Eyewitness testimony by an alleged victim that an alleged criminal has committed a crime against them is generally considered pretty solid evidence. Drop the rape thing for a minute and think about other crimes - because surely the crime of rape should be held to the same standard as everything else. If somebody walks into a police station and says, "I was mugged, and that guy did it!", that's easily enough for an arrest, and quite possibly enough for a conviction. The defense attorney can try to give reason to doubt this testimony by questioning the accuser's motives or producing further evidence that contradicts their story. But if he doesn't, if that evidence stands unopposed, then come on, of course a jury is going to conclude that the guy is guilty.
I happen to think victim testimony is a terrible standard.
Honestly, if the only evidence of a crime is "That guy did X", and that alone is enough to convict, this is not a virtue at all. This to me would be the lowest form of justice.
I'm certainly not in favor of lowering the bar especially for evidence in rape cases. But nobody here has actually advocated for that. When they do, I'll argue against them. But for right now, all I see here is people trying to raise the bar. In arguing that the testimony of alleged rape victims is just a "he said, she said" situation and not sufficient evidence for anything, you are saying that this testimony is intrinsically less trustworthy than eyewitness testimony for other crimes. Yes, people do lie. But the system already has a safeguard for that; it's the right for the defense to cross-examine the witness. And yes, there is a presumption of innocence. But it's a presumption of innocence prior to the evidence, not a presumption of innocence in spite of the evidence. If the evidence points to the accused committing the crime beyond a reasonable doubt - the way direct eyewitness testimony tends to do - then the jury is not supposed to presume them innocent regardless.
The Bar should be as high as humanly and technologically possible.
Then, the punishment should be extreme, and swift.
And, on a more personal note, if you're really worried about being burned by a false rape accusation... what kind of people are you sleeping with, and why are you sleeping with them?
The subjects of a false rape allegation (and notably, any false crime allegation) are often socially and financially ruined before any trial even concludes.
Are you now victim blaming? Isn't this something we get beat over our heads everywhere especially by the media?
It's not the rape victims fault. Dressing provocatively, or going out to a party, etc., is not an invitation to get raped.
Well the subject of a false rape allegation is a victim too.
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I happen to think victim testimony is a terrible standard.
Honestly, if the only evidence of a crime is "That guy did X", and that alone is enough to convict, this is not a virtue at all. This to me would be the lowest form of justice.
If it stands up to the scrutiny of cross-examination? It's fine. It has to be fine. If it isn't fine, what could be?
The Bar should be as high as humanly and technologically possible.
Well, that's simple. Just abolish the criminal justice system entirely.
Assuming we actually want to do some law enforcement, we're going to have to set the bar a bit lower than that. I certainly agree with you in the ideal that it is better to let a guilty person go free than punish an innocent. But if we punish anyone, there is always the possibility, however slight, that we will punish an innocent on occasion. A high-minded pronouncement about where to set the bar has to interface with reality somehow.
Are you now victim blaming? Isn't this something we get beat over our heads everywhere especially by the media?
It's not the rape victims fault. Dressing provocatively, or going out to a party, etc., is not an invitation to get raped.
Hey, I'm not blaming the victim. I'm just providing advice that is useful, fair, and gender neutral: don't sleep with somebody you don't trust not to destroy your future.
I happen to think victim testimony is a terrible standard.
Honestly, if the only evidence of a crime is "That guy did X", and that alone is enough to convict, this is not a virtue at all. This to me would be the lowest form of justice.
If it stands up to the scrutiny of cross-examination? It's fine. It has to be fine. If it isn't fine, what could be?
I'll concede that sometimes it's all we got to go on.
It's just a very very low standard, I wasn't implying isn't a standard.
The Bar should be as high as humanly and technologically possible.
Well, that's simple. Just abolish the criminal justice system entirely.
Assuming we actually want to do some law enforcement, we're going to have to set the bar a bit lower than that. I certainly agree with you in the ideal that it is better to let a guilty person go free than punish an innocent. But if we punish anyone, there is always the possibility, however slight, that we will punish an innocent on occasion. A high-minded pronouncement about where to set the bar has to interface with reality somehow.
Whoa whoa - please do not twist my argument into Blackstone.
I have always accepted that sometimes innocent people get punished. Have you not heard me in the death penalty threads?
I think the standard of evidence should be very HIGH, not perfect.
I have pointed out before that our error rate is something like 0.6% and that's with the death penalty, something I believe we should use much more often.
My acceptance of imperfection in the justice system doesn't mean I can't want us to use every bit of tech and sleuth possible to investigate.
If the standard is extremely high, and you still go down for a crime you didn't commit, tough cookies.
"That guy did X" doesn't seem high enough to me at all. But I accept it's existence in the legal system.
Are you now victim blaming? Isn't this something we get beat over our heads everywhere especially by the media?
It's not the rape victims fault. Dressing provocatively, or going out to a party, etc., is not an invitation to get raped.
Hey, I'm not blaming the victim. I'm just providing advice that is useful, fair, and gender neutral: don't sleep with somebody you don't trust not to destroy your future.
I won't argue here, because that wasn't my point.
If you notice in the post you linked, I was merely giving examples.
I actually think a little victim blaming is often warranted - after all, we do have a co-negligence precedent in the law.
I was merely pointing out that what you said sounded an awful lot like the kind of thing the media would crucify a political figure for saying.
It sounded like victim blaming. Oh you got raped, you shouldn't have acted like a skank. Oh you got falsely accused of rape, you shouldn't have slept with a skank.
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Blinking Spirit-I dont believe the bar should be raised but lowering the standard of proof so that only a preponderance of evidence is required, 3 out of 5 jurors to convict, allowing testimony from experts who have never meet the accuser or know anything at all about them to testify to effectively "women never lie" is a lowering of the bar, in a very real way.
One of the things that really irks me about rape shield laws is the accuser could have falsely accused a thousand other people and that fact is still inadmissable if they accuse you.
Now the Obama administration has promised to take more action to (among other things) increase the rates of convictions in the the college tribunals, I'm honestly afraid of what that means.
Blinking Spirit-I dont believe the bar should be raised but lowering the standard of proof so that only a preponderance of evidence is required, 3 out of 5 jurors to convict, allowing testimony from experts who have never meet the accuser or know anything at all about them to testify to effectively "women never lie" is a lowering of the bar, in a very real way.
Quote from Blinking Spirit »
But nobody here has actually advocated for that. When they do, I'll argue against them.
One of the things that really irks me about rape shield laws is the accuser could have falsely accused a thousand other people and that fact is still inadmissable if they accuse you.
And you could have actually raped a thousand other people, and that fact is inadmissible too. And if someone is a career pickpocket, in their petty larceny trial, that fact is inadmissible. Character evidence generally cannot be used this way in criminal court.
After all, as horrible as making a false rape accusation is, we still don't want the accuser to be targeted by a rapist who knows they will not be believed. Do we?
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After all, as horrible as making a false rape accusation is, we still don't want the accuser to be targeted by a rapist who knows they will not be believed. Do we?
I'm pretty sure he'd hate the reverse too - what if someone targeted people on the sex offender registry? Then they could simply claim "well (s)he's a sex offender, clearly they're capable of violating me, and therefore guilty!" But I haven't heard of this happening a whole ton, and I'm guessing it might have something to do with the fact that a person's reputation is not considered evidence.
Ladyluck, Blinking Spirit-Actually the sexual history of the accused is admissable as evidence in a rape trial. Isn't behavior that forms a pattern admissable in any other case?
Originally Posted by joande Blinking Spirit-I dont believe the bar should be raised but lowering the standard of proof so that only a preponderance of evidence is required, 3 out of 5 jurors to convict, allowing testimony from experts who have never meet the accuser or know anything at all about them to testify to effectively "women never lie" is a lowering of the bar, in a very real way.
Quote:
Originally Posted by Blinking Spirit But nobody here has actually advocated for that. When they do, I'll argue against them.
The thing is those are real world events that have occured! I'm arguing they are unjust and represent a real civil rights issue.
How would you feel if you were falsely accused by a serial false accuser and jail bound because you couldn't bring up that persons long history of lying about exactly that? I have no interest in anyone being victimized but how the hell is that not throwing someone under the bus?
I'm pretty sure he'd hate the reverse too - what if someone targeted people on the sex offender registry? Then they could simply claim "well (s)he's a sex offender, clearly they're capable of violating me, and therefore guilty!" But I haven't heard of this happening a whole ton, and I'm guessing it might have something to do with the fact that a person's reputation is not considered evidence.
Neither that NOR "Well, she's had sex with 9 guys in the past month" should be a guarantee of guilt or innocence, do you really think that they shouldn't even be considered?
Ladyluck, Blinking Spirit-Actually the sexual history of the accused is admissable as evidence in a rape trial. Isn't behavior that forms a pattern admissable in any other case?
Yeah, from my reading of rape shield laws, only the victim is protected, and I think that that is absolute BS.
I feel that it would be extremely important, especially in a case where there was uncertainty, to explore the character of both people involved. A case reads very differently if the facts are just "They had sex last night, consent may not have been established" or if they include "supposed victim has had dozens of similar encounters in the past six months" or "supposed victim has unsuccessfully accused 9 other men of rape" or "defendant has been accused of rape in two states." While, again, this should never be a standalone defense, I think that it would help courts err on the side of not falsely accusing people of rape.
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Rape shield laws do not circumvent the defendant's constitutional rights. For example, let's look at Massachusett's law.
(a) Rape Shield. Except as otherwise provided, evidence of the reputation or specific instances of a victim’s sexual conduct shall not be admissible in any criminal or civil proceeding involving alleged sexual misconduct.
If we stop here, this seems pretty restricting. However, we have to check what those exceptions mentioned in the first sentence are:
(b) Exceptions. The following specific act evidence may be admissible:
(1) evidence of the victim’s sexual conduct with the defendant;
(2) evidence of the victim’s recent conduct alleged to be the cause of any physical feature, characteristic, or condition of the victim; and
(3) evidence the exclusion of which would violate the constitutional rights of the defendant.
The note for exception (3) provides:
Subsection (b)(3). This subsection is derived from Commonwealth v. Joyce, 382 Mass. 222, 227–229, 415 N.E.2d 181, 185–186 (1981). The Supreme Judicial Court has stated that
“[a] defendant’s constitutional right to put forth his full defense outweighs the interests underlying the rape-shield statute, however, only if he shows that the theory under which he proceeds is based on more than vague hope or mere speculation, and he may not engage in an unbounded and freewheeling cross-examination in which the jury are invited to indulge in conjecture and supposition” (quotations and citations omitted).
Where evidence of bias is available by other means, no evidence of the complainant’s prior sexual history should be admitted.” Commonwealth v. Gagnon, 45 Mass. App. Ct. 584, 589, 699 N.E.2d 1260, 1264 (1998). See also Commonwealth v. Pyne, 35 Mass. App. Ct. 36, 38, 616 N.E.2d 470, 471 (1993), citing Commonwealth v. Elder, 389 Mass. 743, 751 nn.11–12, 452 N.E.2d 1104, 1110 nn.11–12 (1983). Cf. Commonwealth v. Stockhammer, 409 Mass. 867, 875, 570 N.E.2d 992, 998 (1991) (specific act evidence may be used to demonstrate the complainant’s bias or motive to fabricate). Evidence may be used to show that the complainant made prior false allegations of rape or abuse. See Commonwealth v. Bohannon, 376 Mass. 90, 94–95, 378 N.E.2d 987, 991 (1978) (evidence admissible where witness was the complainant at trial, consent was central issue, complainant’s testimony was inconsistent and confused, and there was independent basis for concluding that prior allegations were false). Cf. Commonwealth v. Talbot, 444 Mass. 586, 590–591, 830 N.E.2d 177, 181 (2005); Commonwealth v. Blair, 21 Mass. App. Ct. 625, 626–629, 488 N.E.2d 1200, 1201–1203 (1986). A defendant may introduce evidence that a complainant has been subjected to past sexual abuse to explain the complainant’s inappropriate knowledge of sexual matters. See Commonwealth v. Ruffen, 399 Mass. 811, 814–817, 507 N.E.2d 684, 687–688 (1987). See also Commonwealth v. Beaudry, 445 Mass. 577, 580–586, 839 N.E.2d 298, 302–305 (2005). A trial judge has discretion to admit evidence of a complainant’s prior conviction for a sexual offense, but must take into consideration the objectives of the rape-shield statute. See Commonwealth v. Harris, 443 Mass. 714, 723–728, 825 N.E.2d 58, 66–69 (2005) (harmonizing G. L. c. 233, §§ 21 and 21B). “The judge must determine whether the weight and relevance of the proffered evidence of bias or motive to lie is sufficient to outweigh its prejudicial effect to the victim” (citation omitted). Commonwealth v. Noj, 76 Mass. App. Ct. 194, 198–199, 920 N.E.2d 894, 897–898 (2010) (in a prosecution for rape, trial judge properly exercised discretion to exclude victim’s three prior convictions for prostitution because the marginal relevance of the evidence to the defendant’s theory of fabrication was not sufficient to outweigh its prejudicial effect on the jury, which might misuse the evidence to minimize the effect of a sexual assault on a prostitute who also was a drug user and an alcoholic).
Conversely, “[i]n the exercise of this discretion a trial judge should consider the important policies underlying the rape-shield statute. He should exclude evidence of specific instances of a complainant’s sexual conduct in so far [sic] as that is possible without unduly infringing upon the defendant’s right to show bias.” Commonwealth v. Joyce, 382 Mass. at 231, 415 N.E.2d at 188.
In other words, it is not the case that rape shield laws prohibit a defendant from mounting a reasonable defense which considers specific and relevant attributes of the accuser's history.
Tiax-That's one states law, not all states. There have been recorded cases where rape shield laws were deemed to have violated the rights of the accused.
So rape shield laws can in theory be done right, but often are not, in regards to protecting the accuser but not in protecting the accused from having their history used against them.
Tiax-That's one states law, not all states. There have been recorded cases where rape shield laws were deemed to have violated the rights of the accused.
So rape shield laws can in theory be done right, but often are not, in regards to protecting the accuser but not in protecting the accused from having their history used against them.
This.
Also, the MA law has some major, glaring errors to me. First, it would be extremely difficult to include prior sexual conduct, unless is resulted in a failed rape claim (The standard is fairly high).
Second, "exclude evidence of specific instances" at the end - judges are allowed to exclude any of the above as long as they feel they aren't unduly infringing on the defendant's rights. So yeah, they can still infringe, as long as it isn't too much.
These basically make if very difficult to introduce ANY evidence beyond the victim straight-up lying and getting caught, and even that can be excluded if the judge feels bad enough for the victim. The same standard of excluding history needs to be applied to defendants or (preferably) these kinds of laws need to bite the dust. Justice trumps being nice, and a trial should include ALL relevant information, not a set of facts that are tailored to make it more difficult for one side to win.
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Tiax-That's one states law, not all states. There have been recorded cases where rape shield laws were deemed to have violated the rights of the accused.
Hell, the text that I quoted cites multiple cases in which such laws were deemed to have violated the rights of the accused. That's exactly my point - the judicial system protects the right of the accused to present their defense, and rape shield laws that attempt to tread on those rights get overturned.
Further, this sort of exception is quite standard. It is similarly present in the federal rules of evidence:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
If you believe this is not standard, I'd like you show me a current rape shield law that does not include such an exception (although such a law would, regardless, be unenforceable under Supreme Court precedent, Olden v. Kentucky).
Look - from my understanding, these laws are designed to exclude the "well she sleeps around a lot, clearly she's a **** and would've consented to have sex with anyone!" defense, because that defense is designed to abuse our society's inaccurate and prejudiced notion that a woman who sleeps around = untrustworthy, deviant, immoral. Since this argument hinges on an association that is not remotely rational, nor based in reality, it makes perfect sense that it would be deemed unacceptable in our legal proceedings.
But, the fact of the matter is, a victim's sex life is a private matter, and this country does recognize a right to privacy. In considering whether or not to allow such evidence, the Judge must weigh that right of the accuser with the rights of the accused; and no, neither side automatically trumps the other. If we are to trample a person's privacy by dragging their sex life into the courtroom, then we should first make sure its really necessary for the defendant's case. AKA, exactly what the law says.
Let me ask this - can you think of a defense involving an accuser's past sexual history, that would be inadmissible under the laws quoted in this thread, that does NOT involve/amount to "(s)he sleeps around a lot"?
Look - from my understanding, these laws are designed to exclude the "well she sleeps around a lot, clearly she's a **** and would've consented to have sex with anyone!" defense, because that defense is designed to abuse our society's inaccurate and prejudiced notion that a woman who sleeps around = untrustworthy, deviant, immoral. Since this argument hinges on an association that is not remotely rational, nor based in reality, it makes perfect sense that it would be deemed unacceptable in our legal proceedings.
You don't even have to get all preachy about societal prejudices to see why it's inadmissible. (Remember that these laws protect male accusers too.) It's simply a fact of logic that just because somebody has consented to a lot of other sex does not demonstrate that they consented to this sex. Just as just because somebody has committed a lot of rapes does not demonstrate that they committed this rape. And just because somebody has picked a lot of pockets does not demonstrate that they picked this pocket. Evidence must point to the specific event in question; evidence of general character traits simply does not work.
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Not entirely true on the "committed a lot of rapes" front, according to what was cited upthread - "A trial judge has discretion to admit evidence of a complainant’s prior conviction for a sexual offense, but must take into consideration the objectives of the rape-shield statute." So sometimes that can be valid evidence. As to why I can only speculate. My guess would be that there's research to demonstrate that those guilty of repeated sex offenses are highly likely to attempt it again when presented with the opportunity. On the other hand as Blinking Spirit indicated, a person having sex with a bunch of people in the past doesn't necessarily mean they'll jump at every opportunity to have sex.
Having committed past crimes can be used as evidence of some things, but not of others. In particular, you cannot not use previous rapes as evidence that a person has a proclivity to rape, and therefore acted on that proclivity in the case at hand. It can, however, be used as evidence for demonstrating other facts about the crime, as detailed below.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
This protection is similar to that provided by the rape shield laws. Prosecutors cannot simply delve into speculative exploration of a defendant's history of sexual misconduct. Such evidence is only admissible when it's relevant to the case in an appropriate way. Just as with rape shield laws.
The cries from joande and co. that rape shield laws are unjust because they don't protect the defendant are a bit absurd. Defendants already have protection under the rules of evidence. Rape shield laws were created to fill a gap in protection for the accuser, a gap that simply did not exist for defendants.
Look - from my understanding, these laws are designed to exclude the "well she sleeps around a lot, clearly she's a **** and would've consented to have sex with anyone!" defense, because that defense is designed to abuse our society's inaccurate and prejudiced notion that a woman who sleeps around = untrustworthy, deviant, immoral. Since this argument hinges on an association that is not remotely rational, nor based in reality, it makes perfect sense that it would be deemed unacceptable in our legal proceedings.
You don't even have to get all preachy about societal prejudices to see why it's inadmissible. (Remember that these laws protect male accusers too.) It's simply a fact of logic that just because somebody has consented to a lot of other sex does not demonstrate that they consented to this sex. Just as just because somebody has committed a lot of rapes does not demonstrate that they committed this rape. And just because somebody has picked a lot of pockets does not demonstrate that they picked this pocket. Evidence must point to the specific event in question; evidence of general character traits simply does not work.
Whole none of those may be all the evidence required to prove guilt or innocence, shouldn't,t they be considered? Someone who sleeps around a lot is more likely to consent to sex, just like previous rape convictions should weight against the defendant and be considered just like every other fact in the case.
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Whole none of those may be all the evidence required to prove guilt or innocence, shouldn't,t they be considered? Someone who sleeps around a lot is more likely to consent to sex, just like previous rape convictions should weight against the defendant and be considered just like every other fact in the case.
You have to balance the value of the evidence against its tendency to bias the jury. Often, things like sexual history or criminal past are of minimal value as evidence, but can have a large impact on the mindset of the jury. That's why such things are often excluded unless they have some particular relevance that outweighs their biasing effect.
Now, I'm a suspect in a robbery that happened yesterday.
I'm innocent, and their evidence is circumstantial and rather weak. However, because of my past crime, the jury is willing to convict based on that circumstantial and weak evidence, and their opinion of me developed after they heard about my past.
I'm innocent, but convicted.
The person actually guilty is therefore not convicted of the crime.
This - this is unjust.
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Someone who sleeps around a lot is more likely to consent to sex, just like previous rape convictions should weight against the defendant
The former I'm going to tell you just isn't true, especially if there are demonstrable differences between the people the accuser slept around with, and the person they claim raped them. This might not be true of past rape convictions, but I can understand why they'd apply the same standard and not allow it. It seems past convictions would be ok only to prove that the accused would know how to rob a bank, or where to acquire a date-rape drug, or something of that nature. From what I'm hearing both from the quotes from Tiax, and from a friend with legal training, a person's character/credibility is generally not something lawyers are allowed to go after.
Not entirely true on the "committed a lot of rapes" front, according to what was cited upthread - "A trial judge has discretion to admit evidence of a complainant’s prior conviction for a sexual offense, but must take into consideration the objectives of the rape-shield statute."
"A complainant's".
That's the person making the accusation, not the person accused.
Whole none of those may be all the evidence required to prove guilt or innocence, shouldn't,t they be considered? Someone who sleeps around a lot is more likely to consent to sex, just like previous rape convictions should weight against the defendant and be considered just like every other fact in the case.
Just because a person is more likely to do something is not evidence that they did that thing on one particular instance. The Joker is a homicidal maniac who murders a lot of people, but that doesn't mean that everybody murdered in Gotham City was murdered by the Joker. If you don't have evidence linking the Joker to the particular crime you're trying him for, you have to cut him loose.
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Statutory rape is an area where I have severe problems with the information presented and the "age bracket" problem. For example, an 18 year old having sex with a young teenager, say 13, is strange. The elder in these days would be considered beastial, in older days they would be husband and wife. So I have to really consider whether some of these age restrictions make sense and having to look specifically at the relationship itself. Grooming, bullying, abuse and so forth open up a lot of problems.
I am often reminded of a young man I knew decades ago who regaled a story about going to college party. He was underneath the age of consent, large for his age, and made love with a college girl. At the morning she lied about being on the pill and said he might be a father. His response that he maybe a father, but he he was also actually underage and she'd better deal with the problem herself (inferring abortion).
That story has stuck with me for quite some time about the relations and power that lying to a partner can create problems. While I'm not going to dictate the veracity of the story itself, the person in question was certain adventurous, but rather the morality behind the balance behind the story for right and wrong.
Both had sex, both lied, yet the girl would have went to jail or been charged and the young man would have been a father. In response to not worrying about being a father, he used the statutory rape to try and force an out for himself in lieu of her being charged. Which, frankly, I find to be predatory in it's own way.
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Everyone who has read this thread knows I generally err on the side of rape victims. So with that being said, I 100% agree that the laws concerning statutory rape are a load of bull****. This is one case where anti-male sexism comes out in full force. When 2 teenagers voluntarily have sex, technically speaking, both are equally "guilty". However, 9 times out of 10, when charges are pressed, it's by the parents of the girl against the boy. This is a place where parents are unquestionably perpetuating the "guy predator, girl victim" narrative, and it's totally unnecessary. It MIGHT be the case that teenage guys usually initiate the sexual act, and there probably are a non-zero number of cases where a teenage guy pressures his teenage girlfriend in a way that constitutes rape. But to act like EVERY case of 2 teenagers getting it on follows that pattern is just insane...
Personally I think this again comes from our ass-backwards way we handle sex with young people - they have raging hormones, we KNOW they have the biological urges. Yet we just kind of tell them "oh don't do it", and don't give them any information about birth control, what constitutes consent, how to y'know, ENJOY it, or any other seemingly basic information, because OH NOES SEX EVIL IMMORAL WAIT TIL MARRIAGE.
Now, I'm a suspect in a robbery that happened yesterday.
I'm innocent, and their evidence is circumstantial and rather weak. However, because of my past crime, the jury is willing to convict based on that circumstantial and weak evidence, and their opinion of me developed after they heard about my past.
I'm innocent, but convicted.
The person actually guilty is therefore not convicted of the crime.
This - this is unjust.
This also isn't in any way applicable to a rape case - the situation I'm discussing isn't whether or not you were actually present to have the sex (consensual or otherwise). In your example, Say I was convicted on a rape charge in 1997. A week ago, a woman was raped at a party I attended (no other evidence links me to the rape), and I am convicted. That WOULD be bull****, but that also isn't the discussion at hand.
Just because a person is more likely to do something is not evidence that they did that thing on one particular instance. The Joker is a homicidal maniac who murders a lot of people, but that doesn't mean that everybody murdered in Gotham City was murdered by the Joker. If you don't have evidence linking the Joker to the particular crime you're trying him for, you have to cut him loose.
I agree with you entirely. However, in the penumbral cases that we're discussing, the question isnt whether or not sex occurred, only whether or not it could have been consensual. This is, barring more concrete evidence, a question of character. In that case, shouldn't more general evidence be allowed in order to bring clarity to the situation? And, if there is better evidence, wouldn't the prosecution have that to rebut the claims? If not, they why are we excluding the best possible evidence only to protect the accuser?
To do the murder analogy accurately, we'd have to do something like this: A man stabs someone else and they end up dying. Murder requires an act and a state of mind. The case would COMPLETELY change if the defendant included that the person they stabbed had been convicted of armed robbery twice, and the murder charge would be downgraded to something else. (hell, even that isn't really that good, but I won't come up with better this late) In fact, in criminal cases, the defendant is allowed to bring ANY kind of character evidence in against the accuser excluding anything that pertains to sexual character, which is a bit nutty to me. Why do we allow a defendant to question every relevant aspect of an accuser outside of their sexual preferences?
As has been said, if there's a specific aspect of the accuser's sexual history that is relevant to a coherent defense, that's admissible. Rape shield laws do not trump the Sixth Amendment.
However, something like "the accuser has had many sexual partners, therefore they probably consented to this one" is not a coherent defense. That's just speculative nonsense.
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I happen to think victim testimony is a terrible standard.
Honestly, if the only evidence of a crime is "That guy did X", and that alone is enough to convict, this is not a virtue at all. This to me would be the lowest form of justice.
The Bar should be as high as humanly and technologically possible.
Then, the punishment should be extreme, and swift.
The subjects of a false rape allegation (and notably, any false crime allegation) are often socially and financially ruined before any trial even concludes.
Are you now victim blaming? Isn't this something we get beat over our heads everywhere especially by the media?
It's not the rape victims fault. Dressing provocatively, or going out to a party, etc., is not an invitation to get raped.
Well the subject of a false rape allegation is a victim too.
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Well, that's simple. Just abolish the criminal justice system entirely.
Assuming we actually want to do some law enforcement, we're going to have to set the bar a bit lower than that. I certainly agree with you in the ideal that it is better to let a guilty person go free than punish an innocent. But if we punish anyone, there is always the possibility, however slight, that we will punish an innocent on occasion. A high-minded pronouncement about where to set the bar has to interface with reality somehow.
Hey, I'm not blaming the victim. I'm just providing advice that is useful, fair, and gender neutral: don't sleep with somebody you don't trust not to destroy your future.
Yes. Yes, it is.
candidus inperti; si nil, his utere mecum.
I'll concede that sometimes it's all we got to go on.
It's just a very very low standard, I wasn't implying isn't a standard.
Whoa whoa - please do not twist my argument into Blackstone.
I have always accepted that sometimes innocent people get punished. Have you not heard me in the death penalty threads?
I think the standard of evidence should be very HIGH, not perfect.
I have pointed out before that our error rate is something like 0.6% and that's with the death penalty, something I believe we should use much more often.
My acceptance of imperfection in the justice system doesn't mean I can't want us to use every bit of tech and sleuth possible to investigate.
If the standard is extremely high, and you still go down for a crime you didn't commit, tough cookies.
"That guy did X" doesn't seem high enough to me at all. But I accept it's existence in the legal system.
I won't argue here, because that wasn't my point.
If you notice in the post you linked, I was merely giving examples.
I actually think a little victim blaming is often warranted - after all, we do have a co-negligence precedent in the law.
I was merely pointing out that what you said sounded an awful lot like the kind of thing the media would crucify a political figure for saying.
It sounded like victim blaming.
Oh you got raped, you shouldn't have acted like a skank.
Oh you got falsely accused of rape, you shouldn't have slept with a skank.
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“Thus strangely are our souls constructed, and by slight ligaments
are we bound to prosperity and ruin.”
― Mary Shelley, Frankenstein
One of the things that really irks me about rape shield laws is the accuser could have falsely accused a thousand other people and that fact is still inadmissable if they accuse you.
Now the Obama administration has promised to take more action to (among other things) increase the rates of convictions in the the college tribunals, I'm honestly afraid of what that means.
PS-Anyone can be falsely accused by anyone.
And you could have actually raped a thousand other people, and that fact is inadmissible too. And if someone is a career pickpocket, in their petty larceny trial, that fact is inadmissible. Character evidence generally cannot be used this way in criminal court.
After all, as horrible as making a false rape accusation is, we still don't want the accuser to be targeted by a rapist who knows they will not be believed. Do we?
candidus inperti; si nil, his utere mecum.
I'm pretty sure he'd hate the reverse too - what if someone targeted people on the sex offender registry? Then they could simply claim "well (s)he's a sex offender, clearly they're capable of violating me, and therefore guilty!" But I haven't heard of this happening a whole ton, and I'm guessing it might have something to do with the fact that a person's reputation is not considered evidence.
Originally Posted by joande
Blinking Spirit-I dont believe the bar should be raised but lowering the standard of proof so that only a preponderance of evidence is required, 3 out of 5 jurors to convict, allowing testimony from experts who have never meet the accuser or know anything at all about them to testify to effectively "women never lie" is a lowering of the bar, in a very real way.
Neither that NOR "Well, she's had sex with 9 guys in the past month" should be a guarantee of guilt or innocence, do you really think that they shouldn't even be considered?
Yeah, from my reading of rape shield laws, only the victim is protected, and I think that that is absolute BS.
I feel that it would be extremely important, especially in a case where there was uncertainty, to explore the character of both people involved. A case reads very differently if the facts are just "They had sex last night, consent may not have been established" or if they include "supposed victim has had dozens of similar encounters in the past six months" or "supposed victim has unsuccessfully accused 9 other men of rape" or "defendant has been accused of rape in two states." While, again, this should never be a standalone defense, I think that it would help courts err on the side of not falsely accusing people of rape.
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If we stop here, this seems pretty restricting. However, we have to check what those exceptions mentioned in the first sentence are:
The note for exception (3) provides:
In other words, it is not the case that rape shield laws prohibit a defendant from mounting a reasonable defense which considers specific and relevant attributes of the accuser's history.
So rape shield laws can in theory be done right, but often are not, in regards to protecting the accuser but not in protecting the accused from having their history used against them.
This.
Also, the MA law has some major, glaring errors to me. First, it would be extremely difficult to include prior sexual conduct, unless is resulted in a failed rape claim (The standard is fairly high).
Second, "exclude evidence of specific instances" at the end - judges are allowed to exclude any of the above as long as they feel they aren't unduly infringing on the defendant's rights. So yeah, they can still infringe, as long as it isn't too much.
These basically make if very difficult to introduce ANY evidence beyond the victim straight-up lying and getting caught, and even that can be excluded if the judge feels bad enough for the victim. The same standard of excluding history needs to be applied to defendants or (preferably) these kinds of laws need to bite the dust. Justice trumps being nice, and a trial should include ALL relevant information, not a set of facts that are tailored to make it more difficult for one side to win.
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Hell, the text that I quoted cites multiple cases in which such laws were deemed to have violated the rights of the accused. That's exactly my point - the judicial system protects the right of the accused to present their defense, and rape shield laws that attempt to tread on those rights get overturned.
Further, this sort of exception is quite standard. It is similarly present in the federal rules of evidence:
If you believe this is not standard, I'd like you show me a current rape shield law that does not include such an exception (although such a law would, regardless, be unenforceable under Supreme Court precedent, Olden v. Kentucky).
But, the fact of the matter is, a victim's sex life is a private matter, and this country does recognize a right to privacy. In considering whether or not to allow such evidence, the Judge must weigh that right of the accuser with the rights of the accused; and no, neither side automatically trumps the other. If we are to trample a person's privacy by dragging their sex life into the courtroom, then we should first make sure its really necessary for the defendant's case. AKA, exactly what the law says.
Let me ask this - can you think of a defense involving an accuser's past sexual history, that would be inadmissible under the laws quoted in this thread, that does NOT involve/amount to "(s)he sleeps around a lot"?
candidus inperti; si nil, his utere mecum.
http://www.law.cornell.edu/rules/fre/rule_404
This protection is similar to that provided by the rape shield laws. Prosecutors cannot simply delve into speculative exploration of a defendant's history of sexual misconduct. Such evidence is only admissible when it's relevant to the case in an appropriate way. Just as with rape shield laws.
The cries from joande and co. that rape shield laws are unjust because they don't protect the defendant are a bit absurd. Defendants already have protection under the rules of evidence. Rape shield laws were created to fill a gap in protection for the accuser, a gap that simply did not exist for defendants.
Whole none of those may be all the evidence required to prove guilt or innocence, shouldn't,t they be considered? Someone who sleeps around a lot is more likely to consent to sex, just like previous rape convictions should weight against the defendant and be considered just like every other fact in the case.
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You have to balance the value of the evidence against its tendency to bias the jury. Often, things like sexual history or criminal past are of minimal value as evidence, but can have a large impact on the mindset of the jury. That's why such things are often excluded unless they have some particular relevance that outweighs their biasing effect.
Now, I'm a suspect in a robbery that happened yesterday.
I'm innocent, and their evidence is circumstantial and rather weak. However, because of my past crime, the jury is willing to convict based on that circumstantial and weak evidence, and their opinion of me developed after they heard about my past.
I'm innocent, but convicted.
The person actually guilty is therefore not convicted of the crime.
This - this is unjust.
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“Thus strangely are our souls constructed, and by slight ligaments
are we bound to prosperity and ruin.”
― Mary Shelley, Frankenstein
The former I'm going to tell you just isn't true, especially if there are demonstrable differences between the people the accuser slept around with, and the person they claim raped them. This might not be true of past rape convictions, but I can understand why they'd apply the same standard and not allow it. It seems past convictions would be ok only to prove that the accused would know how to rob a bank, or where to acquire a date-rape drug, or something of that nature. From what I'm hearing both from the quotes from Tiax, and from a friend with legal training, a person's character/credibility is generally not something lawyers are allowed to go after.
"A complainant's".
That's the person making the accusation, not the person accused.
Just because a person is more likely to do something is not evidence that they did that thing on one particular instance. The Joker is a homicidal maniac who murders a lot of people, but that doesn't mean that everybody murdered in Gotham City was murdered by the Joker. If you don't have evidence linking the Joker to the particular crime you're trying him for, you have to cut him loose.
candidus inperti; si nil, his utere mecum.
I am often reminded of a young man I knew decades ago who regaled a story about going to college party. He was underneath the age of consent, large for his age, and made love with a college girl. At the morning she lied about being on the pill and said he might be a father. His response that he maybe a father, but he he was also actually underage and she'd better deal with the problem herself (inferring abortion).
That story has stuck with me for quite some time about the relations and power that lying to a partner can create problems. While I'm not going to dictate the veracity of the story itself, the person in question was certain adventurous, but rather the morality behind the balance behind the story for right and wrong.
Both had sex, both lied, yet the girl would have went to jail or been charged and the young man would have been a father. In response to not worrying about being a father, he used the statutory rape to try and force an out for himself in lieu of her being charged. Which, frankly, I find to be predatory in it's own way.
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Individualities may form communities, but it is institutions alone that can create a nation.
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Here is my principle: Taxes shall be levied according to ability to pay. That is the only American principle.
Personally I think this again comes from our ass-backwards way we handle sex with young people - they have raging hormones, we KNOW they have the biological urges. Yet we just kind of tell them "oh don't do it", and don't give them any information about birth control, what constitutes consent, how to y'know, ENJOY it, or any other seemingly basic information, because OH NOES SEX EVIL IMMORAL WAIT TIL MARRIAGE.
This also isn't in any way applicable to a rape case - the situation I'm discussing isn't whether or not you were actually present to have the sex (consensual or otherwise). In your example, Say I was convicted on a rape charge in 1997. A week ago, a woman was raped at a party I attended (no other evidence links me to the rape), and I am convicted. That WOULD be bull****, but that also isn't the discussion at hand.
I agree with you entirely. However, in the penumbral cases that we're discussing, the question isnt whether or not sex occurred, only whether or not it could have been consensual. This is, barring more concrete evidence, a question of character. In that case, shouldn't more general evidence be allowed in order to bring clarity to the situation? And, if there is better evidence, wouldn't the prosecution have that to rebut the claims? If not, they why are we excluding the best possible evidence only to protect the accuser?
To do the murder analogy accurately, we'd have to do something like this: A man stabs someone else and they end up dying. Murder requires an act and a state of mind. The case would COMPLETELY change if the defendant included that the person they stabbed had been convicted of armed robbery twice, and the murder charge would be downgraded to something else. (hell, even that isn't really that good, but I won't come up with better this late) In fact, in criminal cases, the defendant is allowed to bring ANY kind of character evidence in against the accuser excluding anything that pertains to sexual character, which is a bit nutty to me. Why do we allow a defendant to question every relevant aspect of an accuser outside of their sexual preferences?
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However, something like "the accuser has had many sexual partners, therefore they probably consented to this one" is not a coherent defense. That's just speculative nonsense.