexual encounter takes place in which there’s no verbalization of consent. Two people, A and B, are alone, A kisses B, and it progresses from there, with A taking the lead throughout.
Was there “true, legal consent” in that encounter? If so, how would you envision A offering proof of that consent in a court of law?
Nonononononono. Seriously. Can anyone think of another felony where the defense is “there wasn’t a crime”? A defendant is not required to prove innocence, the burden of proof is on the prosecution, but the default defense would be an alibi, wouldn’t it? Wasn’t me, I was somewhere else. I would guess that in the vast majority of cases, defense is based on some variation of “not me”.
Of course, there are plea bargains, and often charges are reduced from the harshest felony down to something else. I don’t know about sex crimes and plea bargains, but I’m wondering if it is common to charge with rape but accept a plea of sexual misconduct, which depending on the state, might be the lower standard crime, not unlike negligence. Off to see what I can find.
Sure. Any time self-defense, necessity, or legal impossibility are used as criminal defenses, the defense boils down to “there wasn’t a crime.” Consent, in rape cases, is a variation.
— ACS
This is such a hugely important issue. More often than not, when someone confides in me about their rape, they are in denial about it, because of stuff like this. Society has so convinced them that they must have done something wrong, or asked for it in some way, they don’t even feel like they can lay claim that a crime was committed against them. If they knew the rapist, if they were drinking, if they went to the rapist’s house willingly–any of these factors makes them think it was their fault. Check out my blog for more musings of a young nonprofit intern.
“Was there “true, legal consent” in that encounter? If so, how would you envision A offering proof of that consent in a court of law? ”
Enthusiasm – which is very different from simply not fighting.
(Of course, I also find the idea of one person always taking the lead in non-verbalized consensual sex to be extremely unrealistic. Unless you don’t count voluntarily placing one’s hands in intimate places to be “taking the lead.”)
I suspect that the jury will at times choose to aquit simply because of reasonable doubt. However, that doesn’t mean that such a basic scenario could never be obviously rape when the details are added in, and therefore, the law should allow for such cases to be prosecuted if the state and/or victim feels a need to do so.
Brooklynite:
Is B also progressing or is it all A acting upon B? If B is showing any signs of reluctance or resistance or lack of response, that needs to be respected and if it isn’t that should be a huge red flag that this could be a rape situation.
Right, self-defense I get, but what does necessity or legal impossibility mean, and against what crimes are the used?
So if B moaned approvingly or caressed A, A would testify to that, and that would constitute evidence of “real, legal consent”?
If I understand you correctly, you’re saying that if B passively acquiesces, A shouldn’t be able to present that acquiescence as evidence of consent. Is that right?
The issues on how to defend yourself if you are falsely accused are not unique to rape or to rape between people who know each other, but many people are responding as if these issues are unique and therefore reports of rape should rarely result in criminal charges and that the whole criminal justice system, including the rape laws, should adjust itself to make men less anxious that they will be accused of rape.
This seems to go back to the myth that in most criminal charges no rape occurred — or if a rape did happen no real harm was done.
The issues in rape are unique, though, for the reasons you outlined above. Robbery, assault, and murder are crimes that involve acts which are impossible, legally, to consent to. One cannot be brained consensually with a hammer. From that perspective, whether or not the victim consented to the crime is irrelevant, and any focus on the victim’s actions prior to, during, or after the crime is likewise irrelevant.
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.
— ACS
I think the iconic legal impossibility case is one where someone shoots at a deer decoy out of season, is arrested for poaching, and is freed on appeal because they did not actually commit the crime alleged — even though they attempted to shoot a deer out of season, they could not actually have committed the crime because no deer existed. It’s a relatively common defense in sting operations where, for instance, the defendant tried to buy what he believed were stolen goods from the police, then was arrested by the police for purchasing stolen goods. As the police did not actually steal the goods, the goods were therefore not stolen and the act was legal, even though the perpetrator believed the act to be illegal.
The clearest thing I can think of to illustrate necessity is cannibalism. While it’s illegal to eat another human, it becomes legal when necessary to save your own life. If your husband is having a heart attack, you have no vehicle, and there’s a car with the keys in the ignition nearby, necessity may dictate that you take the car and your husband to the hospital, even though you’re technically stealing the car.
— ACS
“If I understand you correctly, you’re saying that if B passively acquiesces, A shouldn’t be able to present that acquiescence as evidence of consent. Is that right?”
I’m saying it’s anything but conclusively exonnerating and that if that’s all the evidence one has – one doesn’t have much of case for defense.
(Or shouldn’t, anyway, the reality is very different).
“and that the perpetrator knew, or should have known, that the intercourse was non-consensual.”
That’s the part I’m not understanding. I understand that the law is written that way now, and I can see there being different levels of sexuall assault depending on whether or not the rapist knew what he was doing, but usually intent is only a part of the definition of a criminal act, not something that the definition always rests upon.
I suppose the “should have known” covers what I’m trying to say – but if the act is a crime, it’s a crime whether the person committing the crime knew the law was being broken or not.
It’s not like it matters if I bothered to check my spedometer.
And yes, I realize that’s why you added in “should have known.” It just seems, when it comes to rape, that “should have known” isn’t really taken seriously. Thus why anything short of screaming and fighting is considered consent. It’s as if suddenly we don’t really think the person accused of the crime should be charged with it if they forgot to check the spedometer.
Since this is every kid’s favorite way of getting away with stuff they know is wrong (making a point of not asking permission and then claiming “but you never said no!”) it’s always seemed like a pretty weak defense to me.
Brooklynite:
A can present it as evidence, but depending on the evidence that the prosecution has, the jury will decide whether in fact what the defense says is passive consent really could be legal consent. If B is passive from first contact and never responds with any clearly positive actions and the defense never argues that the alleged victim had any positive response to A’s “taking the lead” and the prosecution provides evidence that the alleged victim was incapacited with alcohol, the defense’s so-called proof of consent actually supports the prosecution’s case.
The age of consent for heterosexual sex in England is 16 and has never been higher than 16. The age of consent for male homosexual sex was recently reduced from 18 to 16. At the same time, the age of consent for lesbian sex was established as 16. Prior to that there had been no age of consent.
If someone is drunk to incapacity then they are incapable of consenting.
If someone does not “lead”, does not give a “positive response” to the defendant’s lead, and has not expressed consent in some other way, then they are non-consenting.
If that is not what the law says, then the law should be changed.
It would not be “theft” in the UK at least, because that crime requires the intent permanently to deprive. The technical offence committed would be “taking and driving away”. I believe it is possible to plead “necessity” as an affirmative defence.
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). By the time the sex happens, there’s no way for legal consent to exist, but the person isn’t being raped – they’re having what they wanted to have happen. This isn’t a healthy choice on their part, IMHO, but it isn’t my business.
I suppose you could view that as having “consented in some other way”, but the person involved might well not have told anyone of their plan or their intention.
I believe that feminists are right on the issue of consent, and that the education of boys and girls should include an inculcation of the concept that “consent” means “enthusiastic choice to participate”, not “she didn’t say no”. Making that a widespread cultural value will do more to reduce rape than any amount of legal system changes.
I see that, but, I give people money all the time or gifts which would be a consenual passing of money or goods, boxing would be consenting version of assault, and assisted suicide would be consenual murder, wouldn’t it? I’m really asking.
ACS:
Whether that is true or not depends upon the jurisdiction.
But we’re talking about what we think the law should say. In my opinion the elements of the crime should be 1 that an act of sexual intercourse was committed 2 by the defendant 3 upon the complainant 4 to which complainant was not consenting.
“Was not consenting” rather than “did not consent” to make it clear that consent, once granted, can be withdrawn.
Mens rea should come in as an affirmative defence. If the prosecution can prove those four elements, then the burden should shift to the defence if it wishes to argue 5 that it was reasonable under the circumstances for the defendant to believe that the complainant was consenting. If the defence is able to prove this, then the prosecution should get one last shot: Can it prove 6 that defendant in fact did not believe that the complainant was consenting.
This differs from your formulation in two ways. It is not sufficient, under my formulation, for the defendant to argue that he did not know, and could not have known that the complainant was non-consenting. He must plead a positive reasonable belief that she was consenting. Secondly I put the burden of proof on the defence to show that this belief was reasonable. If the prosecution is able to meet its burden of proving that the complainant was not consenting, then it is presumptively unreasonable for the defendant to have believed that she was.
Yes, unless B was incapacitated.
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.
If it’s truly passive, then it’s not consent.
Exactly. The difference between (consensual) sex and rape is the same as the difference between accepting a gift and stealing, visiting and tresspassing, or wrestling/play-fighting and assault. 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?
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.
I agree that some people get drunk with the intention of having sex. I do not agree that this fact absolves anyone of the responsibility of ensuring that their partner really is consenting. If that means at times I might have passed up on the opportunity to have sex with a drunk person who might actually have been willing, then so be it.
Daran, the elements you’ve laid out sound good to me. As I learned from those who work with sex offenders most of them have a pathetic understanding of sexual boundaries and how to interact with others sexually without violating other people’s boundaries.
Kaethe:
Necessity: “Your honour, it’s true I was speeding, but my wife had gone into labour and I was taking her to hospital.”
Legal impossibility: A man was arrested at an airport on suspicion of smuggling gold. The bars he had hidden in his luggage proved to be Pyrite (fool’s gold). He had been defrauded himself when he bought them. Charges were dropped on the grounds that, because there was no gold, it was legally impossible for him to have been smuggling it.
You can argue just that. The jury is entitled not to believe you.
So, the jury is entitled to a “guilty” verdict with utterly no evidence that the act was nonconsensual? Isn’t that violating the presumption of innocence and the standard that the burden of proof rests with the prosecutor?
So, the jury is entitled to a “guilty” verdict with utterly no evidence that the act was nonconsensual?
Not at all. But a statement of “I didn’t consent” is perfectly good evidence that there wasn’t consent. (And a statement of “Yes she did, I heard her clearly say yes” is perfectly good evidence that there was consent.) When/if those statements conflict, then the jury is tasked with determining which piece of evidence makes the most sense.
It’s imperfect but it’s how jury systems work – sorting out the evidence and trying to figure out what really happened. This would all be EASY if we just had omniscopes, but we don’t.
Ok; that’s where I am on it, too. (I misread the tone of your other post actually, and didn’t realize we were agreeing.)
Nonononononono. Seriously. Can anyone think of another felony where the defense is “there wasn’t a crime”?
“Not guilty to murder, your honour. The alledged victim died of natural causes”.
I think you are missing the point. The complainant’s testimony that “it was non-consensual”, with no supporting evidence may leave room for reasonable doubt. If the complainant didn’t struggle, and didn’t scream (or even if she did, and wasn’t heard) then it’s unlikely that there will be evidence to support her testimony. The defence is entitled to point out the lack of supporting evidence.
Which is a bad thing, which happens in rape cases too.
I personally feel very safe from being accused of any crime. My concern is not for myself but for others.
The problem is that it is no less a matter of bias under a system of guilty until proven innocent. I strongly suspect that most rape cases are decided based more on prejudice than evidence regardless of whether the result is a conviction or an acquittal. If that’s true then we should be very concerned about the convictions that do occur, and very hesitant to suggest changes that make it harder to defend cases without making it easier to decide them correctly.
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?”
In the context of an alleged theft/gift, a jury is entitled to regard your account of having been given that priceless antique ming vase by someone you’d just met to be so implausible as to be beyond reasonable doubt.
They’re entitled to make the same judgement about a defendant’s claim that sex was consensual. On the other hand, women do sometimes consent to sex with people they’ve only just met, so a jury might decide that it’s plausible after all.
Because he or she has something that belongs to you.
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 tresspassing arrest. Or “this guy took a valuable item from my home without my permission, but I went to his house and got it back.” Or even “this acquaintance of mine hit me yesterday, but I don’t have any bruises.”
In crimes in which there’s no evidence of wrongdoing beyond the victim’s say-so, no observable physical damage done, and no witnesses, police and prosecutorial indifference to crime is the rule rather than the exception, in my experience.
That all makes sense to me, thanks.
That should, of course, have read “because you have something that belongs to him or her.”
“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 tresspassing arrest. Or “this guy took a valuable item from my home without my permission, but I went to his house and got it back.” Or even “this acquaintance of mine hit me yesterday, but I don’t have any bruises.” ”
EXACTLY.
If she says “NO” and you are to get the fuck out of there, a jury should see right away that “no means no”. Unfortunately, juries don’t always believe women (yeah, as if they would really lie ab0ut something to get up on the stand to be cross-examined.).
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 ?
Thank You. :/
“Unfortunately, juries don’t always believe women (yeah, as if they would really lie ab0ut something to get up on the stand to be cross-examined.).”
Some do, and some have.
I understand the problem from the side of the accuser–and yeah, I agree with the original post about “but she didn’t scream” (et cetera) not proving consent–but if it *does* come down to he said/she said, to no intoxication or screaming or any of the most obvious proofs of rape, and at the end she says “I didn’t consent” and he says “she did consent”, in that I-hope-very-small percentage of cases, any jury *should* find that there is reasonable doubt that rape occurred.
“In the context of an alleged theft/gift, a jury is entitled to regard your account of having been given that priceless antique ming vase by someone you’d just met to be so implausible as to be beyond reasonable doubt.”
But the “total stranger” rape narrative is false. A more reasonable analogy is if I had something of my best friend’s and she said that I had stolen it. Still imperfect, because if she contacted me saying she wanted any gift that she gave me back I’d give it back but you can’t un-have sex with someone, but closer. If it’s something that people often give to each other, or that we gave to each other all the time (a book, for instance), and she made no recorded effort to get it back and took me to court saying that I’d stolen it when I said that she’d given it to me, there should be a finding of reasonable doubt in *that* case, too, I think.
Daran:
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.”
Gwen:
For a case to go to trial, the details are going to be much more specific than “I didn’t consent” and “I didn’t rape.” It is in those details that the reality shows itself if the court and the jurors cooperate to keep the focus on actions which reveal what really happened and what those actions really mean.
“how can we ensure that rapists stop raping…”
How can we ensure that [blank] stop [blanking]…?
We can’t. The threat of incarceration is not a universal deterrent. Even in cultures that punished rape with death without trial, rape continued. Your suggested changes in basic legal principles will not raise the deterrence factor without education, and just exactly how do you educate a populace the vast bulk of whom pay no attention whatsoever to news? The schools? Oh please, public schooling has enough problem teaching a small minority of kids to read above the fifth grade level, let alone understand as advanced a concept as ‘consent’.
“that rape victims are treated with the respect and care they deserve rather than being treated like they committed a crime”
That is a totally unrelated problem that begins, as the Duke rape case shows, long before the first investigator appears before a judge to request a search warrant.