I was disappointed and upset to see that this case resulted in an acquittal. It’s hard to be surprised, the woman was drunk, and it’s hardly news that there are people who believe a drunk woman automatically consents to sex. But what really upset me, was the effects this is going to have on her life:
The complainant, who is also a student at the polytechnic, told the Nelson Mail that she planned to pull out of her studies at NMIT and transfer to another polytechnic, because she felt she could not return to the campus if Mr Singh was there.
NMIT chief executive Tony Gray said the polytechnic would continue to manage the situation if both students decided to stay there, as it had done previously by making arrangements to limit their contact on campus.
Without a guilty verdict this woman has nothing. Her polytech can’t even guarantee that she won’t have to see the man who raped her. To do this is to choose the abuser over the abused, because it is those who have least power who will feel compelled to move on.
The justice system don’t care what survivors of sexual violence want, or what they need to get on with their life. There is no way for a woman to say: “I want to live a life free of the man who raped me” without first proving that he raped you beyond reasonable doubt.
We all know that most rape cases will not result in convictions. We must be able to offer those who have been raped something more than the responsibility to avoid their rapist.
This post is open for feminist and feminist friend commenters only.
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that link is broken…
I think cases like this expose a major weakness in most criminal justice systems — there’s no such verdict as “We think something bad happened, but we’re not sure enough to put someone in jail.”
The “beyond a reasonable doubt” standard of guilt fails victims when there is uncertainty over both guilt and innocence. Based on what little information is available in the second article — she was drunk, he was drunk, neither seems exactly sure of what happened — I doubt that I’d have been able to convict (hint: get that first link fixed). And yet, for her to feel forced to leave NMIT and pursue her studies elsewhere, I don’t doubt that something traumatic, even if it doesn’t reach the level of legal certainty required to convict Singh, must have happened and the State has an obligation to protect her.
This also, as I’ve pointed out in prior discussions about rape, shows that there is a need for more “degrees” of rape so that marginal cases where “Gee, I don’t remember!” is the defense have a greater chance of resulting in conviction.
Furry has given us a balanced evaluation.
I realize that it’s easy to presume that this guy was guilty of something, and indeed, I’m presuming that myself, but think. What if you were accused of a felony? Would you want the standard of proof to be, “well, we presume that you’re guilty of something or other”? There are very good reasons that the standard of proof in criminal cases is “beyond a reasonable doubt.”
The culture is well aware that this means that a lot of people who really are guilty will go free. But it’s either that, or living with the idea that a lot of innocent people will be convicted. (Not that they aren’t anyway, but more.) Anglo-American jurisprudence has cut its choice for the former, and correctly I think.
This does, however, leave the victim up something of a tree. Perhaps, probably, the State does have some kind of obligation to protect her. But by doing what exactly?
I like the idea of degrees of rape, something like what we have for homicide. You act, someone dies as a result, and we have a whole spectrum of possible responses, all the way from negligent homicide to murder one. This makes it much more likely that some sanction or other will be applied, whereas if all we had was murder in the first degree or we let you loose, it would be a lot tougher to convict people who aren’t exactly murderers, but who aren’t exactly totally innocent either.
In this case what could the polytechic reasonably do? The accused has been found innocent in a court of law, to further punish the accused for something that may or may not have occurred (both seem to admit to being drunk, he may have acquired active consent that neither of them remembers after the event). Yes it is a shame that she feels required to leave the tech however what could realistically be done other than attempting to minimise the contact between the two?
Forgot involuntary manslaughter at the lower end there. :)
Chris, are you a feminist or feminist friendly?
I think Chris raises an important question. The man was acquitted at trial: what could be done, legitimately? The legal reality is that the only black mark against him now is that he was once accused. If the school makes it a rule to expel everyone who was ever accused of a crime, regardless of final disposition of that accusation, people who are absolutely innocent of any wrongdoing but got caught up some drama will have their lives ruined too.
Unless the school has some nebulous honor code that can find some greater infraction of “upstanding behavior” in his role in being part of a incident between two people who were very intoxicated and in which neither party can convincingly recall the substance of the events which unfolded, expelling the man would violate his rights, which he retains, whether we like it or not, or believe that he is a rapist despite the acquittal, or not.
In the U.S., at least, there is always the civil standard (“more likely than not”, or 51% sure). That can be used to try to win cases when the criminal charges have failed.
the problem goes back to that whole moral/criminal rape thing. Without even reading the link yet, do I feel sympathetic to her? Yup: She feels like she was raped; she is obviously upset; she is distraught. His actions or burden are irrelevant to my sympathy.
The problem though is what to DO about her upset. Even if there were “degrees of rape” there would not (I hope) be “degrees of guilt.” How can we properly institute disciplinary procedures against someone who (so far) has yet to be found guilty of anything?
Her pain is real, but the harm suffered if we start punishing folks we haven’t found guilty is real, too. It’s a hard things to balance out.
mandolin, I hope referring to the standards of the law does not disqualify one as a feminist or feminist-friendly. Surely feminism is not confined to people who have only disregard for the law?
Sailorman is right. This is a tough call. Not all allegations of rape (or of any other crime) are accurate. Not all of them are honest even. (Women are human beings too, and hence subject to failings, and sometimes downright malice.) Polytechnic can hardly institute a policy of punishing everyone with whom someone else becomes upset, regardless of the objective reality of the alleged wrong. That would probably work out to be unfair to women about as often as it worked out to be unfair to men, and anyway, why would it be OK to institute a policy we knew ahead of time to be unfair?
Rape is a crime, and quite properly so. Accordingly, the standard is “beyond a reasonable doubt,” and this guy was acquitted. Anyone who has a better way to handle something like this is certainly invited to come forward.
Sailorman has exactly the right idea. You can’t dish out criminal punishments if proof isn’t given beyond a reasonable doubt. But you can make a civil case against people based on the balance of probabilities. I think there’s a lot of mileage that’s yet to be explored in this. There’s no reason why the civil courts shouldn’t be used to place a whole range of conditions on people acquitted of rape which are then enforced using the criminal law. I think that’s what we need to be arguing for.
In this specific case, I don’t know anything other than what was in the article. It looks a bit more complicated than Maia’s ‘she was drunk, a drunk woman automatically consents to sex’. It’s tough to prosecute a case where the complainant can’t remember what happened, and can’t testify that she didn’t consent. It shifts the evidence from ‘I didn’t consent’ to ‘I can’t remember whether I consented, but I don’t feel I would have in that circumstance’, which is much weaker.
The Scottish have a third verdict option, beyond Guilty or Not Guilty, which is called “Not proven”. I don’t know much about it though, perhaps another reader does?
Susan writes:
Some feminists advocate restorative justice as an alternative approach which is useful in some cases.
My understanding is that “not proven” is very close to “not guilty” in Scotland. Any Scots here to comment?
Re restorative justice, after reviewing the links, I find that
Would the man in this situation be willing to admit as much? It sounds like neither party remembers what happened, and if so, he may not be willing to acknowledge any responsibility. I gather that the restorative process appeals mostly to defendants who have good reason to think they might be found guilty if tried (or who have already pleaded guilty); but this guy has already been acquitted.
That said, this process seems useful in some circumstances, but it does require either a “responsible party” who feels some guilt or, more likely, who fears criminal conviction and is trying to evade that consequence.
First, I think the “restorative justice” link Ampersand referenced is a great idea — if the perp is willing to actively participate, but it sounds like Singh doesn’t see himself as a rapist. I’d expect someone who understands what the victim has gone through to see her pain and realize that even if they violated no laws at all — even if it was some kind of “honest misunderstanding” — they have an obligation to fix what’s broke.
But what about the obstinate offender? The rapist who thinks that all dirty tricks are perfectly okay, because it’s all about scoring sex? There’s still a victim, but now the system has no way of dealing with the person and because they have been found “not guilty”, the system has no way — and shouldn’t, in my opinion — of doing anything to the suspect.
Where I think “degrees of rape” is something that needs to be further investigated, and I’m not referring to “degrees” in the felony sense,but in the misdemeanor sense, is the blackish-red range of the graphic in post Ampersand referenced. When consent isn’t completely clear, not freely given, or not capable of being completely freely given. An official state enforced way of saying “Your behavior is wrong. Maybe not wrong enough for 2 to 10 in the big house, but do that again and maybe it’s 30 days in the county jail.” I’d hate to see the teenage boy in the example from Biting Beaver’s blog sent to penitentiary for 2 to 10, but I’d equally hate for him to think what he did is right and keep doing what he did, leaving a trail of messed up girls behind him.
Sailorman I’ve asked you not to post in my feminist or feminist-friendly posts before, if you do it again I will ban you from all my threads.
Nik and Chris I have no reason to believe that you guys are feminist or feminist friendly, and your perpetrator focus confirms that. Please don’t post here again.
This kind of guy is the real problem. That’s what we have the criminal law for, to coerce bad actors like this, at gunpoint if necessary. But if he’s acquitted (this time)? then we can’t touch him, because all other forms of reparation require his consent, and he doesn’t. Consent.
I’m still liking the degrees of rape idea – that maybe we can’t prove beyond a reasonable doubt that she didn’t consent (2 to 10 in the big house) but we can prove that she wasn’t capable of informed consent, and that you knew or should have known that (30 days in the county lockup. this time. more next time.).
Akin, then, to involuntary manslaughter. OK, we know it wasn’t premeditated murder, but it wasn’t OK either, so there will be adverse consequences.
I’m pretty sure this is the link, and it refers you to this story:
It sounds to me like the woman remembers going to bed alone, fully clothed, and what she doesn’t remember are the specifics of how he raped her while she was passed out. That’s a far cry from not remembering if she consented.
[Comment deleted by Amp. If you want to argue about it, take it to email or an open thread; post again on this thread and you will be banned from “Alas.” –Amp]
A court order banning this creep from being within a certain specified distance of this woman should be fairly easy to get under current law. Standard order of protection. I’d be surprised if she doesn’t have one already.
Orders of protection are not unusual (and are usually ineffective). But courts are justifiably wary of issuing orders which may be difficult or impossible to enforce, and the relative lack of success of orders of protection has strengthened them in this resolve. No court in its senses will order someone to stay sober, or to stay away from drunk women (or, men), no matter how good an idea such behavior might be (for this guy, or maybe for all of us, huh).
What courts really adore are (1) criminal convictions, and (2) money judgments, because both are relatively easy to enforce. But organizing the private lives of people who haven’t even been convicted of crime? The system can’t even manage that in the case of paroled criminals. Unless we want armed police agents in every home, at every party – a remedy worse than the disease – we’re going to have to resign ourselves to living with this Singh creep and his ilk.
I’m wondering, though, whether by stretching the definition of intentional infliction of emotional distress just a tad she might get a money judgment out of him, which might at least make her feel better and him feel worse.
[Comment deleted by Amp. If you want to argue about it, take it to email or an open thread; post again on this thread and you will be banned from “Alas.” –Amp]
Irony? Nah….
Hmm, I tried this before, but: I think this is the broken link from the post.
Seriously, Defenestrated. I was seeing that and just freaking boggling.
How come every time I try to post a fixed version of the broken link, my comment disappears?
Anyhoo, it’s on Maia’s blog, March 5.
Hey, defenestrated, is there somewhere I could send you an email offsite? I’ve been poking around your website looking for it, and it’s either not there or I’m missing it or something.
Sheesh, y’know, you’d think I’d have that somewhere. No, you weren’t missing it, but now it’s at the bottom of the page. Thanks for the tip :D
I wish I could say I boggled – partly because boggled is a fun word – but I was at least amused to see their argument in action. “I know you don’t want me to do this, but here are the reasons why you should be ok with it.”
Hey Amp – didn’t there used to be a “Your comment is awaiting moderation” message? I keep making an ass of myself :(
Since several people asked for a Scot to comment – the “Not Proven” verdict in Scotland is not at all like “not guilty”. For a start I believe it exempts cases from doubly jeopardy law ie cases that are pronounced “not proven” can be re-opened as soon as new evidence comes to light. My cousin is a lawyer based in Edinburgh, and when I last discussed this with him he said that it’s pretty much assumed that “not proven” means that there was at least some suspicion that the defendent may have been guilty, and that that’s how it’s usually applied by judges, ie they hand that verdict down to defendents they would love to put away but don’t have enough evidence to do so. I’ve often wondered why other legal systems don’t have a similar option.
Side note – Please remember that I’m not actually a lawyer and it’s been a while since I talked to my cousin about it so I may be forgetting something.
Also, if any other Brits are reading – does anyone remember the name of the man who was finally convicted of a series of child murders after originally being tried and given a “not proven” verdict about 15-20 years before? I can’t look it up because I can’t remember the man’s name, but that would be a pretty good illustration of what the not proven verdict is and how it’s applied.
Um, that should be DOUBLE jeopardy, not doubly. Drinking and blogging, always a bad combination.
Sorry about that, Defenestrated! There’s an explanation of what’s been going on here.
Thanks! The first link sure does flesh out the story a good deal.
Under Scots law Not-Proven and Not-Guilty are the same verdict. Neither allows double jeopardy and not-proven is a misunderstood concept.
Originally we had: Not guilty and guilty which were modified to proven and not proven in relation purely to the facts of the case presented. A jury later returned not guilty in relation to the case itself rather than the facts (the accused was guilty of murder, but the case was not guilty).
Since then we have had this bastardised 3 state system with 2 not guilty states and 1 guilty with no difference between them. Not proven carries the stigma britgirlsf mentioned though the verdict does not actually imply that the person was guilty at all merely that the facts of the case were not proven.
Thanks for the additional information — it definitely provides details that weren’t in the second link.
I have some questions for people who might be familiar with the laws where this happened — is there a law, or at least a legal concept, that a drunk woman cannot give consent in that jurisdiction? Because if there is, I’m wondering why (but not really, as I’m sure we all understand …) there was no conviction. It sounds as though the state had witnesses and physical evidence.
From that article it sounds like Singh is very much aware of what he did, and very much has a typical rapist attitude. I don’t get “I want to have sex” from an accidental text message saying “I need help”. She’s having a party — maybe she needs help with the party? They are classmates — maybe she needs help with classwork? It doesn’t say that they had a friendship outside school, but maybe she needed help with something else? Why “I want sex”? This attitude that anything and everything means “I want sex” is something men need to just get over, and if it means a significant increase in men spending 30 days in the pokie, or working on a road crew picking up litter for 100 hours, so be it.
Furry, here’s the problem, if NZ law is like ours (and I think it is):
The law does not presume that a drunk woman can or cannot consent to sex. That’s not the operative assumption. The law assumes that Mr. Singh is innocent unless he can be proven to be guilty beyond a reasonable doubt. The court apparently felt, since on one could remember exactly what happened, that they could not say beyond a reasonable doubt that she had not consented. Maybe she did, maybe she didn’t, but that’s not enough for a criminal conviction.
And it shouldn’t be. What if, Furry, you were picked up for shoplifting because you had a piece of merchandise in your hand in the store, and the trial produced the idea that “maybe” you intended to make off with it and maybe you didn’t? Should this be enough for a conviction?
But Susan, I think in this case it’s being taken to an unreasonable extreme. More analogous would be if Furry (sorry, Furry!) were acquitted for shoplifting solely because no one saw her steal the merchandise. The store knows they didn’t sell it to her, and Furry definitely has it, but since no one can be so specific as to say “With her right hand she took it off the third shelf and put it in her back pocket.” Or whatever. My understanding of “reasonable doubt” isn’t “it’s somehow conceivable that he didn’t do it, if you tilt your head and squint and don’t think too hard.”
I have to say, in my view the verdict on this case is pretty much that a drunk woman is automatically fair game. If you can go to bed alone and have it still be construed as wanting sex since someone else wanted sex with you, then you’re not a person, you’re a toy.
“but since…” y’know, you’d think another clause would’ve ended up at the end there.
but since no one can be so specific as to say “With her right hand she took it off the third shelf and put it in her back pocket,” she didn’t do it.
Well, defenestrated, I’d agree with you personally. I think he did it, and I don’t think she consented.
The court disagreed with you, and with me – not that he didn’t do it, no one said that, or that she consented, no one said that either. All they said was, in the state of the facts (ie, no one remembers what did happen) they didn’t think it was proven beyond a reasonable doubt that he raped her. ‘Cause no one knows, huh? and that “no one knows for sure” isn’t the equivalent of “beyond a reasonable doubt.” I can sort of see that argument, can’t you?
That said, this does seem like an injustice to me. But then again, I wasn’t at the trial, and I didn’t hear the evidence. No one in their right senses has ever contended that the court system never makes mistakes, but in this case, it is what it is I guess.
Wait a minute…*reads the article*
We have testimony that a third party told Singh she was drunk, out of it, and not to go into her room. We have testimony from Singh that he went into her room and had sex with her. We have evidence that she was, in fact, drunk and out of it.
I don’t think the problem is the absence of different kinds of rape. I think the problem is that he wasn’t convicted. More specifically, the problem is that having sex with a drunk, unconscious person is not universally recognized as rape.
Also, he did it on the basis of a missed text message clearly not addressed to him. What a sad, pathetic, little man.
Dear Men,
If you happen upon a woman who has passed out drunk, get into her bed and go for it. Remember: if you don’t ask, she won’t be able to prove that she said no.
Love,
The Courts
Hm.
I think someone said something like this earlier in the thread, but now I’m wondering about “consent” in this situation. Everyone in this case including the woman is pretty clear on the idea that she was totally out of it.
Now in other situations, eg, a minor, we are clear that whatever she thinks or would have thought or whatever, she cannot legally consent to sexual intercourse, and intercourse with her is sort of “rape per se,” or as they say, “statutory rape.” (The statute says it’s rape, we don’t care what she said or didn’t say.)
If a woman is unconscious for whatever reason, she cannot consent to sex. Shouldn’t this be rape per se, like intercourse with a 10 year old? Then the prosecutor wouldn’t have to prove that she didn’t consent, because she would be conclusively presumed to have not consented.
I’m not a criminal lawyer, and I’m certainly not a lawyer in New Zealand. But I’m wondering now if we’re the first ones to have thought of this wrinkle. Could this be the law somewhere, or almost the law somewhere?
I could find out, but unfortunately I have to work for a living. :(
(hit the submit button too soon)
Notice that it is settled law in California at least (I wouldn’t know about New Zealand) that if you kill someone while dead drunk you can plead “diminished capacity,” that is, claim that you were too out of it to form the requisite intent to commit murder in the first degree. And this works, although it does get us into the inquiry into how and why you allowed yourself to get into this condition, not to mention what happens if there’s an automobile involved.
Still, it’s pretty clear you have to be reasonably sober to commit murder one. Sober enough to premeditate.
So, the law is already taking this kind of state of mind (or, lack of it) into account in another context. Shouldn’t similar considerations operate under the conditions of this case? Maybe the right question isn’t “did she consent”, maybe the right question is “could she POSSIBLY have consented.” Certainly, for example, sex with a brain-injured woman in a vegetative state is rape, on much this very same reasoning.
As I say, this may already be the law here or in some other jurisdiction. It certainly makes sense.
Susan – In the UK, they’re mulling over a law like you suggested, where drunkenness negates consent. The first link I dug up for it has a pretty harrowing story thrown in at the end (y’know, where they put the least important stuff in case the article needs to be cut):
Wait, I’m not from the UK or anything [britgirlsf?], but since when do judges tell juries what verdict to bring? Why have a jury?
Re: the California law you mentioned – After reading all this, I’d put money on us seeing it argued first that a rapist who was also drinking was of ‘diminished capacity’ and therefore less liable. I’m not entirely serious there, but then, I thought my little love letter at #40 was taking all of this to an absurd extreme…not actually echoing an actual case.
This is part of why the nitpicky semantic tangents aren’t helpful in these discussions: however the laws are written, they still rely on the decency of people to apply and enforce them. And apparently people are assholes.
Hm.
Well, in the UK and here, the judge can instruct the jury to bring in a certain verdict if the law is perfectly clear. Of course that judge can also be reversed on appeal. The idea is, if the thing just can’t come out any other way, we don’t want to turn the jury loose on its own recognizance. The jury is to find facts, not to write the law.
It’s quite likely that the rapist would argue diminished capacity in California. (I don’t know if they have that defense in NZ; he may have argued that for all I know.) It’s not necessarily a crock. I realize that he did the wrong thing, but if he too was falling-down-drunk, he really isn’t as responsible, either legally or morally, as he would be if he did it cold sober and “in cold blood” as they say.
The law isn’t “nitpicky semantics.” The law is what we have when people behave badly, which some of them inevitably will. And some people are assholes. But not everyone.
I didn’t say that the law was nitpicky semantics, just like I don’t think that it’s the law’s fault when people misinterpret it. By nitpicky semantics, I meant the wordplay and hypotheticals that tend to get brought up: amateur ;) lawyering parallel to (but perhaps less absurd than), “Well she was wearing blue, and the law doesn’t say anything about victims wearing blue, so how are we to believe her?” You know what I mean. My point was sort of that I can’t even see those kinds of tangents being brought up regarding the security guard case, due to how clear-cut the available facts seem to be. I’ve never ever heard of acquaintance rape defenses being used in a stranger rape trial, and I’m floored that it worked. And again, the ruling is that a drunk woman is fair game – to anyone who wants her.
defenestrated – I believe that it’s pretty commonplace for judges in the UK to sort of instruct the jury, but I’m not sure what the limitations are. We have an actual lawyer from Scotland on here though, maybe she/he knows more.
Juries are given instructions in the States as well. There are even cases of a “directed verdict”, although there are limitations as to what sort of verdict the judge can direct.
I guess I’m confused as to what’s different in this case.
When an attorney wants to know what went on in a particular case, she reads the case report, and if there is none, the transcript.
We’ve all been at events which were later reported in the newspapers; we can all testify as to the “accuracy” of such accounts.
We need not be surprised if newspaper articles and squibs on the internet about legal cases are confusing and probably inaccurate.
Let’s assume for the purposes of this thread that the complainant was, in fact, raped by the accused, that the acquittal was horribly wrong, and that under New Zealand’s legal system there is no possibility of overturning it. Let’s also assume that expelling or otherwise disciplining the accused is not an option available to the polytech. So assuming there is nothing that can be done *to* him, the question is what can the polytech, and the community (and society in general) do *for* her? That leads to the question of what does she (and other women in her situation want or need? I trust that Maia will let me know if by posing this question I am going off the intended topic.
I am sorry to say that I feel the “criminal justice” system favors the criminal in cases like these, for so many reasons most of us are already familiar with.
A criminal justice system based on “innocent until proven guilty beyond a reasonable doubt” inevitably gives an advantage to the accused in a rape case. So, unless the prosecution has a very strong case (and a very believable complainant), getting a conviction is very difficul, and thus many rapists get away with it. However, it doesn’t seem likely that the criminal justice system is going to be changed to impose a lesser burden on the prosecution. That is why I threw out the question of what can or should be done outside the context of the criminal justice system to help someone whose rapist has “gotten away with it.” I’m guessing that one thing would be to let her know that despite the acquittal, people still believe that she was raped, that it wasnt something she made up, and that the trauma she is going through is very real. And especially that it wasn’t her fault. However, I cannot pretend to even imagine what it’s like for a woman to be raped (I know that men can be raped–usually by other men–but for reasons I can’t explain, I sense that it’s really not the same thing). So, I’m asking the question without claiming to having even the slightest clue about the answer.
Dont want to say too much as still dreading the police conduct inquiry report here Paul1552, and hoping Maia will post more threads and comments but your post # 49 made me try to think ideas etc
Its not quite a solution for this poor girl but may relate to the difficulties for some kiwi women with a point raised by Susan in #20
I would like to see subsequent victims when complaining about the same alleged abuser to be treated with MORE RESPECT and SUPPORTED etc
Meeting abusers who have Protection Orders already in place who are becoming more arrogant and covert when on their prowl can be devastaing!!!!
At the moment with Legal Aid issues as well as all the other obstacles that some rape and abuse victims face here in NZ it kinda gets worse when discovering there are many victims and each goes through the same hard stuff etc. It has just got to change!!
Even if it was something as simple as easing the interrogations or environment that a victim faces if they seek something to help them sleep at night must become easier!!! Not that I think a bit of paper helps stop a serious problem person but even something this simple can be very traumatic for some!!
For example, to get a Protection Order in NZ requires the seeker to face the abuser or harasser or stalker or whatever and it can be worse than even a criminal trial in some cases etc There is no jury to get a PO and sometimes only a victim alone if the support person is denied entryetc. I also have no idea how some victims manage up against an abuser or rapist now with no court building security and no support so believe many victims will give up or struggle or crash etc I believe some abusers will now have defeated multiple POrders and left a trail of victims so finding solutions has got to happen!!!
Without going offtopic on Maia with this thread – my big concern for this victim is that in addition to the current harm, losses and stress she has endured so far – it is simply that without major changes happening, then some of of her future efforts to keep herself safe will also be unsupported or exploited by others etc
sorry Maia should not have said a civil action is worse than a criminal trial for a victim – it is different and both can be terrible in different ways
too fazed here middle of the night for writing better etc
Diana writes:
The “innocent until proven guilty” and “guilty beyond a reasonable doubt” standards are in place because the State has significantly more power than the accused in a criminal proceeding. Unfortunately this standard works both ways — it protects the disadvantaged against unfair prosecution when unjustly charged, and it fails to protect the victim when there is inadequate evidence for a conviction on the charges that are presented.
“Believe the victim” as a legal standard is something I’d like to avoid. It would definitely help cases such as rape, but there’s more to criminal law than rape.
FCH, I don’t think it’s that we need to automatically “believe the victim,” it’s that we need to change our sexual paradigm to one in which affirmative consent is the expectation. Currently, the onus is on the victim to prove, not that there was sex that she didn’t want, but that the rapist knew that she didn’t want it (as opposed to “she was drunk, so I just figured…”); a conviction (in practice, if not in theory) requires proof of that awareness of non-consent. When we take the view that sex is not ok without full enthusiastic involvement, the burden of proof lies on whether or not the accuser actively consented, not on how actively she resisted (or was able to resist).
It’s like, say I sell you a broken tv (I know this analogy only applies very narrowly, but bear with me for a sec); I could argue that you came to me seeking a broken t.v., but the burden would be on me to prove that, not on you to prove that you thought you were getting a working t.v. Surely some people have a use for broken t.v.s (prop masters, say), but we assume that the norm is that unless otherwise indicated, people don’t want broken t.v.s. Currently we take the unspoken view that sex (for women, anyway) is an interchangeable commodity and that if she’s slept with one then she might as well have slept with ’em all, rather than fully recognizing that there’s the wonderfulness of consensual sex (working television) separate from the awfulness of rape (broken television), and that there’s no mistaking or substituting the one for the other. When we stop taking the assumption that every woman is supposed to be available for sex with anyone always, the burden falls more on the accused to prove that he sought and received consent.
If this weren’t a feminist-friendly-only thread, someone would almost surely jump up and say “Like what? A signed consent form?,” so I’ll go ahead and answer them anyway: Yes. If you’re so afraid of false accusations that it trumps your concern for others’ safety, then have your partner sign a form – or, better, don’t sleep with someone whom you so mistrust. The only people who wouldn’t benefit from such a policy would be those who truly aren’t interested in their partner’s consent and just don’t want to give up taking home drunk bitchez who wouldn’t screw them while sober.
And just to double triple clarify the second person in the last paragraph, “you” doesn’t mean you.
I guess my point sort of is that the crime should be having sex with someone without full awareness of their full consent, not having sex with someone who made it clear enough that it was unwanted. It wouldn’t by any means entirely solve the inherent problems of dealing with rape in our legal system: false accusations would still be possible and therefore necessary to guard against, but they’d be a lot harder to make if the accuser has actively said “yes I want to fuck you”; the accused could still falsely claim that he got that consent, but I still think that’s a huge improvement over “she sent me a text message” being enough to signify consent.
I instinctively had a problem with the idea of different sentences for different “degrees of rape,” a la comment 2. It took me a long time to figure out why.
But I’m sure that if such a reform were passed, conviction rates wouldn’t go up, but date rapists, people who apply nonviolent coercion/pressure, etc, will just get reduced sentences. The net result would be to make rape a less-severely punishable crime.
I’ve been thinking about what Paul1552 said:
Would it be a form of double jeopardy if acquaintance rape cases that are ruled ’not guilty’ were automatically referred to something similar to restorative justice programs? Not the reparations part – that almost certainly would constitute double jeopardy. But some sort of situation where the trial is over so it’s safe for the guy to talk about how he saw what he did, and a validating environment for victims to express the impact on them.
That way we would acknowledge that whether it really was an ‘honest miscommunication’ or if there just wasn’t enough evidence to convict, the fact that an accusation was made at least signifies that the accused needs some sort of education about how pleasant, mutual sexual interactions are supposed to work.
Oh yeah, and if I had remembered to tie it back to the quote I was responding to, I would have added:
And it would also
That’s an interesting idea, and I can see how in some situations that type of program could be healing both for the victim and for the accused (who may see himself as the victim of what he sees as a false allegation of rape). But I’m not sure about the *automatic* part.
First, it may not be something the court can require of someone who has been acquitted. Second, and more important, the victim herself may not be ready for another encounter with her attacker even in the most supportive and affirming of environment. Still, if handled correctly–and under the right circumstances–being able to confront her attacker may help her in the transformation from rape victim to rape survivor.
defenstrated writes:
But the system we have is based on the State having to prove the case, not the defendant. And this is a very valuable part of the “innocent until proven guilty” and “guilty beyond a reasonable doubt” model we have. We don’t want the accused having to prove innocence because, generally speaking, innocence is impossible to prove.
Boy meets girl.
Boy chats up girl.
Girl says yes.
Boy hands girl “sex consent form”.
Girl signs form.
Boy and girl get busy.
Girl retracts consent.
Boy cannot prove that girl didn’t retract consent.
Boy meets girl, gets signed “sex consent form.”
Girl gets pissed off, steals form from boy’s pocket, calls police.
Boy meets girl, boy rapes girl, girl calls police.
Boy claims girl stole “sex consent form”.
How does a “defendant proves innocence” model work in these cases? The answer is, the defendant doesn’t because the defendant cannot prove their claim.
The case at hand is one of a woman who was drunk and a man who took advantage of that drunken state. Those are the facts and the State needs to be able to find a way to prosecute that case without any input from the defendant.
Was she drunk? Yes.
Did they engage in some form of sexual conduct? Yes.
Based on those two facts the State needs to be able to prosecute the case and obtain a conviction. If he was also drunk, and the State wants to make that a mitigating factor, fine. That’s something the people should decide as a matter of public policy. But the basic facts above — it is illegal to have sex with a drunk woman should be the law.
To get back to the “The dude sold me a broken TeeVee!” analogy, should it a matter of Law that it is illegal to sell broken televisions? If we put the burden on the defendant, we’re again forced into a situation where the defendant cannot prove either way that the television worked. Absent substantial evidence that the television was broken long before it was sold, we’re down to a “He said / She said” situation — I say it worked, you say it didn’t.
It might be good business practice to plug it in and turn it on, and perhaps that should be codified for the sale of open box used televisions, but sex is not like turning on a television. There is no “Oh no, turn it off! Turn it off!” going on with televisions as there can be with sex.
Sensible. Provided that we have a standard of “drunk” (as to the woman) and can test for it (or, as in this case, get credible evidence of it). Drunk = unable legally to drive? Perhaps. This is a detail.
I like the framework, though, because it fits so nicely in with sex-with-woman-in-coma. That’s sort of per se rape, because she cannot consent. Or statutory rape, same observation. After all, if defendants can have “diminished capacity” to form the intent to commit a crime, couldn’t the woman in this case have diminished capacity to consent?
He didn’t know she was drunk? Why not? Everyone told him. He couldn’t evaluate that because he was drunk too? Let him plead diminished capacity, and perhaps be convicted of a lesser offense. But don’t let the guy just walk, that’s an insult to the woman.
Hmm. I did warn against trying to extend the tv analogy; I was under no illusions that it would hold up broadly. I probably could’ve found a less roundabout way of making my point in the first place, though.
No, there shouldn’t be a law against selling broken tvs (what would all the poor prop masters do?). But working tvs and broken tvs are still inarguably different; I can’t make the case (logically, anyway) that because you’ve previously been known to enjoy watching working tvs, then you’re reasonably expected to be happy to have a broken tv forced upon you. I’m only digging myself deeper into nonsensicality, aren’t I?
To borrow Susan’s coma patient, it would be a similarly ridiculous claim to suggest that since the patient was known to have a sex life (even, say, with the rapist-to-be) ‘before the accident,’ she was obviously open to whoever having sex with her while she’s comatose. I was trying to get at the fact that it should, ideally, be equally ridiculous to make the same claim of someone who has passed out for the night. In practice, what you (FCH) and Susan have said in the last couple comments are the only feasible applications I can see for where I was going with all of that.
Defenestrated,
Yeah, you’re digging yourself in further, precisely because who knows what the parties were up to?
I go to your store.
I tell you I’m with the local high school drama department and want a TV.
You assume I want a prop TV.
I really want a TV for the green room.
You sell me a broken TV.
I’m upset and call the police.
Now, prove intent to unlawfully sell a broken TV.
Or I tell you I fix TVs. Or you know my cousin who fixes TVs, or any number of other explanations.
With “TV sales”, I can give you a piece of paper which says “As Is” or “Not guaranteed to work” or “Hey! I never turned it on!”, and you have to make an informed decision, including whether or not you ask to see it plugged in, before you buy.
But with sex, the “transaction” isn’t a single event that’s fixed at a point in time. Sure, some “transactions” are clearly wrong from the start — I walk into the store pointing a gun at you and ask for a TV — but plenty of transactions are right from the start — I hand you a check I don’t know is bad, you hand me a TV you don’t know is broken — and the crime isn’t realized until after the fact.
Another aspect of sex that isn’t like a television is that sex is mostly a private event without witnesses. I come to your house, you make me a nice dinner, we watch TV, and the next thing I know, O.M.G!, you’re slobbering all over me and copping a feel. Who get’s believed here? There isn’t going to be another “customer” who remembers me, or a video camera that shows me waving my gun around, or a receipt book where it says I gave you $25 for that TV.
The problem of prosecuting rape has to be solved by avoiding the problems which are unique to “sex”.
OK, let me say this for now the third time: let’s not extend the tv analogy. I only used it to illustrate a particular point. You’re welcome to keep arguing against it if you like, but since I’ve already agreed with you, I’m not sure what the point is.
Oh. Okay.
Never mind …