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.
I think the OP may have been trying to say that by requiring lack of consent to show a crime, that the law is taking the position that "if you had sex, you consented to it", which is mixing up social attitudes about sex with the necessity of proving someone guilty of a crime. I don't know how you'd write a sexual assault statute that made consent an affirmative defense without actually criminalizing consensual sex.
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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.
Correction: the burden is on the prosecution, not the victim. Not trying to nitpick, but placing a burden on "the victim" creates some emotional response, when it reality it is the state's interest that we're discussing here.
You're technically correct here - however because rape cases do end up focusing on the consent issue, the victim almost certainly has to take the stand, and no such case can be found on the forensic evidence alone. So what actually happens is the trial focuses on what the victim did and how the victim behaved.
Even situations where the forensic evidence clearly demonstrates that the accuser could not have given consent due to age or intoxication, trials still sometimes end up focusing on the behavior of the accuser out of an effort to show that the accused would have reasonably believed that consent was given. Take a look at the Cleveland, TX 2010 gang rape case as an example.
We effectively put the victim on trial. I'd like to say that we do this out of simple misogyny and that a more enlightened population would prevent this from happening, but that's not entirely truthful. It's a systemic problem, baked in to the way we handle proof in sexual assault cases.
every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
I'd like to say that we do this out of simple misogyny and that a more enlightened population would prevent this from happening, but that's not entirely truthful. It's a systemic problem, baked in to the way we handle proof in sexual assault cases.
This is an important point. The way rape cases work isn't necessarily indicative of misogyny. It's indicative of how legal proof works.
Even situations where the forensic evidence clearly demonstrates that the accuser could not have given consent due to age or intoxication, trials still sometimes end up focusing on the behavior of the accuser out of an effort to show that the accused would have reasonably believed that consent was given. Take a look at the Cleveland, TX 2010 gang rape case as an example.
I fail to see how forensic evidence comes into lack of consent due to age. That seems like a pretty simple definition thing (at which point the only burden is on the prosecutor to prove the sex happened).
We effectively put the victim on trial. I'd like to say that we do this out of simple misogyny and that a more enlightened population would prevent this from happening, but that's not entirely truthful. It's a systemic problem, baked in to the way we handle proof in sexual assault cases.
No, it's baked into the way we handle proof in any crime. Like I said, as it stands it should be nearly impossible to convict for rape. And thus far neither you nor anybody else has really put forward an alternative that isn't worse.
Though I suppose "worse" is subjective. But I think most reasonable people would consider an (effective) presumption of guilt to be worse.
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.
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.
So if nobody saw you after you fucked (because, for instance, you'd already left the party/bar/etc), and she didn't text you or call you immediately after you fucked (because that doesn't always happen), you're...fucked?
Again, you're placing a lot of documentation burden on the accused here.
It does mean that if you regularly have sex with strangers without any prior nonverbal communication or integration of social circles, you would be at elevated risk of a false accusation.
The alternative is that women are at elevated risk of sexual assault all the time, regardless of how they behave.
every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
That we even give enough of a shit to try and prove a crime that is, in most cases, unprovable is probably evidence against misogyny. That any rape case that isn't straight stranger-out-of-the-bushes ever makes it to the inside of a courtroom shows that we're already placing a desire for justice for the (alleged) victim over the presumption of innocence. Since the burden is nearly impossible to meet.
Even situations where the forensic evidence clearly demonstrates that the accuser could not have given consent due to age or intoxication, trials still sometimes end up focusing on the behavior of the accuser out of an effort to show that the accused would have reasonably believed that consent was given. Take a look at the Cleveland, TX 2010 gang rape case as an example.
I fail to see how forensic evidence comes into lack of consent due to age. That seems like a pretty simple definition thing (at which point the only burden is on the prosecutor to prove the sex happened).
Yeah, that was a bad way of phrasing it, but I think I got my point across.
every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
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.
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.
So if nobody saw you after you fucked (because, for instance, you'd already left the party/bar/etc), and she didn't text you or call you immediately after you fucked (because that doesn't always happen), you're...fucked?
Again, you're placing a lot of documentation burden on the accused here.
It does mean that if you regularly have sex with strangers without any prior nonverbal communication or integration of social circles, you would be at elevated risk of a false accusation.
No, you'd be at an elevated risk regardless of integration of social circles.
Also, by "nonverbal" I assume you mean "documentable."
The alternative is that women are at elevated risk of sexual assault all the time, regardless of how they behave.
Yup. Also, by "the alternative" you are referring to the status quo, correct?
Yeah, that was a bad way of phrasing it, but I think I got my point across.
You did, yes. That was probably an unnecessary nitpick.
You're technically correct here - however because rape cases do end up focusing on the consent issue, the victim almost certainly has to take the stand, and no such case can be found on the forensic evidence alone. So what actually happens is the trial focuses on what the victim did and how the victim behaved.
Even situations where the forensic evidence clearly demonstrates that the accuser could not have given consent due to age or intoxication, trials still sometimes end up focusing on the behavior of the accuser out of an effort to show that the accused would have reasonably believed that consent was given. Take a look at the Cleveland, TX 2010 gang rape case as an example.
We effectively put the victim on trial. I'd like to say that we do this out of simple misogyny and that a more enlightened population would prevent this from happening, but that's not entirely truthful. It's a systemic problem, baked in to the way we handle proof in sexual assault cases.
In cases where the accuser was too young to give consent, then it's a different crime - statutory rape - and consent is not an issue that the prosecution needs to prove, nor something the defense can raise. (The Cleveland, Texas case has not yet gone to trial.) "Rape shield" laws also explicitly limit when evidence of the accuser's sexual history or other sexual activity is relevant and admissible, and when it isn't.
We put the victim on trial because of misogyny and defensive attribution.
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No, it's baked into the way we handle proof in any crime. Like I said, as it stands it should be nearly impossible to convict for rape. And thus far neither you nor anybody else has really put forward an alternative that isn't worse.
Though I suppose "worse" is subjective. But I think most reasonable people would consider an (effective) presumption of guilt to be worse.
We don't even need to go into shoulds and worses.
We have a legal system that operates as it does. We don't need to argue that the legal system needs to be the way it is; it already is the way it is.
If persons want it to change, then they can offer a different system. We can then assess the proposed system with respect to practical difficulties.
So, does anyone have a better idea for how rape cases ought to work?
As it is, it is nearly impossible (or straight-up impossible) to prove rape, particularly between people with an existing social connection, absent some pretty significant other factors (such as admission by the accused, or perhaps evidence of excessive physical violence). The hard part is that I'd go ahead and suggest that this is as it should be. Not "should" as in I think this is a good thing. But "should" in that due to the nature of the crime and due to the nature of any legitimate criminal justice system, this is the only possible outcome.
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.
More believable is (basically) a preponderance of evidence argument. As long as the defense has a reasonable story, that one is more credible than the other doesn't really matter. Its not "who do you believe most?", its reasonable doubt.
Consent is a fundamentally messy concept, as in applicable cases we define it as the thoughts of a single person. Or just see all the standard co-rape arguments. Are 2 15 year old both raping each other, since neither can consent? Or 2 drunk people? Or a drunk person and a 15 year old? Does reaching down someones pants imply you consented for them to reach down yours?
FYI, as to present law: the affirmative defense argument relies on the defendant agreeing with the state's account of the objective facts of the act and arguing that the victim's actions were reasonably construed as consent (however defined by prevailing legal standards). Here the burden of proof is on the defense, but (1) the standard of evidence is much lower, and (2) the 'proof' is primarily about what should be considered reasonable rather than what happened.
When the defendant disagrees with the state's account, then the burden of proof shifts back to the state and the state has to prove its narrative beyond all reasonable doubt.
This is a rapidly evolving legal standard, particularly over the past century, and women's rights advocates tend to alternately suggest changing the standard of what may be construed as reasonable (or what evidence may be entered at this point), or removing consent as an affirmative defense altogether. Note that this latter change still says nothing about the case where the defendant disagrees with the state's account of the facts; it only means that the alleged victim's claimed state of mind becomes relevant.
The OP's attempt to analogize to property is a little unfortunate since legal standards there are honestly not more consistent nor obvious.
Multiple posters have explained why this is not the case.
No. "Requiring the prosecution to prove their case" != "putting the victim on trial". There is a difference between expecting the prosecution to prove, beyond a reasonable doubt, that there was a lack of consent, and the expectation that the prosecution will prove extraneous things not required by law otherwise the accuser was 'asking for it' or 'it wasn't RAPE rape'. I am referring to the latter, not the former.
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women's rights advocates tend to alternately suggest changing the standard of what may be construed as reasonable (or what evidence may be entered at this point), or removing consent as an affirmative defense altogether.
Do you happen to know what suggestions have been made for what ought to count as "reasonable"?
More believable is (basically) a preponderance of evidence argument. As long as the defense has a reasonable story, that one is more credible than the other doesn't really matter. Its not "who do you believe most?", its reasonable doubt.
Consent is a fundamentally messy concept, as in applicable cases we define it as the thoughts of a single person. Or just see all the standard co-rape arguments. Are 2 15 year old both raping each other, since neither can consent? Or 2 drunk people? Or a drunk person and a 15 year old? Does reaching down someones pants imply you consented for them to reach down yours?
"Preponderance of evidence" is a standard of proof, not an argument. (It's generally the standard of proof in a civil case.) I'm not following your argument that the prosecution's case doesn't count as long as the defense has a "reasonable story", or that as long as the story is "reasonable" then it doesn't matter if the story is backed up by really shifty evidence and the prosecution's case is rock-solid.
The reason we define consent as 'the thoughts of a single person' is that we are talking, in the criminal context, of a person accused of committing a crime. If A and B were both too drunk to consent to sex, then maybe you could, if you were a very bored prosecutor, separately charge both of them with rape - you'd lose, of course, because A and B would figure out very quickly that whatever evidence proved "I was raped" also proved "I raped the other person". Reaching down someone's pants could, obviously, be evidence that when you reached down their pants, you did so with their consent. (Evidence != proof. It's just evidence.) Whether two 15-year-olds can rape each other depends on what the law in a particular state is about juvenile crimes and so forth.
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This thread was closed due to a misunderstanding, and it is once again open for business. Be excellent to each other r you will be shot in the face with a bee cannon.
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There is a tremendous difference between theft or murder and rape. People do not typically just give possessions that they've owned away;
Counterpoint: People just give their possessions away all the time.
People give gifts to other people; they do not tend to give away things like the XBox and television in their living room, or the bike that they ride to work.
people do not typically ask other people to kill them, or beat them up, or do any number of other things. People ask or grant permission for other people to have sex with them all the fucking time. This puts it in a fairly unique position as far most crimes go, in that consent is a completely viable and believable defense, versus something like murder or assault.
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?
Because people are lying assholes, especially when it comes to relationships. If you can get someone convicted of rape based on merely the fact that they had sex with you, that is going to be a fucking problem.
And I'm not saying the opposite isn't a problem (because it is), and I'm not saying that the way we treat rape prosecutions in this country isn't a problem (because it is), but I don't think the solution is "assume anyone accused of rape is guilty until proven otherwise."
"Consent" isn't like insanity, where it's a mitigating factor to someone who has already admitted to having committed a crime; consent is, specifically, an element of rape. And yeah, sure, it's an element of other crimes, as well, but if someone's television and XBox in their living room end up on the back of your truck, you've never met them before, and they called the police to report a robbery after it happened, "they gave it to me" isn't going to be particularly believable. But there are absolutely theft cases where people claim "I didn't steal it, it was given to me," and I'm sure some of them are successful. However, due to the nature of consent when it comes to rape, it tends to only happen when two people are alone, so it tends to be a "he-said-she-said" type of situation, and one where, due to the emotions involved, it's really, really difficult to say who is or isn't telling the truth.
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
Not weighing in on your proposition, I just want to clarify your analogy. While in theft cases, consent to take something is an affirmative defense, the prosecution must still prove that the defendant intended to take the property with the state of mind to permanently deny the he rightful owner possession of the property. With a rape case, unless we adopt a strict liability standard (I.e. one that does not require the prosecutor to prove intent) then the prosecutor must show that the defendant intended to commit the crime. The easiest way to do that is to show that the victim withheld consent. Thats often why the prosecution will attempt to show lack of consent, they need to prove the defendants intent to rape. If the defendant had stated after the fact to a witness that he intended to rape the victim, consent would not be an issue and the prosecution would not have to prove it.
So your analogy isn't quite right because consent is an affirmative defense in both cases and inten must be proven in both cases. Just in practice, the prosecution will use lack of consent to prove intent in rapes. Obviously this can change based on the way the law is written.
I don't think "consent" is an affirmative defense in a theft case, though I could be wrong; it's just that, in general, it's pretty trivial to prove.
Any of the attorneys want to weigh in on this?
As not an attorney my opinion is way more valid so:
I think "consent" is an affirmative defense in a theft case. Or can be. If we're total strangers it's a tough sell obviously, but if you're my room mate and I take off with your car to Vegas, I may claim I had permission to borrow it. I believe that would be an affirmative defense.
I don't think "consent" is an affirmative defense in a theft case, though I could be wrong; it's just that, in general, it's pretty trivial to prove.
Any of the attorneys want to weigh in on this?
Consent is an affirmative defense as it disproves the requisite intent to deprive the victim of thier property permantantly, which is usually a necessary element of the crime of theft.
An affirmative defense doesnt have to be very technical, usually it involves admitting to some facts, such as I took the thing, but rejects an important element to prove ultimate guilt.
This is why consent is a defense to rape, the Defendant says yes I had some form of consensual sexual activity with the victim, but because it was consensual, I cannot be convicted of rape as the sex wasn't through force or threat of force ( which is how rape is traditionally defined).
I don't think "consent" is an affirmative defense in a theft case, though I could be wrong; it's just that, in general, it's pretty trivial to prove.
Any of the attorneys want to weigh in on this?
Consent is an affirmative defense as it disproves the requisite intent to deprive the victim of thier property permantantly, which is usually a necessary element of the crime of theft.
An affirmative defense doesnt have to be very technical, usually it involves admiring to some facts, such as I took the thing, but rejects an important element to prove ultimate guilt.
This is why consent is a defense to rape, the Defendant says yes I had some form of consensual sexual activity with the victim, but because it was consensual, I cannot be convicted of rape as the sex wasn't die through force or threat of force ( which is how rape is traditionally defined).
Also, I am an attorney.
This is from mock trial, so I could be shooting out of left field, but I was under the impression that an "affirmative defense" placed the burden of proof on the defendant. i.e. if I go with an insanity plea, I have to prove that I was insane at the time of the crime. Whereas, if it's not an affirmative defense, I merely have to show that there's reasonable doubt that I'm not insane. So, the prosecution in a theft case has to prove beyond a reasonable doubt that my roommate didn't allow me to borrow hi car to take to Vegas for the weekend, doesn't he?
See, I thought 'affirmative defense' was basically the "Yes, I took his car, but he said I could." argument - the underlined portion specifically. You're affirming the act was comitted, but you're arguming circumstances. At that point the burden of proof does shift to the defendant.
Insanity plea is essential "Yes I did it, but I am not culpable for the actions." - same thing.
As I mentioned before regarding self defense, affirmative defenses do not always shift burden of proof to the accused. It varies depending on offense, defense, and jurisdiction.
See, I thought 'affirmative defense' was basically the "Yes, I took his car, but he said I could." argument - the underlined portion specifically. You're affirming the act was comitted, but you're arguming circumstances. At that point the burden of proof does shift to the defendant.
Insanity plea is essential "Yes I did it, but I am not culpable for the actions." - same thing.
The implication of Smaug6's post is that it does not, in fact, shift the burden to the defense.
Just a note, cases where people argue about ownership happen all the time. (think a couple splitting up disagreeing on ownership of a tv.) they just never go to trial because they would never get a conviction.
I don't think "consent" is an affirmative defense in a theft case, though I could be wrong; it's just that, in general, it's pretty trivial to prove.
Any of the attorneys want to weigh in on this?
Consent is an affirmative defense as it disproves the requisite intent to deprive the victim of thier property permantantly, which is usually a necessary element of the crime of theft.
An affirmative defense doesnt have to be very technical, usually it involves admiring to some facts, such as I took the thing, but rejects an important element to prove ultimate guilt.
This is why consent is a defense to rape, the Defendant says yes I had some form of consensual sexual activity with the victim, but because it was consensual, I cannot be convicted of rape as the sex wasn't die through force or threat of force ( which is how rape is traditionally defined).
Also, I am an attorney.
This is from mock trial, so I could be shooting out of left field, but I was under the impression that an "affirmative defense" placed the burden of proof on the defendant. i.e. if I go with an insanity plea, I have to prove that I was insane at the time of the crime. Whereas, if it's not an affirmative defense, I merely have to show that there's reasonable doubt that I'm not insane. So, the prosecution in a theft case has to prove beyond a reasonable doubt that my roommate didn't allow me to borrow hi car to take to Vegas for the weekend, doesn't he?
Am I totally off-base, here?
So an affirmative defense require that you
Produce evidence to support your claim and generally it does not go to an element of the crime. So for example, I a crime required you to be drunk and have committed an act, a regular defense could be that you weren't drunk or you didn't commit the act. In that case the prosecutor has the burden of producing evidence to convince reasonable people that you satisfied both those elements beyond a reasonable doubt. An affirmative defense would be something that excuses your conduct, such that you are not guilty of the crime. So of the prosecutor proved the two elements beyond a reasonable doubt but you said I wa required by another law to commit that act and be drunk, you would have to produce evidence to the jury to show that was true. This with an affirmative defense you aren't arguing that the prosecutor can't prove his claim, but that other circumstances negate your culpability for the crime. It all depends on how he law is written. Likely in a rape case, consent is an affirmative defense because you are saying you had permission to have sexual conduct, not that you didnt have sexual conduct with another person. However, it depends on how the law is written. If lack of consent is an element of the crime, which it is in some jurisdictions, then arguing you had consent would not be an affirmative defense, just a refukar defense Does this make sense?
Paraphrasing for Smaug: in basically all of criminal law, that the offender knows what he is doing is wrong is an equally important element of the crime as the fact that offender's actions, and thus the prosecutor must demonstrate this element when trying to establish guilt. Consider the difference between a motorist who accidentally hits a pedestrian and another motorist who purposefully runs over his next door neighbor after a dispute. The fact of the action in both cases is the same -- one guy hit another guy with his car -- but the absence or presence of intent is the critical difference which makes the first incident an accident but the second incident a crime.**
Because this element is so important in establishing guilt, it's not automatically the case that an affirmative defense will relieve the prosecutor of his burden to demonstrate mens rea when seeking a conviction, unless the affirmative defense also establishes mens rea. (For instance, in a homicide/manslaughter case where the defendant claims self defense, the prosecutor generally doesn't need to sweat too much in proving that the defendant purposefully shot the other person with the intent to seriously wound or kill him since that fact would be stipulated by the defense).
**The question of mens rea is obviously more complicated than this binary example because you can also get into questions of criminal negligence and criminal recklessness, which are different from intent, but the example ought to explain sufficiently why it's the prosecutor's burden.
There are jurisdictions where lack of consent isn't an element of rape? Wouldn't that make rape... just having sex? Isn't that, like, the entire difference between sex and rape?
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I think Smaug may be referring to jurisdictions which don't specify consent per se but instead specify forcible compulsion accomplished against the victim's will with violence, threat, intimidation or coercion.
I don't know how many jurisdictions define rape without using the word consent. I do know that Virginia is one of them, however. It's an important distinction because it means that if you threaten, intimidate or otherwise forcibly coerce someone into consenting to sexual intercourse, it's still rape.
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Isn't the whole point of statutory rape that minors are inherently not competent to consent?
It's a combination of both that and moralizing. If we truly believed that minors were not competent, we would make no exception in the form of Romeo & Juliet laws.
Depends on the jurisdiction, but for the most part in theft cases an element is an unauthorized taking, so no, consent is not an affirmative defense, and the prosecution has to prove that the victim did not authorize the accused to take the item in question.
It's usually not hard to prove this because, well, no, I didn't give that guy my wallet, are you stupid?
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I think the OP may have been trying to say that by requiring lack of consent to show a crime, that the law is taking the position that "if you had sex, you consented to it", which is mixing up social attitudes about sex with the necessity of proving someone guilty of a crime. I don't know how you'd write a sexual assault statute that made consent an affirmative defense without actually criminalizing consensual sex.
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You're technically correct here - however because rape cases do end up focusing on the consent issue, the victim almost certainly has to take the stand, and no such case can be found on the forensic evidence alone. So what actually happens is the trial focuses on what the victim did and how the victim behaved.
Even situations where the forensic evidence clearly demonstrates that the accuser could not have given consent due to age or intoxication, trials still sometimes end up focusing on the behavior of the accuser out of an effort to show that the accused would have reasonably believed that consent was given. Take a look at the Cleveland, TX 2010 gang rape case as an example.
We effectively put the victim on trial. I'd like to say that we do this out of simple misogyny and that a more enlightened population would prevent this from happening, but that's not entirely truthful. It's a systemic problem, baked in to the way we handle proof in sexual assault cases.
the "no true scotch man" fallacy.
This is an important point. The way rape cases work isn't necessarily indicative of misogyny. It's indicative of how legal proof works.
I fail to see how forensic evidence comes into lack of consent due to age. That seems like a pretty simple definition thing (at which point the only burden is on the prosecutor to prove the sex happened).
No, it's baked into the way we handle proof in any crime. Like I said, as it stands it should be nearly impossible to convict for rape. And thus far neither you nor anybody else has really put forward an alternative that isn't worse.
Though I suppose "worse" is subjective. But I think most reasonable people would consider an (effective) presumption of guilt to be worse.
It does mean that if you regularly have sex with strangers without any prior nonverbal communication or integration of social circles, you would be at elevated risk of a false accusation.
The alternative is that women are at elevated risk of sexual assault all the time, regardless of how they behave.
the "no true scotch man" fallacy.
Yeah, that was a bad way of phrasing it, but I think I got my point across.
the "no true scotch man" fallacy.
No, you'd be at an elevated risk regardless of integration of social circles.
Also, by "nonverbal" I assume you mean "documentable."
Yup. Also, by "the alternative" you are referring to the status quo, correct?
You did, yes. That was probably an unnecessary nitpick.
In cases where the accuser was too young to give consent, then it's a different crime - statutory rape - and consent is not an issue that the prosecution needs to prove, nor something the defense can raise. (The Cleveland, Texas case has not yet gone to trial.) "Rape shield" laws also explicitly limit when evidence of the accuser's sexual history or other sexual activity is relevant and admissible, and when it isn't.
We put the victim on trial because of misogyny and defensive attribution.
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We don't even need to go into shoulds and worses.
We have a legal system that operates as it does. We don't need to argue that the legal system needs to be the way it is; it already is the way it is.
If persons want it to change, then they can offer a different system. We can then assess the proposed system with respect to practical difficulties.
So, does anyone have a better idea for how rape cases ought to work?
the "no true scotch man" fallacy.
More believable is (basically) a preponderance of evidence argument. As long as the defense has a reasonable story, that one is more credible than the other doesn't really matter. Its not "who do you believe most?", its reasonable doubt.
Consent is a fundamentally messy concept, as in applicable cases we define it as the thoughts of a single person. Or just see all the standard co-rape arguments. Are 2 15 year old both raping each other, since neither can consent? Or 2 drunk people? Or a drunk person and a 15 year old? Does reaching down someones pants imply you consented for them to reach down yours?
Multiple posters have explained why this is not the case.
When the defendant disagrees with the state's account, then the burden of proof shifts back to the state and the state has to prove its narrative beyond all reasonable doubt.
This is a rapidly evolving legal standard, particularly over the past century, and women's rights advocates tend to alternately suggest changing the standard of what may be construed as reasonable (or what evidence may be entered at this point), or removing consent as an affirmative defense altogether. Note that this latter change still says nothing about the case where the defendant disagrees with the state's account of the facts; it only means that the alleged victim's claimed state of mind becomes relevant.
The OP's attempt to analogize to property is a little unfortunate since legal standards there are honestly not more consistent nor obvious.
No. "Requiring the prosecution to prove their case" != "putting the victim on trial". There is a difference between expecting the prosecution to prove, beyond a reasonable doubt, that there was a lack of consent, and the expectation that the prosecution will prove extraneous things not required by law otherwise the accuser was 'asking for it' or 'it wasn't RAPE rape'. I am referring to the latter, not the former.
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Do you happen to know what suggestions have been made for what ought to count as "reasonable"?
"Preponderance of evidence" is a standard of proof, not an argument. (It's generally the standard of proof in a civil case.) I'm not following your argument that the prosecution's case doesn't count as long as the defense has a "reasonable story", or that as long as the story is "reasonable" then it doesn't matter if the story is backed up by really shifty evidence and the prosecution's case is rock-solid.
The reason we define consent as 'the thoughts of a single person' is that we are talking, in the criminal context, of a person accused of committing a crime. If A and B were both too drunk to consent to sex, then maybe you could, if you were a very bored prosecutor, separately charge both of them with rape - you'd lose, of course, because A and B would figure out very quickly that whatever evidence proved "I was raped" also proved "I raped the other person". Reaching down someone's pants could, obviously, be evidence that when you reached down their pants, you did so with their consent. (Evidence != proof. It's just evidence.) Whether two 15-year-olds can rape each other depends on what the law in a particular state is about juvenile crimes and so forth.
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Because people are lying assholes, especially when it comes to relationships. If you can get someone convicted of rape based on merely the fact that they had sex with you, that is going to be a fucking problem.
And I'm not saying the opposite isn't a problem (because it is), and I'm not saying that the way we treat rape prosecutions in this country isn't a problem (because it is), but I don't think the solution is "assume anyone accused of rape is guilty until proven otherwise."
"Consent" isn't like insanity, where it's a mitigating factor to someone who has already admitted to having committed a crime; consent is, specifically, an element of rape. And yeah, sure, it's an element of other crimes, as well, but if someone's television and XBox in their living room end up on the back of your truck, you've never met them before, and they called the police to report a robbery after it happened, "they gave it to me" isn't going to be particularly believable. But there are absolutely theft cases where people claim "I didn't steal it, it was given to me," and I'm sure some of them are successful. However, due to the nature of consent when it comes to rape, it tends to only happen when two people are alone, so it tends to be a "he-said-she-said" type of situation, and one where, due to the emotions involved, it's really, really difficult to say who is or isn't telling the truth.
Not weighing in on your proposition, I just want to clarify your analogy. While in theft cases, consent to take something is an affirmative defense, the prosecution must still prove that the defendant intended to take the property with the state of mind to permanently deny the he rightful owner possession of the property. With a rape case, unless we adopt a strict liability standard (I.e. one that does not require the prosecutor to prove intent) then the prosecutor must show that the defendant intended to commit the crime. The easiest way to do that is to show that the victim withheld consent. Thats often why the prosecution will attempt to show lack of consent, they need to prove the defendants intent to rape. If the defendant had stated after the fact to a witness that he intended to rape the victim, consent would not be an issue and the prosecution would not have to prove it.
So your analogy isn't quite right because consent is an affirmative defense in both cases and inten must be proven in both cases. Just in practice, the prosecution will use lack of consent to prove intent in rapes. Obviously this can change based on the way the law is written.
Any of the attorneys want to weigh in on this?
As not an attorney my opinion is way more valid so:
I think "consent" is an affirmative defense in a theft case. Or can be. If we're total strangers it's a tough sell obviously, but if you're my room mate and I take off with your car to Vegas, I may claim I had permission to borrow it. I believe that would be an affirmative defense.
--LeVar Burton
Consent is an affirmative defense as it disproves the requisite intent to deprive the victim of thier property permantantly, which is usually a necessary element of the crime of theft.
An affirmative defense doesnt have to be very technical, usually it involves admitting to some facts, such as I took the thing, but rejects an important element to prove ultimate guilt.
This is why consent is a defense to rape, the Defendant says yes I had some form of consensual sexual activity with the victim, but because it was consensual, I cannot be convicted of rape as the sex wasn't through force or threat of force ( which is how rape is traditionally defined).
Also, I am an attorney.
Am I totally off-base, here?
Insanity plea is essential "Yes I did it, but I am not culpable for the actions." - same thing.
Produce evidence to support your claim and generally it does not go to an element of the crime. So for example, I a crime required you to be drunk and have committed an act, a regular defense could be that you weren't drunk or you didn't commit the act. In that case the prosecutor has the burden of producing evidence to convince reasonable people that you satisfied both those elements beyond a reasonable doubt. An affirmative defense would be something that excuses your conduct, such that you are not guilty of the crime. So of the prosecutor proved the two elements beyond a reasonable doubt but you said I wa required by another law to commit that act and be drunk, you would have to produce evidence to the jury to show that was true. This with an affirmative defense you aren't arguing that the prosecutor can't prove his claim, but that other circumstances negate your culpability for the crime. It all depends on how he law is written. Likely in a rape case, consent is an affirmative defense because you are saying you had permission to have sexual conduct, not that you didnt have sexual conduct with another person. However, it depends on how the law is written. If lack of consent is an element of the crime, which it is in some jurisdictions, then arguing you had consent would not be an affirmative defense, just a refukar defense Does this make sense?
Because this element is so important in establishing guilt, it's not automatically the case that an affirmative defense will relieve the prosecutor of his burden to demonstrate mens rea when seeking a conviction, unless the affirmative defense also establishes mens rea. (For instance, in a homicide/manslaughter case where the defendant claims self defense, the prosecutor generally doesn't need to sweat too much in proving that the defendant purposefully shot the other person with the intent to seriously wound or kill him since that fact would be stipulated by the defense).
**The question of mens rea is obviously more complicated than this binary example because you can also get into questions of criminal negligence and criminal recklessness, which are different from intent, but the example ought to explain sufficiently why it's the prosecutor's burden.
There are jurisdictions where lack of consent isn't an element of rape? Wouldn't that make rape... just having sex? Isn't that, like, the entire difference between sex and rape?
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.
Yup. Statutory rape is almost always strict liability. All the state has to prove is that the act occured, no mens rea required.
I don't know how many jurisdictions define rape without using the word consent. I do know that Virginia is one of them, however. It's an important distinction because it means that if you threaten, intimidate or otherwise forcibly coerce someone into consenting to sexual intercourse, it's still rape.
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.
It's a combination of both that and moralizing. If we truly believed that minors were not competent, we would make no exception in the form of Romeo & Juliet laws.
It's usually not hard to prove this because, well, no, I didn't give that guy my wallet, are you stupid?