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Rape, Consent, and the Presumption of Innocence
Grid System
Registered User regular
Registered User regular
I'm going to try to keep this brief.
People say that in order to preserve the presumption of innocence in rape trials, accused rapists cannot (must not) bear the burden of proving that the sex between accused rapist and survivor was consensual.
This is (or should be) wrong.
So what is the presumption of innocence anyway? The presumption of innocence is a legal principle that guides the trier of fact (the judge or jury) when they weigh the evidence to arrive at a verdict. It tells the trier of fact that the accused is deemed innocent until the prosecution advances sufficient evidence to prove (beyond a reasonable doubt) that the accused committed the crime in question. In other words, the presumption of innocence challenges the prosecution to "prove it or lose it".
What the presumption of innocence does not require from the prosecution is evidence to refute an affirmative defence. For example, in order to preserve the presumption of innocence in a murder trial, we some jurisdictions* do not require the prosecution to proactively refute the claim that the accused was defending herself.
What does this have to do with rape? Well, conventional wisdom is as I described above. The prosecution must prove that sex did happen between the two specific people, and that the complainant did not consent. The way laws are set up, this is true. However, it need not be the case, and the fact that it is the case shows that we have some peculiar ideas when it comes to consent for sex.
I want you to think about theft and property law for a moment. You own things. The fact that you own them means that other people can't just take them without your permission. And we presume that, absent evidence to the contrary, you don't permit any random person to take off with your things. If someone takes something that belongs to you, the law does not require you to prove that you withheld permission. If the person who took your property wants to claim that you gave them permission--in other words, that you consented--that is on them. This does not violate the presumption of innocence, because the prosecution always has to prove that the person who took your property actually took your property.
For some reason, we don't see consent to sex in the same way. When we expect the prosecution in a rape case to prove a lack of consent, what we are saying is that the default position is one of consent. That strikes me as very weird and wrong. In order to keep things consistent, we should take the same approach to the right to sexual agency and bodily sovereignty as we do to the right to ownership and exclusionary control of property. We ought to presume that people default to a state of control and exclusion unless they give some indication to the contrary. This will not violate the presumption of innocence in rape cases, given that the prosecution will always need to prove that the accused had sex with the alleged survivor (and this is by no means trivial). I think going this way is better than applying rape-reasoning to theft cases, for what should be obvious reasons.
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* Credit to mcdermott
People say that in order to preserve the presumption of innocence in rape trials, accused rapists cannot (must not) bear the burden of proving that the sex between accused rapist and survivor was consensual.
This is (or should be) wrong.
So what is the presumption of innocence anyway? The presumption of innocence is a legal principle that guides the trier of fact (the judge or jury) when they weigh the evidence to arrive at a verdict. It tells the trier of fact that the accused is deemed innocent until the prosecution advances sufficient evidence to prove (beyond a reasonable doubt) that the accused committed the crime in question. In other words, the presumption of innocence challenges the prosecution to "prove it or lose it".
What the presumption of innocence does not require from the prosecution is evidence to refute an affirmative defence. For example, in order to preserve the presumption of innocence in a murder trial, we some jurisdictions* do not require the prosecution to proactively refute the claim that the accused was defending herself.
What does this have to do with rape? Well, conventional wisdom is as I described above. The prosecution must prove that sex did happen between the two specific people, and that the complainant did not consent. The way laws are set up, this is true. However, it need not be the case, and the fact that it is the case shows that we have some peculiar ideas when it comes to consent for sex.
I want you to think about theft and property law for a moment. You own things. The fact that you own them means that other people can't just take them without your permission. And we presume that, absent evidence to the contrary, you don't permit any random person to take off with your things. If someone takes something that belongs to you, the law does not require you to prove that you withheld permission. If the person who took your property wants to claim that you gave them permission--in other words, that you consented--that is on them. This does not violate the presumption of innocence, because the prosecution always has to prove that the person who took your property actually took your property.
For some reason, we don't see consent to sex in the same way. When we expect the prosecution in a rape case to prove a lack of consent, what we are saying is that the default position is one of consent. That strikes me as very weird and wrong. In order to keep things consistent, we should take the same approach to the right to sexual agency and bodily sovereignty as we do to the right to ownership and exclusionary control of property. We ought to presume that people default to a state of control and exclusion unless they give some indication to the contrary. This will not violate the presumption of innocence in rape cases, given that the prosecution will always need to prove that the accused had sex with the alleged survivor (and this is by no means trivial). I think going this way is better than applying rape-reasoning to theft cases, for what should be obvious reasons.
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* Credit to mcdermott
Grid System on
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But, Grid System, I just wanted to say that I am interested in your ideas and I wish to subscribe to your newsletter.
the "no true scotch man" fallacy.
Judicially, you have rape or not. But we aren't dealing with an actual judicial case here - should we open that can of worms and posit that a situation can be less aggressive/culpable/deplorable when looking at the person seen as the aggressor? And I am not talking about "But the dude was wasted as well!" or "But she sent out all the signals!", I think there are many factors involved. For example, if explicit consent was given before sex commenced, how consent was removed and how the aggressor responded when that happened. Was there exchange? What mindset did both people have about how sex should be instigated?
Your information regarding self-defence is duly noted, but I don't think anything really turns on it since it was just an example. Insanity is an affirmative defence in the stronger sense, if you prefer that as an example.
As for property being not identical to bodily integrity, I would agree. But, if we're going to look to the harm done by violation to guide our protection of a particular right, it seems to me that violating someone's right to exclude people from their person can have effects that are at least as bad as violating their right to keep their stuff.
Player-B accuses Player-A of raping Player-B.
Situation 1: Player-A has to prove that Player-B gave consent.
Situation 2: Player-A has to prove that Player-B did not withhold consent.
Situation 3: Player-B has to prove that Player-B witheld consent.
Situation 4: Player-B has to prove that Player-B denied consent.
Situation 1: Prove "Player-B said yes."
Stuation 2: Prove "Player-B didn't say no."
Situation 3: Prove "Player-B did not say yes."
Situation 4: Prove "Player-B said no."
If I understand your post correctly, you think the current situation is 3 or 4. You think the situation ought to be 1 or 2.
Is this correct?
Consent is of course a believable claim when it comes to a sexual offence. That being the case, why not have the person who would rely on it provide the support for it?
Pretty much.
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Alright, so we're trying to get:
Situation 1: Player-A has to prove that Player-B gave consent.
Situation 2: Player-A has to prove that Player-B did not withhold consent.
Situation 1: Prove "Player-B said yes."
Stuation 2: Prove "Player-B didn't say no."
Situation 2 assumes that the default position is consent, and Player-B would have needed to actively withold consent. This seems problematic.
So, in your ideal world, Player-A would have to prove that Player-B said yes. If Player-A cannot prove that Player-B said yes, then Player-A raped Player-B.
I can think of many cases in which persons engage in consensual sex without Players A or B proclaiming "yes". So, if an absense of the utterance "yes" prior to sex indicates rape, that seems problematic. We'd have to say that in some situations, consent is assumed. But then we're back in the same problem.
So, do you think that in every case of sex, both parties have to say "yes" in order to avoid rape? Or are there situations in which consent is assumed, and so one party would need to say "no" in order for rape to occur?
Edit: I'm thinking of the question of whether rape can occur in marriage. Those who say that rape can occur maintain that being married does not present a context in which the default position is consent. That's fine, but it seems to demand that persons always actively consent, and without an instance of active consent then rape has occurred.
Especially since the accuser is right there refuting them.
Not that either position is "proven" easily.
In practical legal terms, what do you mean by this? I don't think it's your intention to suggest that if the accused rapist can't prove it was consensual then it should be an auto-conviction.
This is the problem of proving consent.
"Presumption of innocence" means that the law assumes a person accused of that crime is innocent of that crime unless and until the prosecution proves each and every element of that crime. The standard of proof in a criminal case is "beyond a reasonable doubt."
An affirmative defense, in essence, is the defendant saying "Even if the prosecution proves its case against me, I should be excused, or my actions were justified, and therefore shoudl be acquitted."
Lack of consent is something that the prosecution generally has to prove in rape cases, because lack of consent is an element of the crime. Without it, you're essentially criminalizing sex, period. In the case of murder, you could have a statute requiring the prosecution to prove the killing 'was not in furtherance of self-defense', say, but usually it's an affirmative defense, where the accused has to prove EVEN IF they killed the other person deliberately etc., they did so in self-defense which justifies their actions. (Another example of an affirmative defense to murder is duress.)
I don't know which "people" are actually advocating making consent an affirmative defense. Perhaps what you're being confused about is the defense putting evidence to counter what the prosecution is trying to prove. That's not the same thing.
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Testimony is evidence. So is physical evidence. ("So, Doctor, your report says that this was consistent with consensual intercourse?") I'm not saying that you SHOULD be required to prove consent, mind you.
Rape-shield laws (at least in the US) do not ban evidence of sexual history. They do set out, in detail, when sexual history is or is not admissible and why.
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Ladies and Gentlemen the winner, by OP TKO in the 16th post Leitner!
Suppose that you have gardened for me for a month. I claim that you verbally agreed to do it for free, you claim that we instead verbally agreed on $300 a month. This case seems to be one in which it is most likely that you are telling the truth and that I am lying. People do not, by and large, labor for a month for free. But now change the number: say that you claim we verbally agreed on $30,000 a month. Now it is almost certain that you are lying. No one pays their gardner that much.
The person we would take to be lying, based merely on their testimony, has changed. But the ownership relationship has not changed; it is still I who own the house and you who garden. So I think the story has to be more complicated that the one you give, where owners are always presumptively truthful. Instead, when evaluating who is speaking truthfully, we have to test their behavior against some background set of social norms which govern how we expect people to behave and what would be normal in this range of social situations. What is problematic about rape cases is that the ones which are most vexed, and, unfortunately common, are ones in which there is a social practice of engaging in sex under such circumstances. I am thinking, in particular, of acquaintance and date rape. These are situations in which it would not be unreasonable or unintelligible for the person to have actually consented, in the same way it would be unreasonable or unintelligible to offer to work free for a stranger for a month, or to offer to pay $30,000 for a random gardener.
I think that analogies which more fully captures this dimension might be, for instance: a grandfather claims that his grandson has stolen his housekeys, whereas his grandson incredulously asserts that his grandfather gave him a pair while he was helping clean the basement; or a woman reports her car stolen, her friend is pulled over in that car while driving to the drug store, but her friend claims, incredulously, that the woman lent her the car explicitly so that she could pick up some drugs at the drug store. I think that in this sort of situation the testimony is actually quite fraught--I cannot see an easy way to determine, just on the basis of the stories I have given, who is telling the truth. Perhaps ultimately we will wind up giving deference to the parties who started with the car or money. But I think it is a good deal more complicated than a thief simply absconding with the silver.
I don't take any of this to directly tell on the proper legal response to rape cases. You may be right that it ought to change: I'm certainly receptive to that. However, I hope that considerations like the above can do justice to the sense that there really is at least some element of he-said/she-said in rape cases (or he-said/he-said; or she-said/she-said), even if it is less that we might initially have supposed, and that this partially explains some of the difficulty we have in navigating them.
Small but important correction:
To overcome a defense, the prosecution must prove beyond a reasonable doubt.
To establish a positive defense, the defense only has to show a preponderance of the evidence.
So here's what we're really talking about.
Current situation:
Alice accuses Bob of rape. Bob uses a consent defense. He does not have to establish anything. For the conviction to occur, Alice has to prove beyond a reasonable doubt that she did not give consent.
Proposed situation:
Alice accuses Bob of rape. Bob uses a consent defense. He first has to show a preponderance of the evidence that consent occurred. If he does, for the conviction to occur, Alice has to show a preponderance of the evidence that consent does not occur.
What this does not do is shift the burden of proof as it currently stands from the prosecution to the defense. It establishes a burden of proof on the defense that is weaker than the current burden of proof currently on the prosecution.
The basic issue here is that proving a negative is difficult enough, proving a negative beyond a reasonable doubt is virtually impossible. We have put rape victims in a position where they have to do something nearly epistemologically impossible to obtain a conviction.
the "no true scotch man" fallacy.
Player-B accuses Player-A of raping Player-B.
I'm trying to figure out if "presumption of innocence" in this case means.
1) We assume that Player-A didn't rape Player-B.
2) We assume that Player-B consented.
For some reason it seems like those two ought to be different...oh, here it is.
Situation 1: We assume that no sex occurred.
Situation 2: We assume that sex occurred.
So, in these cases, do we think that one side has to prove that sex occurred?
I'm sympathetic to that fact, but unless I'm misunderstanding the issue, then I'm still waiting to hear what someone could reasonably do to defend against such an accusation in any material way. I imagine the defense would rarely have the luxury of calling witnesses to testify to consent.
Your proposed situation disagrees with your conclusion.
It goes from
Prosecution must prove beyond a reasonable doubt, to Either prosecution or defense must show a preponderance of evidence. How is that not shifting the burden?
Also, it does very little to improve the situation legally. As there isn't any rational way to create a preponderance from 2 disagreeing witnesses, beyond 'who does the jury believe more'.
It seems like in these cases, the testimony of most "witnesses" would be dismissed as hearsay.
"Bro told me she totally said 'yes'."
Leitner states it well. I had to go on jury for a rape case and this was basically what they said needed to be determined. The case was his word her word with alot of history, alcohol, and misunderstanding involved and was basically surprise sex and noone felt violated until she realized he came inside, she has a boyfriend, and she would be called a slut in the circle. Alot of the jurors wanted to find him guilty because the case was so awful they felt something had to come out of it/they felt guilty if he went free. 1 juror in particular said he was guilty because he was a man. We were a hung jury in the end. It was awful and everyone agree that they both needed to be put in counseling. They were going to settle for felony jail time for 1 and sex offender registry instead. our legal system scares the shit out of me. Sorry if that got off topic.
I'm assuming here that you are talking about a criminal case, and not something informal like "My buddy Bob is claiming Alice raped him and I'm trying to decide who to believe." In that case.
In the US, the "sides" in a criminal case are the prosecution, i.e. the government, and the defendant, in this case Player-A. (Player-B is not the prosecutor.) The prosecution has the burden of proving beyond a reasonable doubt (under our very simplified definition)
1) that A and B had sex, AND
2) that B did not consent to having sex with A.
If the prosecution can't prove either of these things then A is not guilty. [Edited for clarity: to convict A, the prosecution must prove BOTH, although obviously they're gonna have to get to 1) to get to 2).] If consent was an affirmative defense, then the prosecution would only have to prove 1), which would essentially make the law take the default position that sex is nonconsensual.
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Witnesses immediately before and after the sexual incident occurred and communications between the accuser and the accused are the easiest ways. All it takes is a text message or voice mail that sounds kind of flirty to establish that there was enough sexual interest there, just as one off the cuff example.
the "no true scotch man" fallacy.
Yup.
I'd be interested if anyone can formulate a different system that isn't incredibly problematic.
Right.
As I understood it, the OP took this situation to be indicating that the default position with regard to sex is "consent", rather than "not-consent". My point was that it isn't the case that the current situation assumes consent.
The current system doesn't assume anything.
One has to prove both that sex happened and that one party did not consent to the sex.
The really problematic issue is not "lack of consent is hard to prove" - it's that people throw in all this myths about what consent is and what rape "really" is and so on that prevent it from being a neutral exercise. For example, the cultural assumption that rape is something done by 'bad people', strangers who jump out of the bushes, so jurors assume the fact of an existing social connection by itself disproves rape.
Testimony, again, is evidence, and jurors can weigh that evidence; testimony that is credible, consistent, and jibes with other facts is more believable than testimony that isn't.
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