Reader MB sent me a link to this story:
A new ICM opinion poll commissioned by Amnesty International indicates that a third (34%) of people in the UK believe that a woman is partially or totally responsible for being raped if she has behaved in a flirtatious manner. The poll, ‘Sexual Assault Research’, published today (21 November) as part of Amnesty International’s ‘Stop Violence Against Women’ campaign, shows that similar “blame culture” attitudes exist over clothing, drinking, perceived promiscuity, personal safety and whether a woman has clearly said “no” to the man. For instance, more than a quarter (26%) of those asked said that they thought a women was partially or totally responsible for being raped if she was wearing sexy or revealing clothing, and more than one in five (22%) held the same view if a woman had had many sexual partners. Around one in 12 people (8%) believed that a woman was totally responsible for being raped if she’d had many sexual partners. Similarly, more than a quarter of people (30%) said that a woman was partially or totally responsible for being raped if she was drunk, and more than a third (37%) held the same view if the woman had failed to clearly say “no” to the man. UPDATE: See also Volsunga’s post. UPDATE 2: And The F Word. UPDATE 3: Mind the Gap has a list of links.
If anyone's shopping for nightmare scenarios, I have some. Scenario 1: Trump succeeds in deporting a significant percent of immigrants,…
Mendy, women would not have any reason to disbelieve other women were it not for the example set by men.
Eh? How about they might disbelieve other women because they’re aware that other women, being human beings, sometimes lie? This seem like you’re saying women are helpless to make their own decisions – oops, some men did something and now we have to copy them. Surely that isn’t what you mean?
Which state’s rape shield law are you referring to, specifically? I haven’t read every state’s rape shield law, but the several I have read all allow the judge to admit evidence about the accuser’s past if the judge thinks it’s relevant to the case.
ginmar,
I don’t agree that it is because women are copying an example set by men per se. I see some of the same kind of competitive, negative behavior exhibited in groups of my daughter’s friends (and they are not at the age where a boy’s opinion really matters much) to ostracize a girl for being different or saying something that goes against the “group”.
So, I believe that women can and do make fun of, blame other women for reasons other than “I have to be one of the guys.”
And I’ve also wondered about socialization. Most kids are socialized by their parents, in the traditional model of my parent’s generation this had the Dad out of the house and Mom at home. Mom did almost all of the education in regards to how boys treat girls, girls treat boys, and how people should behave.
I’m just wondering if women are also unintentionally perpetrating male privilege in the way they raise their children.
i live in illinois, and just recently this case happened. also you can have a look at the rape statutes here. judges do have some discretion, but as in the case of Kobe Bryant, even the accuser’s acts after the alledged attack are technically not admissible. for instance, past allegations of rape fall under rape shield laws.
Your link doesn’t support what you’re saying it does, jake. It also isn’t a link to the statutes; it’s a link to a cached page of a prosecutors’ summary, current as of mid-2003, of various states’ rape-shield laws.
Taking your link at face value, Illinois’s law has an exception when the accuser’s history “is relevant and its probative value outweighs danger of unfair prejudice”. That’s a pretty big exception and there’s room for the judge’s discretion. “Relevant” and “probative value” would include allowing the defense to show that injuries or semen came from having sex with another man, or that the accuser was not a virgin if she is claiming the defendant was the first man she ever had sex with.
defendants are offered no such protection.
This is flat-out false. Where did you get this nonsense?
Susan: Now, as it is, we assume that she did consent – that is, we assume, as to this element of the crime, that the alleged rapist is innocent. A man and a woman have sex, and the law assumes that she consented to that, that is, the law assumes that it was not rape. The prosecutor has the burden of proving that she did not consent, that is, that it was rape.
Susan, I absolutely do not want you or any other woman to be raped. Or anyone to be raped, or to be in fear of rape.
But what you’re arguing for here is that we ought to assume – take as a default – that any man has the right to have sex with any woman, and no one can assume she didn’t consent to it – that unless she can absolutely prove she didn’t consent (and if she’s too drunk to resist, as in this case, she can’t) then by default, the man did have a right to have sex with her. Her state of mind is not relevant.
One question: Is this a situation you’re content to live with? Do you, personally, feel quite happy with the idea that any man can have sex with you against your will, and no court will take your word over his that you did not consent, because the court’s default assumption is that you did?
It is a fact that prior bad acts cannot be introduced against a defendant unless they serve to create or substantiate a pattern. And believe me judges rule on these motions with utmost care lest they be overturned in appeals court. The term “unduly predjucial” is used to keep information that would lead the jury to convict the guy because he is a creep and not because he is guilty of the crime he is charged with.
I do not mind if an accuser’s actions provide a legitimate alternate theory of the crime. As in those the mythago describes above, but defense attorney’s routinely introduce a victim’s clothing as if that in itself proves an alternate theory of the crime. It doesn’t it serves to shame the victim and influence the jury unduly.
“Relevant” and “probative value” would include allowing the defense to show that injuries or semen came from having sex with another man, or that the accuser was not a virgin if she is claiming the defendant was the first man she ever had sex with.
mythago, the article states:
your statement is the direct opposite of the ruling that was made. in cases where the man, or boy, is saying he did not commit the act, then the evidence might be brought in if it is deemed relevant by the judge. if the man, or boy, says the accuser consented, then in illinois the evidence will likely not be allowed in.
It is a fact that prior bad acts cannot be introduced against a defendant unless they serve to create or substantiate a pattern.
mendy, you are talking about the Admission of Propensity Evidence. however, that is not the same as a rape shield law. with rape shield laws, unless it has something to do directly with the defendant, it is not very likely it will be allowed into in. so similar past behavior or previous statements could easily be inadmissible. also, defendants, unless they are charged as juveniles, do not have their identities protected. so in the instances of mistrials, acquittals or exonerations, the defendant in the case has had his, or her, reputation potentially ruined. and no, i am not saying that men are falsely acused of rape. i am speaking strictly of what exactly occurs.
That’s not stated quite right. If it comes down to he said/she said, the court might very well take my word over his, depending on a lot of other circumstances.
Am I happy with this situation? I think it the lesser of evils. I believe that the State is more dangerous, potentially, to me and to everyone else, than any number of individual criminals. If an individual bad guy gets loose he can rape me, murder me, and so forth; if the State has no restraints, it can and probably will create a society which to me would be unlivable.
It is for this reason that we require that the State prove its case against an individual, not the other way around. I don’t want the presumption to go the other way: that every person the police are pleased to pick up, for whatever reason or for no reason, is presumed guilty, and has to come up with evidence to the contrary.
jake,
Yes a man who is aquitted of rape may have his reputation ruined, but the reputation of the accuser is also ruined.
The woman in the Bryant case recieved death threats for coming forward, etc.
Oh, and it is admissable if the man takes the stand in his defense. He can choose not to do that.
And that still didn’t answer the question of how a woman’s clothing has any bearing on consent?
Susan: If it comes down to he said/she said, the court might very well take my word over his, depending on a lot of other circumstances.
That’s not what you were arguing for, though, is it? Or do you feel that you are special, and deserve to be treated differently from other women for whom the default is “consent”?
Jesurgislac,
I don’t understand your comment.
The court will not automatically believe either party; however, the prosecution has the burden of proof. That means that the woman’s word along with whatever other evidence is available may well be believed, or not, but that evidence of guilt must be convincing. That is, if everyone comes into court and no one says anything, the guy goes free.
I wouldn’t be treated differently from any other woman, and I don’t think I should be.
This kind of discussion is from time immemorial. There are bad guys out there, not just rapists, but murderers, robbers, burglars, you name it. No matter how sure we are, deep in our bones, that Mr Ultimate Badguy is guilty of whatever crime or crimes, we still require the State to prove it. As a result, very many bad guys get off. Everyone who knows anything about the system knows that, so you’re not delivering a news flash here.
I’m not “arguing for” anything. I’m describing how the system does in fact work. Or should work; in practice, like all human institutions, it works very imperfectly. It is certainly a possible opinion that every person picked up by the police should be presumed guilty. You may hold that opinion. I don’t, for reasons I have already explained.
Unrestricted police power makes me very nervous.
As I said before, there are jurisdictions on this planet who do assume that everyone arrested is guilty. I wouldn’t care to live there, though.
Robert, you’re being deliberately obtuse again. If there were no rape, would the stereotype of women as liars be worth anything at all? Christ, I don’t know why in fuck I bother with you.
Women who like to believe women lie—who like to believe that other women are evil are doing so to pander to men. If men didn’t have allt he power, they wouldn’t do it. If women had the power we’re entitled to, we wouldn’t have to lie or to think evil of other women. If we were equal, we’d be able to speak the truth out in the open instead of just in safe spaces—and you notice how we have to deal with trolls here, too? Keeping us unsafe keeps us off balance.
Anybody ever heard of Ann Coulter? Phyllis Schlafly? Christina Hoff-Summers? Katie Roiphe? Camille Paglia? Beverly LaHaye? All those backlash babes who think they’ll get to be in the boys’ club if they trash other women enough? They’re telling sexist lies about women so they can get ahead in a man’s world.
It’s been an interesting few days following the conversations, discussions, or arguments. I’ve learned a few things about myself, and I’d like to think about those around me.
I’ll enjoy reading further, and ya’ll keep at it.
Women who like to believe women lie…who like to believe that other women are evil are doing so to pander to men. If men didn’t have allt he power, they wouldn’t do it. If women had the power we’re entitled to, we wouldn’t have to lie or to think evil of other women. If we were equal, we’d be able to speak the truth out in the open…
But Ginmar, the truth is that women are human beings. And human beings lie, cheat and steal. Not everybody, and not all the time – but most people lie at least once in a while, and some people lie all the time. Some of the people in all of these categories are women.
You seem to be playing into an anti-feminist stereotype here, of the “feminists are people who say that women are perfect” variety. Is that really your intention?
That aside, your construction is not consistent or coherent even within its own framework. If men have all the power, then why does it matter what women think? If women had the power you’re “entitled” to, then what is there about all these (apparently) dreadful women who currently suck up and lie for men, that would make them suddenly become good moral actors who don’t harm others?
your statement is the direct opposite of the ruling that was made
No, jake, my statement was directly in line with the ruling that was made. You’re just unwilling or unable to understand what ‘relevant’ means.
The exceptions to rape-shield laws, by the page you cited, have to meet two tests: Is the evidence relevant? and Would it be more probative than prejudicial? (In other words, would the evidence’s value outweigh any prejudice resulting from the evidence?)
If the defendant is not alleging that the semen or injury came from somebody else, then it isn’t relevant that the accuser had sex with another man. If the defendant is claiming that it wasn’t him, and the semen was from another man, then it is relevant that the accuser had sex with another man.
I notice you have stopped trying to argue that the defendant has no similar protection. You know against the prohibition on evidence of “prior bad acts”, right?
(As for protecting identity–adult defendants never have their identity protected in criminal cases.)
I have been reading up on the rape shield laws, especially here in Colorado because of the Kobe Bryant case. (Our laws are about the toughest in the country, too.)
It pains me greatly to state that Mythago’s interpretation is exactly correct. The rape shield laws that are in place do allow the defendant to introduce evidence about the victim’s behavior, history, &c when that information is material to the defense hypothesis. It’s usually the judge who decides, in a private session, whether the evidence is material or not. Which is what ought to happen, in my opinion.
Now if you’ll excuse me, I have to go wash the shame of Mythago-agreeing from my typing fingers. Get it off get it off GET IT OFF ME.
Oh, c’mon. A little lipstick and we do something with that hair, and you’d make a smashing Lady Macbeth.
Let’s try this out.
One of the big problems with rape is that the victim feels guilty. Even if it really was rape, there’s this big thing about not disclosing the name of the victim without her consent, etc. (The same is true in spades of male rape, which does happen, folks, yes it does.)
Now, what kind of sense is that supposed to make? Here’s where we see the uffed-up attitudes of the society as a whole. If my house is burglarized, do I feel shame? If I am mugged in a dark alley, do I want to conceal my identity? If someone knifes me, is that a reason that I should feel ashamed?
What’s going on here? Can anyone speculate? It’s not just women, either. Even the male children raped by priests were ashamed to come forward in most cases.
A rape victim is the victim of a crime. This is a bad experience, yes, but no reason to feel ashamed, one would think. I’d contend that if we by magic could get rid of the idea that the victim of this crime should feel guilty about it (??!?@) we’d get more and better convictions, and take more of these creeps off the streets.
Yes a man who is aquitted of rape may have his reputation ruined, but the reputation of the accuser is also ruined.
one’s reputation cannot be ruined if one’s identity is kept from the public. outisde of those involved in the case or who know the parties involved in the case, an accuser’s identity and reputation are more or less intact. and as it has been said, simply because someone is aquitted does not mean the rape did not happen.
The woman in the Bryant case recieved death threats for coming forward, etc.
as did Bryant. outside of Michael Jackson and R. Kelly, in most instances both parties are subject to that sort of behavior.
Oh, and it is admissable if the man takes the stand in his defense. He can choose not to do that.
what is admissible?
No, jake, my statement was directly in line with the ruling that was made. You’re just unwilling or unable to understand what ‘relevant’ means.
perhaps you are unwilling or unable to understand what “the judge’s discretion” means. the judge ultimately decides whether or not the evidence is admissible, whether it is considered relevant or not. the judge has the authority to allow it in, as in the Michael Jackson case (granted, that was a specific law, but the judge was still able to decide what came in, despite it’s relevance), or disallow, as in the illinois case.
are you really suggesting that relevant evidence is never disallowed in court cases?
I notice you have stopped trying to argue that the defendant has no similar protection. You know against the prohibition on evidence of “prior bad acts”, right?
the defendant does not have the same protection as rape shield laws. a defendant’s character, credibility, and behavior is still open game. rape shield laws prevent any such questioning of the accuser.
As for protecting identity”“adult defendants never have their identity protected in criminal cases.
and in virtually every other case, with the except of protected witnesses, adult accusers never have their identity protected either.
the judge ultimately decides whether or not the evidence is admissible, whether it is considered relevant or not.
Why, yes; that’s how pretty much all evidence works. What’s your point? Because all I’m seeing is that you don’t understand what “more probative than prejudicial” means.
a defendant’s character, credibility, and behavior is still open game. rape shield laws prevent any such questioning of the accuser.
Wrong on both counts: so you don’t know what the prohibition on ‘prior bad acts’ is, and obviously don’t remember the “Kennedy rape case”. For that matter, you seem to be unclear on the concept that the defendant doesn’t have to testify if he or she does not want to.
Because all I’m seeing is that you don’t understand what “more probative than prejudicial” means
yes, of course. pardon my male stupidity. it just seems that your whole notion of evidence being allowed in because of it’s relevance does not hold true if ultimately that decision lies in the hands of the judge.
Wrong on both counts: so you don’t know what the prohibition on ‘prior bad acts’ is, and obviously don’t remember the “Kennedy rape case”.
yes, of course. pardon me for having this moronic preoccupation with graduating college. all that concern about finishing school prevented me from concentrating on the more important media feeding frenzy.
but, surely you are not implying that most victims have their names splattered all over the place like that? surely you do not think that every defendant has the fame that results in such media circuses? and yes, obviously a defendant does not have to take the stand. that however, does not prevent the prosecution from placing witnesses on the stand to damage the defendant’s credibility. the defence cannot do such acts, even to establish a pattern, just from the outset. the accuser’s character typically is not allowed to be directly questioned. that is why the JC Penny evidence in the Michael Jackson case was so controversial.
but i understand your point: the law is on the side of the defendant, not the accuser.
pardon my male stupidity
Where did you get the silly idea that your ignorance is a result of your gender? Certainly Robert seems to get the concept, and he hasn’t had a sex change last I heard.
it just seems that your whole notion of evidence being allowed in because of it’s relevance does not hold true if ultimately that decision lies in the hands of the judge.
Why don’t you go back and read the web page you cited again?
Judges ultimately rule on evidence. That’s true in every case, criminal or civil. Rules of evidence set out what the judge is supposed to consider when making those rulings.
Now, if what you’re saying is that that judges can really do whatever they want and the rules of evidence are meaningless, then you have to admit that cuts both ways. In other words, a judge who ignores the rules about a defendant’s background can ignore the rules about an accuser’s background, too.
pardon me for having this moronic preoccupation with graduating college
Being a college student gives you a lifetime pass from having to back up your arguments? Who knew?
Since it also seems to have crippled your ability to use Google, I’ll give you a hand:
Exclusion of evidence in the William Kennedy Smith rape case
Admission of previous conduct in the Michael Jackson case
Prior bad acts in general
but i understand your point
Nope. My point is that your claims about what rape-shield laws do, and what evidence is or isn’t admissible, are flat-out wrong.
Jake,
the defendant’s “prior bad acts”, “character”, etc. are generally not allowed into evidence unless the defendant takes the stand and then and only then can the prosecution use his past to impeach him on the stand. If he gave testimony contrary to what is true.
For example if the defendant has a previous rape conviction and takes the stand and says under oath that he has never raped a woman, or he’s never been arrested… then those items can be used to impeach his credibility as a witness.
Here’s the thing. The defendant does not have to take the stand, and if he doesn’t then none of his prior history can be brought into evidence. However, until those rape shield laws were enacted a defense attorney could and routinely did drag up a woman’s entire sexual past as a mean to discredit her. And in almost all rape trials, the accuser has to take the stand.
And yes, the laws are written to protect the rights of the accused. And this is for the most part as it should be. I think certain things should be changed, but I’m not going into it at the moment.
Oh, and I’m trying to graduate college, too. I don’t pay anymore attention to the media circuses that surround sensationalized trials than you do apparently. However, I do on occasion go sit in the courtroom to witness those trials here that are open.
You seem to be playing into an anti-feminist stereotype here, of the “feminists are people who say that women are perfect” variety. Is that really your intention?
You’re displaying your bias here, Robert, because this is what you really really want to believe that feminists are like. You don’t go around countering the stereotypes that women are evil, yet when a feminist argues that women are regarded as natural liars, you claim that that’s not true—why? Because you’re unaware of it or unwilling to see it.
What part of th is is so hard to get? Society views women as liars, and has since Potiphar’s wife. We have the stereotype of the furious ‘woman scorned’ yet it’s scorned men that stalk, rape, beat, and kill women who reject them—and reject them because of their violence. Saying women are human beings lie is just being flat out ignorant. Let me make it simple for you, okay?The problem isn’t that women lie: the problem is that when women till the truth they get called liars, and oh by the way? When you tell feminists that what we’ve seen, experienced, read about, and endured didn’t happen, you’re calling us liars, too. Which is pretty much what you make a habit of doing. Then you turn around and say that we’re claiming women are perfect, when in fact we’re just reacting to your constant nitpicking and arguing for the sake of argument.
This is the last time I’m going to bother with you, Robert, as you’ve just proven to be a waste of my time. You don’t make any effort to listen and you’re just interested in winning an argument and not listening. You don’t want to listen. I’m done with you.
The problem isn’t that women lie: the problem is that when women till the truth they get called liars
When that happens, it’s a dreadful thing. It’s very difficult for people who aren’t intimately acquainted with the facts in particular cases to know who is telling the truth, however. The evidence appears to show that women generally tell the truth about sexual victimization, but not always. That makes things tricky.
When you tell feminists that what we’ve seen, experienced, read about, and endured didn’t happen, you’re calling us liars, too. Which is pretty much what you make a habit of doing.
That would be a genuinely wrong thing for me to do, and I apologize for having done so, although I cannot think of an example. Perhaps you could show me an example of me doing this, so that I have something concrete to look at as I attempt to not do this any more.
Then you turn around and say that we’re claiming women are perfect, when in fact we’re just reacting to your constant nitpicking and arguing for the sake of argument.
Whether you’re reacting to someone arguing with you or not, don’t you agree that we’re all responsible for our own statements? If you say things that lead a reasonable observer to think that you’re claiming women are perfect, then that’s what a reasonable observer is going to think. In fact, I didn’t go to that conclusion – I just pointed out that you were making statements that could easily be interpreted that way, and asked you if that was really your intention.
This is the last time I’m going to bother with you, Robert, as you’ve just proven to be a waste of my time. You don’t make any effort to listen and you’re just interested in winning an argument and not listening. You don’t want to listen. I’m done with you.
I think the trouble isn’t that I don’t listen to you; the trouble is that I do listen to you, and in doing so I hear the contradictions and inconsistencies in what you say. When asked for clarification or explanation, you seem to prefer changing the subject, launching personal attacks, or making statements that you’re done and aren’t going to engage anymore.
This is, of course, your prerogative. It was your prerogative the last half-dozen times you’ve said this, or something similar to this.
Susan said “But if we start out with the assumption that she in all cases did not consent, we’re assuming that every sexual act is rape unless proven otherwise – that is, we’re assuming that every man accused of rape is guilty, and it’s up to him to prove that she consented.”
When someone goes to court because they’ve been mugged and their wallet stolen, what is in question is whether or not the defendant is the person who committed the crime, not whether or not a crime actually took place. That’s a given…the identity of the criminal is under prosecution, not the existence of a crime. Why is it different with rape? Why do we *assume* that the rape may not have happened, when we do not ask the same question of a robbery or a mugging or other assault?
Broce:
1. The existence of a crime is very much an issue in most cases.
The issue of whether a crime has in fact been committed is indeed an issue in a mugging. It’s just that it’s usually easier to tell, because the victim usually alerts the police while his head is still bleeding and all that.
But in murder, say, it is very much an issue (a) whether the person is dead (if we don’t have a body), (b) whether the person died of natural causes, or (c) is a suicide. This is very much an element of proof in a murder case. Arson, another example. Yes, there was a fire, we ordinarily know that (just as we ordinarily know whether sexual intercourse happened in a rape case), but… was it an accidental fire? Did the owner start the fire himself, in which case it’s not arson, but insurance fraud? And so forth.
Also, did the “mugging victim” really lose his wallet, or is there something else going on? The police ask, believe it.
2. Assuming that in all cases sexual intercourse happens against the will of the woman involved flies in the face of what most people, including me, believe to be the real situation. I fully realize that there is a party (I think they’d call themselves extreme feminists) who think that all heterosexual sexual intercourse is in reality, or is at least de facto, rape. I believe that this is a minority opinion, however, and I don’t know of anyone who seriously proposes prosecuting every male who ever has intercourse with a woman.
Charles Darwin, where are you when we need you?
My experience was almost identical with yours, HC. I have stopped blaming myself long ago (having had counselling and therapy – that started 10 years after the rape), but I do know other people think I’m to blame. And that hurts.
Susan: Assuming that in all cases sexual intercourse happens against the will of the woman involved flies in the face of what most people, including me, believe to be the real situation.
Assuming that in all cases sexual intercourse happens with the woman’s full consent also flies in the face of what most reasonable people believe to be the real situation. Yet, that’s the argument behind acquitting Ruairi Dougal – because he admitted sexual intercourse but claimed it had been consensual, and she said she couldn’t remember enough about it to swear to whether or not she had consented, she was by default assumed to have consented, and the prosecutor and the judge between them simply ended the case.
Who’s Ruairi Dougal? Do I take it that this is another alleged miscarriage of justice?
And if it is, your point would be what? That there are miscarriages of justice?
In spite of your efforts, you have yet to convince me that the accused in a rape case (or, any other case) should be assumed to be guilty until proven innocent.
We who defend the current rule fully understand that its application will result in the release of numerous guilty persons for lack of proof. This is true not only in the case of rape, but in the case of every other crime. A long long time ago we in this culture decided that this is preferable to convicting numerous innocent persons for lack of proof of innocence.
As I have said repeatedly, there are jurisdictions where every person picked up by the police for any reason or for no reason is assumed to be guilty as charged unless and until that person can prove innocence. You are welcome to move to one of these places if you think that a superior rule. I for one am staying put.
Call me heterosexual or something, but I believe that in the majority of cases of heterosexual intercourse, both parties consent.
Susan said “Assuming that in all cases sexual intercourse happens against the will of the woman involved”
Who assumed that, Susan? Certainly, I did not, and I believe that’s a bit of a strawman.
Susan, you are heterosexual, or something. ;)
The point isn’t that every accused rapist should be considered guilty, that’s just silly. The point is that every rape victim shouldn’t have to prove they are innocent and blameless. That is what the survey was saying, that people blame the victim for simply being a victim. Rape is the only crime where the victim has to prove they didn’t deserve to be a victim.
I believe that Jesurgislac is arguing for that proposition, or rather arguing that the law should make that assumption, unless I grossly misunderstand her (?) posts.
I couldn’t agree more. Rape shield laws as well as other devices are being introduced to change this, but we have a VERY long way to go. Simply assuming the guilt of the accused, however, and forcing him to prove consent is going too far, however. In my opinion.
Susan: I believe that Jesurgislac is arguing for that proposition, or rather arguing that the law should make that assumption, unless I grossly misunderstand her (?) posts.
You do indeed grossly misunderstand my posts (which you may feel is poetic justice, given your persistent complaints that I grossly misunderstand you!).
I do not believe that the law should assume a woman consents. Neither do I believe the law should assume a woman does not consent. I believe the law should deal with the facts as they stand: if it can’t be established to legal standards of evidence whether or not a woman consented, then prove it was rape by the usual means of presenting evidence and asking the jury to determine on “reasonable doubt”.
We don’t instantly dismiss murder cases if the accused claims the dead person asked to be killed: we determine if it was likely that the dead person would have asked to be killed.
Simply assuming the guilt of the accused, however, and forcing him to prove consent is going too far, however. In my opinion.
Arguing that where we don’t know whether or not the victim consented, it should be left as a “don’t know” and the trial proceeds, is not the same as forcing the accused to “prove consent”.
About Ruairi Dougal.
Jesurgislac:
I am utterly confused. How can the trial proceed? What is there to proceed with? Consent is the heart of the issue, the whole issue: If there was consent, it was sex, not rape, if there wasn’t, it was rape. All the other stuff is completely irrelevant.
And the murder comparison is odd, people don’t consensually kill each other on a regular basis, while people (and in all sex combinations not just man/woman, I might add) have sex with each other consensually more or less on a regular basis (preferences and opportunities vary). In fact, “consensual killing” (eauthanasia) is legal in very few places, and heavily regulated where it is legal, IIRC. We assume that if a killing has occured that it was a murder.
Tuomas: I am utterly confused. How can the trial proceed? What is there to proceed with? Consent is the heart of the issue, the whole issue: If there was consent, it was sex, not rape, if there wasn’t, it was rape.
Okay, let me explain.
Whether or not it was rape is completely dependent on how the victim perceived it. But we are not completely dependent on “how the victim perceived it” to determine whether or not it was rape.
If the accused rapist says the alleged victim consented, and the alleged victim says she did not consent, then the jury determines, on the evidence available, whether a reasonable person would believe that the alleged victim consented. Right?
If the accused rapist says the alleged victim consented, and the alleged victim says she doesn’t remember – and has good reason not to remember, such as, in the case linked to, she was drunk enough to need help getting home (the security guard asked to help her get home is the accused) – then again, it should be up to the jury to determine, on the evidence available, whether a reasonable person would believe that the alleged victim consented.
Deciding that since the victim doesn’t remember it can be assumed she consented, is effectively deciding that a woman’s default state is consent – that women have to prove they didn’t consent before any case of rape can even be tried.
And the murder comparison is odd
I brought it up as an example where we have no testimony from the victim, but we don’t just thereby assume that the accused is innocent because he says so himself.
1:
2:
There is a leap in logic there! 2 does not (in this case) follow 1. “A woman doesn’t remember” is very different from “a woman has to prove they didn’t consent”. I wonder why the case even was in the court if the woman wasn’t sure whether she consented or not.
On the other hand, I do think that very drunk, or very drugged consent should not be considered consent, and the man was at least an asshole (if she had said yes in her current state) or a rapist (if she didn’t say yes). But again, it boils down to consent.
And in the murder again: My point was that people don’t usually consent to be murdered, and in most places even can not consent.
I meant in the drunk/drugged case: But it is very hard to draw a precise line in there. (How drunk? Which drugs?)
Third post in a row, sorry Amp, I’ll try to be more careful and not click the “post” -button too early from now on:
Jesurgislac:
What I’m trying to say is that rape trial is usually he said/she said, and the jury has to weigh in all testimonies, evidence etc. That case is he said/nothing much, since the woman isn’t saying she didn’t consent.
This is an interesting idea, but I’m not sure it would work.
We run our court system on the idea that one party or other has, as to every fact, the “burden of proof.” That is, for example, if I slip and fall in your front yard, it is up to me (not you) to prove that I fell (you don’t have to prove that I didn’t), that I was injured, that it was your fault, and that it cost me money. If I can’t prove any one of those, my case gets thrown out.
We don’t just throw facts at the jury and say, “Well, no one knows what happened so you figure it out.” Because in a lot of cases proof is hard to come by, so we load the dice one way or another, assuming that all accused are innocent until proven guilty, that you aren’t to blame for me stumbling, that I wasn’t negligent in that car accident, and so forth. Without these assumptions the system would be even more clogged than it is already.
We’re not trying to construct Intellectual Perfection down here in the trenches. We’re trying to make this society work, more or less, under difficult circumstances, at a reasonable price. (Courts cost money. Your money.)
The way we run our system, if someone is charged with a crime, the State has the burden of proving every element of the crime. (Rather than, say, requiring the accused to prove innocence.) Thus, if burglary is charged, the State must prove (beyond a reasonable doubt) that someone or other did break into the victim’s house under the requisite circumstances, that something was stolen, and that the accused is the one who did it. (As opposed to, for example, the homeowner breaking his own window and hiding some of his stuff so he can make an insurance claim.)
Your idea – I think – is that if the State cannot prove that the woman did not consent (like, she just doesn’t know one way or the other), then it might still be possible for the acccused to be convicted of rape if the jury thinks that she shouldn’t have or probably didn’t or something. (Did I get this right?)
This would significantly erode the protections we erect around individuals to protect them from the State. Thus, if your roommate (if you have one) is found dead in the room, and you are charged with murdering him/her, and the State cannot establish beyond a reasonable doubt that you were available to have done the crime (say, you were drunk and don’t remember where you were, and they don’t have any information on that either), the jury would still be given license to convict you if they think you might of done it or if they don’t like your color or gender or ethnicity or sexual orientation or the way you dress or something.
Needless to say, we don’t do things that way here, and as I have said, I don’t think we should. For reasons which are obvious to me anyhow.
Or do you think rape alone should be an exception to how we handle crime? I’d make the same arguments. A black man in Mississippi is accused of raping a white woman. She sort of can’t figure out whether she consented or not. Do you think the jury should be allowed to find him guilty (on God alone knows what basis)?
Tuomas: I wonder why the case even was in the court if the woman wasn’t sure whether she consented or not.
The woman was sure she wouldn’t have consented, but was so drunk she remembered nothing about the evening: the security guard admitted he’d had sex with her in the corridor outside her home, but claimed she’d consented and was conscious.
Effectively, by deciding that “doesn’t remember” amounted to “she must have consented”, the court decided that the default state of all women is consent to sex with any man. No man can even be put on trial for raping a woman – no matter how much evidence there is that he raped her, including his own testimony – unless the woman can prove she didn’t consent.
Susan: Or do you think rape alone should be an exception to how we handle crime?
No, I think rape should not be an exception to how we handle crime, which it certainly is at present. We don’t insist that people prove they didn’t want to give a total stranger their wallet and cellphone; we don’t demand proof that someone didn’t want to die before we put a total stranger on trial for killing them; we don’t insist that someone demonstrate they didn’t want to be burgled before we try the thief. We allow the accused to be deemed innocent till proven guilty, but except with regard to rape, that doesn’t mean that their own assertion of innocence means that they can be acquitted without trial.
. A black man in Mississippi is accused of raping a white woman. She sort of can’t figure out whether she consented or not.
A woman is drunk enough that it seems to her friends she shouldn’t be allowed to go home alone. (This happens on a university campus.) They ask a campus security guard to walk her home because she’s drunk. The woman wakes up the next day with a mostly-blank memory of the previous evening, and a vague thought that something happened. She talks to one of the university counsellors, and two days later, the security guard admits he had sex with her in the corridor outside her room. He claims she was conscious and it was consensual. She says she would never have consented to sex in the corridor when her bed was a few feet away, but doesn’t remember enough about the evening to know if she consented or not. The security guard was a stranger to the woman.
Now, obviously the security guard is going to claim she consented. There is good reason not to doubt the woman’s testimony that she doesn’t remember – her friends can confirm that she was very drunk.
Assume that all women by default consent? That’s what the court did in that case.
Or try the case on the evidence available – would a reasonable person believe the security guard’s story, or the woman’s story? Does it seem reasonable that a woman would want sex with a total stranger? Does it seem reasonable that the security guard, asked to see her safely home because she was drunk, should have assumed she was in a fit state to give consent?
Maybe the jury would have believed the security guard. Maybe not. He had a right to a fair trial, but I can’t see why “innocent till proved guilty” means he had a right to be acquitted without any trial at all. Unless you believe that all women can be assumed to have consented to sex with any man, or unless you assume that any man accused of rape is entitled to be acquitted just because he claims she consented.
J, in your hypothetical (I guess it’s not so hypothetical), on the facts you give (which may not be all the facts, remember) I’d say the case should have gone to trial under the rules we use.
If you’re surprised that our legal system doesn’t always work as it ought to, you need to get out more.
As to your distinction between murder and rape, say, the difference is that hardly anyone wants to be killed (and legally we don’t recognize that desire as legitimate anyhow) whereas usually when there is sex the woman want it. So killing someone is sort of right off the top questionable, whereas sex is only questionable if someone didn’t consent. (Or, in the case of a minor, couldn’t consent.)
A blanket legal assumption that women don’t consent to sexual intercourse, besides running contrary to observed fact, compromises the rights of the accused to a degree unacceptable to our legal system (and, unacceptable to me).
This means a lot of rapists will get off scott free. As do many murderers, burglars, robbers, you name it.
Two quick points.
1) I believe that the case in question took place in the UK, where the rules of evidence, I suspect, are somewhat different than they are here. I am utterly and completely ignorant of how they differ, but I suspect that in the US, this case would have gone to trial and the accused would have been found not guilty.
2) And, as much as it bugs me, I think that’s the right decision. When we don’t know, we acquit. That’s because, when we don’t know, there’s almost always a reasonable doubt. Think of the mugging example. You go out drunk one night, and when you wake up the next morning, your wallet is empty of the $500 you had with you. Somehow you discover that the homeless guy who lives near your apartment has your cash (Well, had. It’s been spent.). He says that when he panhandled you last night, you tossed a wad of 20s at him and walked on. You suspect he rolled you while you were drunk, andit’s likely that you’re right. In posession of your full mental capacities, you never would have given $500 to some random stranger. The only lucid witness (the panhandler), however, says that you did, and I tend to think he’d be aquitted of mugging you, as although it’s unlikely, there is a reasonable doubt. I’m uncomfortable with the idea of convicting anyone of anything based on what ‘probably’ happened.
A blanket legal assumption that women don’t consent to sexual intercourse
…works just as badly as a blanket legal assumption that women always consent to sexual intercourse, which is the argument you’re making.
Susan: If you’re surprised that our legal system doesn’t always work as it ought to, you need to get out more.
If you think that any man, anywhere, has a right to assume you’ve consented to sexual intercourse with him – which is your argument – then you need to get out less.
well reasoned, anonymous.
Jesurgislac, we’re talking about two different things.
You’re discussing what some random man has the right to assume when he runs into me. I’m talking about who has the burden of proof in a criminal trial.
I do not think that any man has the right to assume that I’m consenting to sex with him. A prosecutor in a rape case is required to prove, beyond a reasonable doubt, that the woman did not consent to intercourse during the incident in question.
These two statements do not contradict each other.
Susan: I do not think that any man has the right to assume that I’m consenting to sex with him.
Then why argue that he does have that right?
A prosecutor in a rape case is required to prove, beyond a reasonable doubt, that the woman did not consent to intercourse during the incident in question.
Precisely. Because (if you were that woman) it is assumed that you do consent to sex with any random man who wants to have sex with you.
I don’t think it ought to be that way. I don’t think the defendent in a rape case ought to be able to claim as a fallback position that the default for all women at any time is always consent.
But so long as you’re arguing that as a standard, you are arguing that any man, any time, any where, has a legal right to assume you consent – and if it comes to court, you’ll have to try to prove a negative. He won’t.
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Jesurgislac, prosecutors do not have to prove a lack of consent “because it is assumed that [women] do consent to sex with any random man”. Prosecutors have to prove a lack of consent because our legal system presumes innocence. Once innocence is presumed, then guilt must be proved. In the case of man-on-woman vaginal rape, what determines guilt? The question of whether or not the woman consented to the sexual act. So that’s what (de minimis) a prosecutor has to demonstrate in order to prove rape – lack of consent.
This isn’t complicated.
Robert: Jesurgislac, prosecutors do not have to prove a lack of consent “because it is assumed that [women] do consent to sex with any random man”.
Actually, they do, because the system does assume that. As you then pointed out, beautifully contradicting yourself. Women are assumed to consent, at any time, to any man who wants them. In order to bring a charge of rape, a woman has to prove a negative – because if she can’t prove she didn’t consent, that means the man had the right to assume she did.
That you interpret this as “innocent till proved guilty” is because you too have swallowed the cultural idea that women have two default states: either assumed to consent, or (in rare cases: nuns, very pregnant or very elderly women) assumed not to consent. The idea that women don’t have a default state is clearly somewhat foreign to you.
This argument in fact gives men accused of rape a special protection. They’re not “innocent till proved guilty”: they can’t even be charged with rape – no matter what evidence suggests they committed rape – until, first of all, the woman can prove a negative. If she can’t prove a negative, no matter what the other evidence, her default state is assumed, and since that is consent, the man obviously didn’t rape her. No case can be brought to court.
(Susan, I logged back on to apologize: it wasn’t my intention, but I feel that my last couple of comments have come closer to personal attack that I feel comfortable with.)
You are drawing cultural and individual conclusions from legal premises. It doesn’t work that way, and I don’t have the time or energy to argue with your idee fixe.
Well, I’ll try.
Jesurgislac, how would this “no assumptions” policy work in practice?
Suppose you are accused of rape, but at trial the prosecution brings no evidence against you. In the absence of information supporting the charge, should the jury just flip a coin? Or should the prosecutor actually have the burden to prove its charge? And if the prosecutor fails to prove the elements of its case, what inference should the jury draw from that fact? If you agree that the jurors should refrain from convicting unless the prosecutor convinces them otherwise, then I suspect this dispute is merely semantic.
Note that I am speaking about the presumptions of jurors. You and I as private citizens are free to presume anything we like without any evidence whatsoever, and free to object to any presumption as well. But if we were called to a jury pool, we’d take an oath to presume the defendant is innocent of all elements of the crime until evidence proved otherwise.
The need to prove a negative doesn’t seem that hard in most cases. (Q: “Ms. Jones, on the night in question, did you consent to have sex with the accused?” A: “No.”) If a prosecutor can’t present evidence to support the idea that a woman did not consent to sex with the accused, then the prosecutor SHOULD refrain from bringing a rape charge, right?
There is a lot of misunderstanding of the burden of proof here. The prosecution is accusing somebody of a crime; they have to prove, beyond a reasonable doubt, all the elements of that crime. That is the way prosecution of all crimes works. “Without consent” is an element of the crime of rape (generally speaking).
If we required the defendant to prove lack of consent, what you’d be doing is making all sexual intercourse prosecutable as rape, but allowing an accused to raise “consent” as an affirmative defense to the crime of rape.
duh, should be “defendant to prove consent” in the above.
Precisely, mythago. Thank you.
Jesurgislac,
No apologies necessary. You have been generous and well-mannered throughout, so far as I can tell.
RE The comment that Barbados Butterfly’s experience was atypical – in reality, it’s about as typical as you could get. It’s much closer to the norm than the “bad man in a dark alleyway” idea that people are so fixated on.
Also, in reference to Kristjan Wager’s thesis about male victims not being blamed – that has not been my experience at all. I had an ex-boyfriend who was gang-raped, and EVERYONE blamed him. After all, the reasoning went, he’s 6ft 3, so surely he should have been able to beat off 5 or 6 drunk assholes. What seems to happen in the case of male victims is that people apply to them all the same crap that usually only gets applied to women. My ex was criticised for what he was wearing, for being in a bad neighborhood, for being too friendly to strangers…all the usual crap.
I’m not sure that that says about the whole phenomenon of rape culture. Maybe that it’s really not about women at all (big surprise there, huh?), it’s about the idea that men should never be expected to alter their behaviour out of consideration to others. To me it says that the core idea is really that, that our society thinks that male sexual behavior is uncontrollable and that no-one should ever expect it to be otherwise. I find it odd that more men don’t get offended by that idea. If I was a man I would find that implication that I was incapable of self-control downright insultuing.
Barbados Butterfly – horrible story, and sadly all too common. I hope that you’re getting counselling. If you’re not and you want to and are ready to, I’m sure that between us the people on this board could find a service that offers counselling in your area. We’re a pretty resourceful lot, and many of us understand what you’re going through all too well.
About this “it is unfair to real victims to equate unagreeable male sex with real rape. ”
I’m confused about what you mean. What is the line between “unagreeable” sex and rape, in your mind? By definition, rape is sex that was not agreed to. I think a huge part of the problem is the idea that there is a category of sex that was unpleasant, and that one person clearly didn’t want, and that somehow this isn’t “really rape”. Which is bullshit, IMO. If you’re with a partner and they appear not to be into the sex you’re having you need to stop, right away, and find out what’s going on. Anyone seeing a reluctant partner, who seems to find the sex they’re having “unagreeable”, who doesn’t stop to check in and find out what’s going on and make sure their partner is OK with what’s happening is a rapist, as far as I’m concerned. It’s probably not possible to convict them as such in a court, but in a moral/ethical sense they’re a rapist. I’m not sure where the idea that this falls into the “shit happens” category comes from, but that idea is one of the basic planks that keeps the whole rape culture ship afloat, and we all need to challenge it whenever we see it.
I hope that makes sense, I’m starting to get sleepy and kind of feel like I’m babbling here.
Robert said “People do not behave like automatons from textbooks. Training boys and men to elicit/expect enthusiastic assent from their partners, rather than tacit assumptions of consent, is undoubtedly productive and leads to healthier sexual outcomes; it’s how I raise my kids (or will when they hit the appropriate age). But that isn’t the reality for 99% of sexually active people, and the legal system has to deal with people who behave how they behave, not how we might wish they would behave.”
Clearly you and I do not live in the same universe. Do you really believe that only 1% of people are capable of communicating clearly in a sexual context, or that only 1% of men expect/elicit enthusiastic participation from their partners? I have, quite literally, never had a sexual partner who falls into your 99% category. Hell, I’ve had a sexual partner where we barely even spoke each other’s languages and yet we still managed to fall into your elusive 1% category, and even with the language barrier he still managed to make sure that I was an enthusiastic participant (and stopped to check in and resolve the situation when I got into an awkward position for a moment and said “ouch”). Either I’m the luckiest woman on the face of the earth, or your conception of how most people interact sexually is way off target.
This attitude is one of the reasons that rape culture persists. Most men are perfectly capable of good sexual communication. It’s not rocket science. It doesn’t require specialised training, just basic empathy. The idea that proper sexual communication is just too hard for most men to master is bullshit, and that it’s unrealistic to expect it is bullshit. It’s an excuse, and not a very convincing one.
Robert Writes: You are drawing cultural and individual conclusions from legal premises. It doesn’t work that way
Tell that to every woman who was raped and then told that it had to be assumed that she consented, because she couldn’t prove she didn’t. It does work that way.
mythago Writes: If we required the defendant to prove lack of consent, what you’d be doing is making all sexual intercourse prosecutable as rape, but allowing an accused to raise “consent” as an affirmative defense to the crime of rape.
Again, you really don’t seem to have a concept of women not having a default state.
The idea that all women must be presumed either to be not consenting to sex with any random man (which is, actually, much more realistic as a concept: answered honestly, given 24/7/365, how much of that time does any woman spend feeling like that she wants sex with any random man she meets? Or even with her boyfriend/husband?) or else must be presumed to be in a state of consent, is just — well, dehumanizing.
All other criminal offenses require only proof beyond reasonable doubt: if a juror considers it reasonably unlikely that the person accused committed the crime, they should acquit. When a man is accused of rape, he has the extra-special double-line of defense: even before he can be tried, the victim has to prove, absolutely, that she didn’t consent. Her word is not enough: nor is the court allowed to decide whether a reasonable person would want to have sex under the circumstances described, because all women are assumed to consent at any time to any sex with any man. Therefore no man can be accused of rape unless a woman can manage to provide negative evidence against that assumption: otherwise, any man who had sex with any woman was just acting out his legal right to assume consent.
And only then does the case move forward into “innocent till proved guilty beyond reasonable doubt” territory.
BritGirlSF: To me it says that the core idea is really that, that our society thinks that male sexual behavior is uncontrollable and that no-one should ever expect it to be otherwise.
I think it’s a twin assumption – although it’s a horrible story about your friend, I think the two assumptions run side by side: women are assumed to be in a state of consent, and men are assumed to be sexually uncontrollable.
Jesurgislac, you may be right. It’s a whole set of interacting assumptions, to be sure.
I’m still mulling over your idea about people assuming consent as a default state. I think that most people, ie the average person in the street, actually assume non-consent – as you said, how many men whom she runs into on any given day do we really assume that the average women wants to have sex with? Not many. However, this does not mean that the courts are using the same standard. In practise, they still seem to typically assume that whether or not a woman consented can be assumed based on past sexual behavior (is she either a virgin or a nun?) or percieved sluttiness, which is nonsense. Even if a woman is a prostitute, she can be raped.
On an emotional level I’m in agreement with you that assumed non-c0nsent seems like a reasonable standard to use but I’m not sure that it works in a legal sense any better than assumed consent does.
BritGirlSF: On an emotional level I’m in agreement with you that assumed non-c0nsent seems like a reasonable standard to use but I’m not sure that it works in a legal sense any better than assumed consent does.
I don’t see why the woman’s consent or non-consent should be assumed before the trial begins, though. Whether it is likely she would have consented to that particular man in that particular situation at that particular time – that’s what the trial is supposed to determine, once a charge of rape is brought.
BritGirlSF: On an emotional level I’m in agreement with you that assumed non-c0nsent seems like a reasonable standard to use but I’m not sure that it works in a legal sense any better than assumed consent does.
I don’t see why the woman’s consent or non-consent should be assumed before the trial begins, though. Whether it is likely she would have consented to that particular man in that particular situation at that particular time – that’s what the trial is supposed to determine, once a charge of rape is brought.
The trial can only begin with her admission that she did not consent (except in cases that no legal consent is possible). No jury can decide whether she consented or not if she does not remember that herself. They can not presume to know that a rape happened, if there is only one story, that it was consensual. That’s what the charge of rape is all about – the woman says she did not consent, and probably he claims she did, and the trial is for finding out the truth (without reasonable doubt). There are no “default states” involved in a legal sense, and I don’t believe many people, in a social sense, assume that women are by default in a consenting state. In short, there can be no charge of rape without lack of legal consent. We can not proceed with the trial. (This is different from the double-protection you spoke of).
I hope I don’t sound too harsh, but I feel like I’m repeating myself and repeating other people with more knoledge of the law, and it is frustrating that we talk past each other. I suppose I’ll bow out too.
Tuomas: There are no “default states” involved in a legal sense
That women’s default state is consent is precisely what you are arguing for, Tuomas. At least acknowledge it.
and I don’t believe many people, in a social sense, assume that women are by default in a consenting state
1 in 20 men commit rape: 94% of rapes never result in conviction.
Clearly enough people believe that women are assumed to consent to sex, however “many” that means.
Come on, show me how I did that, or drop it.
Or they don’t care, yet they don’t want to look in the mirror and see a rapist, so they made stories to cover that up for themselves too. (“of course she wanted it!”, in other words: denial). Few people, no matter how evil, think of themselves as evil. It is disgusting that there are people in this world who are making excuses for those men (mostly absent from this thread, but one needs not to search for long in the internet to find those people).
I agree that the conviction rate is horribly low, but I really think the problem here are the people who, when faced with a clear rape case, know that there was a rape, but think “she deserved it” (as in the study this thread is about, and all those “miniskirt” or “slut” defences). And the rapists. Not the heavy burden of proof, that exists for all crimes.
Come on, show me how I did that, or drop it.
You argued: No jury can decide whether she consented or not if she does not remember that herself. They can not presume to know that a rape happened, if there is only one story, that it was consensual.
So you argue that a jury CAN decide she consented, but can’t decide she DIDN’T consent.
You argued: I wonder why the case even was in the court if the woman wasn’t sure whether she consented or not.
So you argue that if a woman is too drunk to remember, she should be assumed to have consented.
At least own your assumption, Tuomas.
The problem with the University case was they had to prove sex took place and it was not consensual. There were two eyewitnesses: the woman and the guard. The guard said consensual sex took place. The woman could not remember not happened, but it was her opinion after the fact that she would not have consented. This obvious leads to a huge evidential problem for the prosecution – there’s no evidence the sex wasn’t consensual, so the couldn’t prove rape. So the case was abandoned.
I’m not sure a “default state” comes into it.
Ethics clash with the burden of proof here. I already wrote about this on #237.
I repeat: If she cannot remember whether she consented or not, she cannot know whether she was raped or not. And you wrote:
See? How can the trial proceed?
I think the suggestion was that if a woman is too drunk to remember she has no value as a witness as to whether consent was given or not. If she’s the only prosecution witness you have then you can’t prove beyond reasonable doubt that a crime took place. There’s nothing to say she may have not consented, but you just can’t demonstrate that. I think the question is about evidence, not assumptions about default states of consent.
I just want to say I don’t think Jes is totally out of line.
If you wound someone that’s prima facia illegal, once this is demonstrated the defendent then has to prove the act was legal. If you have sex with someone, for it to be rape, the prosecution has to prove it was nonconsensual.
If you knock down a listed building it is no defence to say you were mistakenly under the impression it wasn’t listed. If you are accused of rape it is a defence to say you were mistakenly under the impression consent was given. I find this particularly disturbing as it implies we are willing to expect people to live up to a certain standard in order to prevent historic buildings from being knocked down, but not in order to prevent people from being subject to nonconsensual sex.
I would be entirely possible to change rape law to make it stricter, the changes wouldn’t be incompatable with what we call “justice” in other instances.
If there’s a reasonable doubt either way, then yes, that’s almost true. Very nearly true.
If there’s a reasonable doubt, the jury must acquit.
If there’s a reasonable doubt, the jury cannot convict.
The problem is that what you’re saying isn’t actually true in essence. That is, the Jury doesn’t have to make any decisions as to whether the accuser consented or not. All they have to do is determine whether there’s a reasonable doubt. Judging a defendant not guilty is NOT the same as deciding that the accuser is lying and really, secretly, consented to sex.
The default assumption is the innocence of the defendant, not the guilt of the accuser.
The reason issues of consent come up so often in these cases is that consent is so often used as a defense by the defendant. If there’s a case of rape where the defendant claims that yes, it was rape, but no, he wasn’t the guy who did it, then consent doesn’t come up at all. There’s no debate. There’s no “assumption of consent.” Instead, there’s an assumption that the defendant wasn’t the guy, and the prosecution needs to present evidence that he actually was the guy. If they don’t have any convincing evidence, he’ll probably go free.
If there’s an armed robbery case where the prosecution claims that the defendant menaced the accuser with a bloody machete, and the defendant claims that he’s never held a bloody machete in his life, the prosecution needs to show some evidence of a bloody machete.
If there’s an embezzlement case where the prosecution claims that the defendant embezzled 5.7 Million dollars from the company he worked for, and the defendant claims that he’s never worked for that company, the prosecution needs to show some evidence that he was employed there.
This is PRECISELY the same level of evidence required in rape cases that’s required in each and every single other criminal case in the USA. It makes just as little sense to extrapolate from the rape case you reference to a generalized assumption that women consent as it would to extrapolate from the assault case to a generalized assumption that assault victims lie.
There is no generalized assumption. The prosecution must answer the defense and make their case solidly. If they cannot, then there is a reasonable doubt.
Right! Right right right right right.
I would like to ask Jesurgislac how she would have preferred the trial to go, or how she thinks it ought to have gone. If there’s a proposed change to our system that she believes would both remove the “assumption of consent” and preserve the presumption of innocence and ‘reasonable doubt’ standard of conviction, I would be very open to hearing it. I don’t see one, but that’s just me.
I practice law (although not criminal law), and all of this is news to me.
Please walk us through the procedure: A prosecutor files a rape charge based solely on a victim’s testimony. What happens next to keep the case from going to trial? What motion would the defense file to dismiss the charges?
To be sure, prosecutors have a lot of discretion regarding the charges they choose to prosecute. So prosecutors may choose not to bring charges if the trial will simply boil down to “he said/she said”; after all, prosecutors bear the burden of proof. But I am not aware of any legal prohibition on going to trial simply on the basis of the victim’s testimony. The jury will have the opportunity to observe the demeanor of the witnesses (including the defendant, if he chooses to testify), and to render judgment on that basis. I am not aware of any legal doctrine that says that the jury cannot base its decision solely on the demeanor of the witnesses.
The prosecutor says, “Ladies and gentlemen of the jury, the defendant says that she consented to having sex with him in the alleyway as the broken glass was cutting into her back. This is just not credible….” The defense lawyer will jump up and say, “Objection, your Honor, that line of argument is impermissible because…” What’s the grounds for excluding the argument?
So no one has ever been convicted of raping and murdering his victim? (After all, a murder victim would not be alive to deny consent; if I understand your argument, the court would therefore have to assume the victim consented.) I have not researched this question, but it sure seems counter-intuitive.
Well, it kinda is, though, isn’t it? I mean, if you say that you’re under that impression because Karl back at the main office gave you a work order saying that this was the one to demolish. . . and the prosecution is unable to produce a work order showing a different address . . . I think most juries would find that that’s a reasonable doubt.
While we’re discussing legal procedure, here’s the classic excerpt from the drama “A Man for All Seasons” by Robert Bolt, about the life of Sir Thomas More:
DAUGHTER: Father, that man’s bad.
MORE: There’s no law against that.
ROBERT: There is. God’s law.
MORE: Then God can arrest him.
WIFE: While you talk he’s gone.
MORE: And go he should, if he were the Devil himself, until he broke the law.
ROBERT: So, now you would give the Devil benefit of law?
MORE: Yes. What would you do, cut a great road through the law to get after the Devil?
ROBERT: Yes, I’d cut down every law in England to do that.
MORE: Oh? And when the last law was down and the Devil turned round on you, where would you hide, Robert, the laws all being flat? This country is planted thick with laws from coast to coast. MAN’S LAWS, not God’s. And if you cut them down – and you’re just the man to do it – do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law – for my own safety’s sake.
Minor quibble: Bad example. In the USA, consent is not a defense for murder.
Sorry for the confusion. To convict a defendant for murder AND rape, you’d need to convict for rape, so consent would still be a defense to that charge. Even in the US. :-)
Ah yes. Right you are. Carry on.
anonymous: The problem is that what you’re saying isn’t actually true in essence. That is, the Jury doesn’t have to make any decisions as to whether the accuser consented or not. All they have to do is determine whether there’s a reasonable doubt. Judging a defendant not guilty is NOT the same as deciding that the accuser is lying and really, secretly, consented to sex.
Actually, in the specific case I linked to (here’s the link again) what the judge said was that if the woman couldn’t remember, that meant she consented. cite
While we’re discussing legal procedure, here’s the classic excerpt from the drama “A Man for All Seasons” by Robert Bolt, about the life of Sir Thomas More:
Yes, you are far from being the first person to think that “the default state of women is consent” is the same as “innocent till proved guilty”.
Anonymous: Well, it kinda is, though, isn’t it? I mean, if you say that you’re under that impression because Karl back at the main office gave you a work order saying that this was the one to demolish. . . and the prosecution is unable to produce a work order showing a different address . . . I think most juries would find that that’s a reasonable doubt.
Men accused of rape don’t even have to show a work order. It’s as if all buildings were assumed to be available to anyone with a demolition truck to knock down, and if you wanted to prosecute someone for demolishing a listed building, you first have to prove they shouldn’t have demolished that building. And if there’s no proof anyone ever asked them not to demolish that building, then acquit them without a trial – they had a legal right to demolish any building, anywhere.
Yes, and this was not a case here in the USA. This case indicates precisely nothing about how standards of evidence, consent, juries, etc., work here. As I said earlier, I think here in the US, the case would have likely gone to trial. I’m discussing US law because that’s what I’m familiar with.
AND NEITHER WOULD THE DEFENDANT IN THE CASE I POSITED. Absent hard evidence (like a work order) validating either the prosecution or the defense, the presumption is for the defense. That’s my point. It IS up to the prosecution to prove that 1) The accused shouldn’t have demolished that building and 2) if he claims he was instructed to demolish it by a lawful authority, to show he wasn’t.
And look, the evidence that he wasn’t instructed to demolish it can include many things besides a work order, like ‘Karl at the main office’ saying “Look, I remember for a fact I didn’t tell him to destroy 704 Maple Lane, I told him to destroy 407.” That’s admissable. If Karl says, however “Well, I don’t really remember what I told him. I was pretty drunk at the time. I don’t have a work order, but I don’t think I would have told him to demolish 704,” well . . . let’s just say that that’s good for the defense.
I hear what you’re saying, I really do. My impression (and please restate or claify if my impression is mistaken) has been that you would like the court to rule on what’s likely or not . . . to look at a case like the Dougal one and say “Well, come on, she’s never had sex with this fellow before, and they were in the hallway, and she was drunk . . . it’s very likely it was rape.” And that’s true. I believe that this was probably rape. I believe that this Dougal guy is most likely a rapist. The problem is that as long as he says “She consented” and she is unable to say “No I didn’t,” there’s going to be a reasonable doubt. Is it possible she consented? Yeah. Is it wildly implausible? No, I don’t think so . . . it’s kinda implausible, but not outside the bounds of reason. Add in that our presumption is of innocence and our legal principle is that it’s better to let a guilty man go free than to convict an innocent one, and I just don’t see how the change you’re proposing would work.
I would love to see more rape convictions. I would love to see less rape. I’m unwilling to risk changing our standards of evidence in order to achieve that end.
So far as the cite you provide goes the judge didn’t say that if the woman couldn’t remember, that meant she consented.
(1) During cross examination the defence barrister argued it was impossible for her to be sure she had not consented, as she could not remember what happened.
(2) The prosecution barrister then said he was abandoning the case. As after cross examination there was an evidential problem. She could not remember what happened. So she couldn’t testify that she didn’t consent. As drunken consent is still consent, she may have consented (the defendent’s position), then it may not have been rape. That was fatal for the prosecution’s case.
(3) The Judge then instructed the jury to return a not guilty verdict.
Anonymous;
You could say you were under a false impression because Karl back at the main office gave you a work order saying that this was the one to demolish. . . and the prosecution may be unable to produce a work order showing a different address . . . but you are still in trouble. That’s simply not an excuse. As the law stands you have a responsibility not to knock down listed building. Ignorance of whether they’re listed isn’t a get out.
The fact that some of us are lawyers and some of us are not is clogging this discussion beyond rescue, I’m afraid.
Lawyers, remember in law school when they told us they were going to teach us “to think like lawyers”? Surprise, they meant it!! Furthermore, it’s mode of thinking not common in the non-lawyer population. And even further than that, it’s a mode of thinking which is unintelligible to most people.
All I can say is that lawyers are in the business of trying to make this society work. Unhappily, there are people who have no regard (or, not enough regard) for the rights of other people, and these folks commit what the law defines as crimes. One crime is rape, commonly defined as sexual activity without the consent of the other party.
When we say that the guilt of the accused must be proven beyond a reasonable doubt, that the burden of proof of guilt is on the State, and that lack of consent is an element of this crime, we are not trying to make Great Big Statements about the relationships between men and women, about whether women have to think that every man they meet has some kind of “right” to assume that they want to hop into bed with him that minute, all that.
We’re just trying, in the most straightforward way we can think of, with due regard to the rights of the accused (a big value in this culture), to identify these creeps and get them off the streets (out of the bars, out of your bedroom, whatever).
Let me clear one thing up, however. If the only evidence we have about the woman’s consent is her statement that she didn’t, it is entirely possible – it happens all the time – that this will convince the jury beyond a reasonable doubt that she didn’t consent. (After all, who would know better than she would?) Nothing in the law requires more than that.
If she says she didn’t and he says she did, then the jury will decide who they believe, on the grounds upon which we all of us judge all statements. That’s why we have juries – to listen to testimony and to apply common sense (not lawyer “sense”) to the question of who is telling the truth. If she is unavailable to testify (say, he killed her afterwards) then the jury will decide whether she consented on the basis of whatever other evidence is available. (If he killed her afterwards, his goose is cooked on the rape issue usually.) Was she unconscious? I as a reasonable juror would have to hear something pretty fancy from the defense to move me from my idea that she didn’t consent. And that’s OK, that’s enough to convict.
Proof “beyond a reasonable doubt” doesn’t have to arrive in the form of a semi full of gold-sealed documents. For example, I believe right now beyond a reasonable doubt that my husband is at his office, and I haven’t checked or called him or something. That’s perfectly acceptable, and would be if I were a juror.
Anonymous: And that’s true. I believe that this was probably rape. I believe that this Dougal guy is most likely a rapist. The problem is that as long as he says “She consented” and she is unable to say “No I didn’t,” there’s going to be a reasonable doubt.
Only if (a) we assume that the default state of all women is consent, and (b) we assume that “reasonable doubt” means “I can, though I think it’s really, highly unlikely, see some way that this person could just possibly not be guilty”. If we don’t begin by assuming that women consent to sex with any man, anywhere, any time, and we then examine Dougal’s statement, does it stand up to the “reasonable doubt” test? You just said that it didn’t.
And look, the evidence that he wasn’t instructed to demolish it can include many things besides a work order, like ‘Karl at the main office’ saying “Look, I remember for a fact I didn’t tell him to destroy 704 Maple Lane, I told him to destroy 407.” That’s admissable. If Karl says, however “Well, I don’t really remember what I told him. I was pretty drunk at the time. I don’t have a work order, but I don’t think I would have told him to demolish 704,” well . . . let’s just say that that’s good for the defense.
Dougal with a demolition truck demolishes a house. Claims that Karl told him to do it. He has no previous professional connection with Karl: his story is that Karl, who he met by chance that day, whom Dougal knew was drunk, told him to demolish the house. Karl says he was drunk, doesn’t remember Dougal, and is sure he wouldn’t have told Dougal to demolish the house.
We can leave to one side the issue of whether or not Karl did or didn’t tell Dougal to demolish the house, or whether it was 704 or 407 that should have been demolished.
The question before the court is: Should Dougal have demolished the house, even if it’s true that (as Dougal claims – there is no other evidence) that Karl told him to do it?
One change I would really like to see made in the law is that drunken consent should not be considered consent (Unless consent has already been granted prior to the drunkenness. I want to preserve the right for my wife and I to get wasted and have sex with each other.) It would have neatly cleared up this case, and, I suspect, plenty of others.
One change I would really like to see made in the law is that drunken consent should not be considered consent (Unless consent has already been granted prior to the drunkenness. I want to preserve the right for my wife and I to get wasted and have sex with each other.) It would have neatly cleared up this case, and, I suspect, plenty of others.
Well, aside from the question How Drunk (one beer? six beers?) this seems a good idea.
I don’t practice in this area, and the law on this will vary from State to State, but just on general principles I’m guessing that this is already the de facto rule in a lot of jurisdictions, just because it makes sense. If I were on the jury, this argument would certainly make sense to me.
No, but see, it has been asserted, by an eyewitness, that she did consent. There has been no testimony in contradiction. We assume everyone is telling the truth unless there’s a conflict.
No, I didn’t. I said that he’s probably guilty. Do I have doubts? Yes I do. Would I vote to convict? Probably, but only because of my belief that drunken consent is not consent, which I’m unsure is supported by law. If you are a person who believes that drunken consent can still be considered consent, then there’s absolutely a reasonable doubt.
More to the point, agree or disagree with this, it’s still the exact same standard of evidence that’s used in every single criminal case, and doesn’t require any invention of ‘presumed consent.’
We are not ‘presuming’ consent. One of the primary parties claims consent, and the other does not dispute. THIS IS NOT A PRESUMPTION.
That’s a good question. That’s the question of whether drunken consent is consent. You know my position on that, and what I believe the law’s position on that should be. Of course, the house demolishing example doesn’t map precisely, as it involves a third person (the owner of the house) and house demolishing is generally not consensual, and sex generally is, and for many other reasons. I only brought it up to demonstrate how standards of evidence work.
I’m not arguing that the outcome of this case is optimal. I’m just arguing that there isn’t a different standard of evidence when it comes to rape than when it comes to anything else.
I’m still very interested in what concrete changes you would make to the law, Jesurgislac. We agree that this is a problem, and I’ve proposed one change I would make. What changes would you make? How should this have played out?
Yeah. What I worry about is cases like this where the judge instructs the jury that if consent was given, regardless of the mental state of the victim, then it’s consent. I tend to think it’s safer to avoid that altogether.
I think the idea that drunken consent should not be considered consent is a really, really, really, idiotic idea.
In the extreme case: two people get drunk and have consensual sex, they both live happily ever after. Should this be prosecutable? While you write your answer I’d like you to bear in mind the logic that made being gay a crime for most of last century.
If you think don’t think the above is a crime, then I”d like to hear why. They clearly didn’t consent, so I suppose you’re going to need some form of binding future consent (marital rape, anyone?) or some formal definition of after the fact consent (So a crime has occurred, until you wake up the morning after, at which point you can give consent and it hasn’t).
Now, assume we prosecute the man for rape. He goes to jail. But he was drunk too, so hasn’t the “rape-victim” also commited a crime upon her rapist? If drunken consent isn’t consent, then he couldn’t have consented to anything either, and she’s guilty of indecent assault.
If one person’s drunk and the other’s not, then the sober person can consent, but the drunk can’t. So blame lies upon the shoulders of the sober party. Can you see where I’m going with this? It could be the basis for an interesting drinking game, but I think it’d make a bad law.
This *is* the law in the UK 9since 2001) – hence the uproar and the referral of the case back to the Director of Public Prosecutions as it appears that the Judge did not know the law.
Hmm. All good points.
I tend to think that the law could be written with sufficuent caveats so as to avoid a lot of this, but yes, a blanket “drunk=rape” is probably a bad idea.
To address a few of your specific issues:
No. Who would press charges? I think of this more like theft and less like murder, in that I don’t think it should be prosecutable without the victim pressing charges. I actually think of many sexual crimes this way, as what’s sexual battery to you may well be a pleasant night of spanking to me. If you’re so poorly in touch with your partner that after an evening of drunken sex together, they press charges, I tend to think that maybe that is rape.
As for who’s the rapist . . . hmm . . . I tend towards saying that the sober party needs to bear responsibility for what happens, as they’re the one without the diminished mental state. All of this is just gut reaction stuff, though, and the issue of consent tends to be confusing to me when it gets into this kind of territory or age of consent issues.
I don’t want to end up with a situation like we have now where if two 16 year olds take pictures of themselves having sex, they’re both guilty of rape and posession of child pornography. That’s crazy, and I realize that.
I don’t know the answer, but thanks for keeping me honest, Nik. It’s good to look at the unintended consequences of all of this.
nik Writes: In the extreme case: two people get drunk and have consensual sex, they both live happily ever after. Should this be prosecutable?
If neither party brings charges, of course not. Are you arguing that, if someone gets drunk in company, their consent to sex with whoever they’re with can be presumed? If so, that’s going to lead to a lot of solitary drinking…
Jes/Anon;
As I understand it charges are pressed – in the UK – by the CPS. You can procecute someone for a crime without the victim’s consent. All that is needed is the crime to be reported to the police, and enough evidence to be collected to make it stick. It’s (obviously much) harder to prosecute without the cooperation of the victim, but it’s been done. A third party can report something, the police can find evidence, and things can go from there. If dunken consent wasn’t consent; then all you need to prove is that someone was drunk and that sex took place.
I think, that for such a serious crime, you shouldn’t brush away examples of it being committed which you don’t object on the basis that they won’t get brought to court and your just after the bad guys. Someone could not have a problem at first, but could always change their mind and bring an accusation later – say if things had gone badly in the relationship. They would have still been drunk, a serious crime would have still been committed, and the person who committed it would still be liable. I think if legitimate activity falls inside it, then it’s a bad law.
Although I, personally am restricting my discussion of what I think is good and proper for the law to do to discussion of US law (which may be part of why I’m unclear on your argument about ‘listed buildings’), I take your general point.
I do think the concept of pressing charges against the wishes of the victim is something that needs to be restricted to certain very specific crimes where a victim is unlikely to be able to press charges on his or her own, rather than just any crime in general. This prosecution against the wishes of the victim has lead to such famous British travesties of justice as prosecuting (and convicting) a husband for mutually consensual BDSM activity with his wife.
Anyway, that’s a bit far afield, but no, I’m not talking about the UK, and yes, I think there are problems with the drunk=rape proposal, but yes, I still think that there has got to be a way to make it workable. I mean, heck, I’d like to read the text of the law Spicy references . . . it’d be interestign to see how they actually did it.
Oh damn. Please remove one of the duplicate posts . . . and this post. Thanks.
This is a really trivial point, but “the UK” isn’t a single jurisdiction. Scotland has a separate legal system, in which crimes are prosecuted by the Procurator Fiscal (rather than the CPS), and in which different standards of corroboration are required. (We also have the worst attrition rate for rape in Europe. Go us.)
N. Ireland is also a separate jurisdiction, but I know nothing about their legal system, except as it pertains to equalities issues.
You’re absolutely correct and I apologise for my sloppiness.
You can read the full text here but there are summary versions here and here.
There’s also these two reports: ‘A gap or a chasm? Attrition in reported rape cases’ and ‘Investigation & Prosecution of Rape Cases: HM Inspectorate of Constabulary’.
The first of these reveals that 80% of reported rapes never make it out of the police station to the prosecution.
Anon;
BDSM (and earlier prosecutions for “consenting” gay sex) was one of the concerns I had in mind when I wrote the post. And just on a basic level: if something’s wrong it should be a crime and if something’s not wrong it shouldn’t be a crime. I’m very wary about making something that isn’t wrong a crime on the basis that we’ll just ignore that “crime” and only go after the bad guys.
I’m not sure Spicy’s correct that drunken consent isn’t consent in the UK. All I can find in the law is a presumption that if someone causes the complainant to (non-consensually) take a substance which could cause the complainant to be overpowered at the time of the relevant act, and the defendant knows this, then the complainant is presumed not to have consented. And a similar presumption if the complainant is unconscious.