Wednesday, September 17, 2008

Ignore The Victim When Determining Legal Consent

That Lawyer Dude has left a new comment on your post "Helen Mirren's Comments On Date Rape" (first section):

Let me begin by saying that I think you have written a thought provoking peice. [sic] Nevertheless I am concerned that you are confusing the reality of Date Rape with the ability to prove actual rape without undoing the very basis of our legal system, proof beyond a reasonable doubt.
I'm confusing nothing. Expecting the criminal justice system to treat all date rape victims like they are either liars, delusional or irrelevant is in no way reasonable.

From a trial lawyers point of view, how can one who is raped expect a jury to believe beyond a reasonable doubt that the alleged rapist forced sex on someone who already agreed to go to a bedroom, disrobe and engage in sexual play if not intercourse?
The key is reasonable doubt, emphasis on reasonable.

To make your blanket doubt of date rape victims reasonable, you need to assume that nobody is ever coerced or forced by someone they know into going into a bedroom, disrobing and engaging in so-called sexual play. Further, you need to assume that nobody who engages in sexual play ever chooses to stop at sexual play and that no man has ever agreed to engage in sexual play with no expectation for more.

"I only wanted to make out," must be considered to be unbelievable beyond a reasonable doubt.

Your question includes a faulty premise. Here's a more accurate version of your question as it applies to the prosecution of date rapists:

"How can one who is raped expect a jury to rule guilty beyond a reasonable doubt because of credible testimony that the alleged rapist forced sex on the alleged victim when the jury believes that going to a bedroom, disrobing and/or engaging in sexual play is a blank check?"

With this modified question you are right that victim testimony of being forcibly raped will be treated by a jury as irrelevant. What the rape victim consented to or didn't consent to after entering that bedroom becomes meaningless.

If the boyfriend of a woman who thought he was a caring person starts to block her airway the moment she gets naked so that she's afraid she'll will be suffocated if she doesn't break free, her testimony about her struggle, her fear and her rape is meaningless under your view of how criminal law should be applied in rape cases.

She agreed to get naked. End of criminal investigation. End of jury deliberation.

Blocking someone's mouth and nose leaves no bruises so there is no forensic evidence to prove this action. So this man should not be convicted until he kills a girlfriend under your model. If people learn he did this before, those prior girlfriends are likely to face scorn for not reporting him and therefore contributing to a murder.

Yet under your model, at best those victims would be viewed as possible rape victims if they reported. At worst they would be viewed as false accusers who could have faced ridicule or even criminal charges.

Under your model, the only way a jury can believe that a rapist is guilty of rape other than a confession is if the rapist immediately grabbed his victim -- who has never seen him before -- at gunpoint or knifepoint. And that victim of stranger rape had better hope that her rapist doesn't turn out to be an obsessed neighbor who makes up a story about a prior relationship which would make jurors question whether this is a case of date rape.

Remember, under your model, her testimony alone shouldn't result in a conviction if the rape can be described as date rape.
This does not change the fact that a rape may have occured. Nor does it change the fact that it may not have. However to teach women that they can engage in such behavior, and then expect a jury to convict a man on their say so is just not good policy.
What you are admitting is your methodology of choice is meaningless at determining guilt or innocence. Jurors who follow your model are disregarding victim testimony for no reason. That's incompetence not reasonable doubt.

You are advocating teaching women that they must assume that all men are rapists and that if they are ever alone with a man, that man can rape them without any fear of a rape conviction. Nice lesson.

You are advocating teaching men that they can engage in such behavior (rape of a woman they know), and then expect a jury to refuse to convict them because believing rape victims who know their rapists is bad policy.

If one type of crime victim's say so (testimony) should be disregarded then all crime victims' say so (testimony) must also be disregarded.

Also if the victim's say so (testimony) is worthless then so is any testimony from the alleged rapist. You cannot label the alleged rape victim as consenting or a liar on one person's say so.
Without his agreeing that he in fact forced himself on her, the alleged rapist is not, on the facts presented guilty beyond a reasonable doubt and should not be convicted.
Then the same must be true in all crimes where victim and/or witness testimony about what happened is used to prove guilt.

I think one would be hard pressed to even think that those circumstances would in and of themselves be sufficient proof in a purely civil trial.
Not when you are equating consent to anything with consent to everything and baselessly dismissing the testimony of the alleged victim.

I certainly hope you never allow someone who turns out to have criminal intent into your home if your approach to consent is used in non-sex crimes cases. By your own standards, you've provided that criminal with a blank check to do anything he wants inside your home and you've declared your testimony as meaningless.
I think Mirren is simply pointing out the obvious difficulty one would find themselves in if bringing a charge and making it stick.
Maybe, but most of that difficulty is manufactured to justify not prosecuting most rapes and to justify calling successful prosecutions of rapists who knew their victims proof of injustice.

She is not denying the rape, but she is saying that the situation leaves too much to speculation in the mind of a fact finder to haul a person into court on such a serious charge.
Mirren may believe that fact finders cannot tell the difference between consent to be alone with someone and consent to sex, but the cause of their difficulty isn't inherent in the legal standard of innocent until proven guilty and it isn't inherent in the concept of legal consent or reasonable doubt.

Anyone who cannot acknowledge the difference between consent to be alone with someone and consent for sex is a very dangerous person.

It isn't that jurors cannot tell the difference between legal consent and rape but that they refuse to see the difference or they see that difference and dismiss it as being unimportant under the circumstances.

Some people unfortunately seem to feel that the appropriate punishment for female nudity is rape. "He can't be convicted, she was nude."
Without blaming the victim, is it not a better idea to suggest to women that if they do not intend to have sex with their date, that they keep their clothes on, not because to do otherwise would mean they are asking to be raped, but because it would be far harder for signals to be mixed and easier for the non-rapist boyfriend to understand the parameters of the assignation?
Okay, let's test the validity of this suggestion.

Without blaming the rape suspects, is it not a better idea to suggest to men that if they do not intend to consent to everything the police want from them, that they refuse to open their door when the police knock, not because to do otherwise would mean they are asking to have the police trample their rights, but because it would be far harder for signals to be mixed and easier for the law-abiding cop to understand the parameters of the investigation?

If a boyfriend respects only generic signals and generic parameters, that boyfriend stops being a non-rapist once he uses those generic beliefs about when his girlfriend has consented instead of seeking and ensuring that he has legal consent directly from his girlfriend.

If a boy or man has to guess about consent or refer to what he's heard from his buddies about consent, he doesn't have legal consent. If he has to coerce or use substances or his body in any way to get agreement or cooperation, he doesn't have legal consent.

Here's my suggestion for That Lawyer Dude and those he is concerned about:

Without blaming men, is it not a better idea to suggest to men that if they do not intend to be rightfully charged with rape, that they don't rely on generic signals or popular beliefs to understand the parameters of the assignation, not because to do otherwise would mean that they will always be guilty of rape, but because it would be far harder for them to plead for the mercy of the court and easier to avoid becoming a rapist in the first place?

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posted by Marcella Chester @ 8:38 AM   11 comments links to this post


At September 18, 2008 10:33 PM, Anonymous That lawyer dude said...

I wish I had read this sooner. Again you have failed to acknowledge that the criminal justice system has another safety valve that inures to the benefit of the accused. He has no burden of proof.

In other words, The Prosecution, (or for the sake of our argument only and to simplify the matter) The victim, must prove beyond a reasonable doubt that there was a rape.

I think you set up a straw dog argument and I will adress it on my blog but the fact is, all other things being equal, given the facts as you stated them in your original post, the victim will be unable to carry the day, without some type of other evidence if the defendant testifies he did not commit a rape.
Assuming a blind fair jury that listens and follows the jury instructions as to burden of Proof and Proof beyond a Reasonable doubt, what makes you believe that the accuser is inherently more believable or should be, than the accused?

I think it is wrong headed to promote a policy that could put someone in harms way on an assumption that the law will protect that person if that person takes unreasonable risks.

I am not suggesting men never force themsleves on women, nor am I suggesting that women always lie about being raped. I am pointing out that unless there is some other proof, one person's word standing alone, is not going to win the day over another person's word. I am suggesting that if the facts fail to show the accuser was forced but do show that she was there, naked, engaged in sexual play, without proof of force, that the jury has an obligation, if they do not find something inherently wrong with the testimony of either party, to find the accused not guilty.

Finally just a word about your last paragraph, that is, that I do agree that a man has a right not to face a criminal charge and the chance of long term incarceration as well as life long sex offender registration, if the prosecutor is faced with a case such as the one you suggested originally. If the Prosecutor does not have at least probable (not possible) cause, then he is ethically bound not to persue the charge no matter how he or she may feel or what they "think" happened.

Here is a question I have for you:
Is it better for an innocent man to be accused and convicted or Rape, or to allow a man guilty of rape to go free because the needed level of proof is lacking?

At September 18, 2008 11:26 PM, Blogger Marcella Chester said...

That Lawyer Dude, first I'll respond to your question by pointing out that you are creating a false binary. You know it and I know it. That question is as old and stale as: "Have you stopped beating your wife yet?"

If as you claim the issue is that crime victims testimony cannot lead to the conviction of a criminal who denies the crime, because as you put it the case is one person's word against another's, then the fact that the rape victim got naked before being raped is absolutely meaningless.

Yet you give that detail great meaning. This negates your claim that a conviction is impossible due to the fact that it is one person's word against another person's.

You wrote: "I am not suggesting men never force themsleves on women, nor am I suggesting that women always lie about being raped."

This statement deliberately frames it so that men forcing themselves on women is rare and that women telling the truth when they report being raped is rare.

No wonder you want to baselessly throw out so many rape cases.

At September 18, 2008 11:37 PM, Blogger Marcella Chester said...

That Lawyer Dude,

You incorrectly parsed my last paragraph. If you agree with what I wrote there then you agree that all men must ensure that they have a woman's genuine and legal consent by doing more than listening to the opinion of those who see nudity as consent.

If you agree with that last paragraph, you must also agree that all men who rely on guesswork or popular beliefs about how much they can get away before they can be convicted of rape will have been rightfully accused of rape if their actions are reported to be rape.

At September 19, 2008 6:26 AM, Anonymous Anonymous said...

Underneath it all, Date Rape is a particularly heinous form of the crime. The rapist gains the victim's confidence in order to put her in a helpless position so that he can exploit her. Afterward, usually, he abandons her to whatever happens to her.

That is a bit of the human side of it.

At September 19, 2008 9:34 AM, Blogger Marcella Chester said...

That Lawyer Dude wrote: "Assuming a blind fair jury that listens and follows the jury instructions as to burden of Proof and Proof beyond a Reasonable doubt, what makes you believe that the accuser is inherently more believable or should be, than the accused?"

The problem with this question is it falsely implies that the sum of victim testimony is, "He raped me," to contrast with the defense claim, "He didn't rape her," or the defendant's testimony, "I didn't rape her."

Of course that isn't enough to convict anyone, but that description doesn't match the reality of rape trials. If you don't know this then you have no business talking about rape trials. If you do know this then you have no business distorting the reality of rape trials this way.

At September 19, 2008 11:58 PM, Anonymous That Lawyer Dude said...

Look, I didn't frame the case, you did. You said that the woman went willingly to the room, you said that the woman was naked and that she engaged in sex play. You said there was no physical evidence of rape or force, only the victim's detailed account. Mirren and I both didn't say a rape could not take place, only that it couldn't be proven without more than you suggested. It would require a confession. If the jury found the woman was more "believable" than the man, then they could in fact convict, but that would have to be based on more than the fact that she claimed she was raped. It would require that the nature of her testimony was was such that it was enough for a reasonable person to find there was a rape beyond a reasonable doubt.

On the other hand, the jury could completely disbelieve the defendant's defense, or that person could completely not defend the charge at all, and the jury would not have to find guilt. That is because if the jury did not believe the woman, even if it did not believe the man the prosecution would have failed to carry the burden of proof.
IF the jury found both testimony to be possible, then they would have to find the accused to be not guilty because without any other evidence (which is your hypothetical) there would not be proof beyond a reasonable doubt.

If a prosecutor is faced with such a dearth of evidence, then she must decide if she has sufficient evidence of a crime that it is worth the cost to the accused and the taxpayer to prosecute. This does not estop the accuser the opportunity to sue for damages and protection. It just means that justice requires that the prosecution not bring an action in the name of the people of the state which he believes will not carry the burden of proof.

You have called out this phrase"You wrote: "I am not suggesting men never force themsleves on women, nor am I suggesting that women always lie about being raped."
and commented:

This statement deliberately frames it so that men forcing themselves on women is rare and that women telling the truth when they report being raped is rare."

I disagree entirely. It doesn't frame the issue at all, it simply acknowledges that both things happen.

As for your parsing of my words, I do not know who lies about these things and who doesn't. It isn't my goal as an advocate to decide. It is my job to determine whether the state has sufficient evidence to carry the day beyond a reasonable doubt. In the case you described, which included the woman being in the room willingly and being fooled into taking her clothes off and having no physical proof of rape other than her word, I do not feel the prosecution would be able to sustain a motion to dismiss much less get an unassailable verdict of guilty.

I notice you ignored or failed to answer the question I asked you. Is it better for the innocent male to go to jail for a rape he did not commit, or for the guilty rapist to be acquitted because the prosecution did not have sufficient evidence to prove its case beyond a reasonable doubt?

At September 20, 2008 11:32 AM, Blogger Marcella Chester said...

That Lawyer Dude,

You are backtracking and contradicting yourself as you do so. You began by describing date rape cases and the subsequent trials without forensic evidence as one person's say so vs. another person's say so and therefore a conviction couldn't result from the proof of guilt beyond a reasonable doubt.

Now you acknowledge that these trials are more complex than your flip characterization which instead of owning you pass off as coming from rape victims.

I have not talked to a single rape survivor who has ever believed that his or her rapist can or will be convicted (let alone charged) based on nothing more than their report of rape made against a specific person. I have talked to rape survivors who couldn't even get their report of rape filed or who were quickly treated as the suspect.

But I have seen an expectation by many people that a rapist's denial of guilt of raping someone he knows should be enough for it to be considered an injustice if he is even charged with rape because that charge will taint him forever.

You said that it would require a confession to prove a rape case without physical evidence, but now you say a jury can assess the victim's testimony vs. the defense and they can find the defendant guilty.

If your first assertion was correct then the jury believing the rape victim and finding the rapist guilty must be done without meeting the legal standard of guilty beyond a reasonable doubt.

Your claim that a confession is absolute proof is also incorrect and dangerous. You are pushing cops toward interrogations which have the specific goal of eliciting a confession. If they get that confession then by your standard that person is guilty.

The problem is that confessions (including retractions from rape victims) can be coerced while true confessions (Sure she said no, but ...) can be ignored by cops and juries because of their attitude about the behavior of the rape victim prior to the rape.

When there is forensic evidence including evidence of force, defense lawyers usually respond with the claim that the sex was consensual and dismiss bruises on the victim's body by claiming that this proves nothing because some people -- including the alleged victim -- consent to rough sex.

The defense of "it was consensual" has even been used when the case is a stranger rape because "it is possible" for strangers to hook up.

You disagree with my assessment of your statement as implying probability: "I'm not suggesting men never force themselves on women, nor am I suggesting that women always lie about being raped." The problem with your clarification is that if you were merely trying acknowledge that both things happen (it has happened that a man was wrongly accused of rape and it has happened that a woman did lie about having been raped) you would have done so directly.

Guns do go off by accident but that possibility is not in itself reasonable doubt in an attempted murder trial. A possibility is a starting point, not an ending point. Yet in most rape cases many people want even the remotest possibility to be an ending place.

I did not ignore your question and I won't answer it for the same reason you won't answer my question: "Have you stopped beating your wife (or girlfriend) yet?"

Our only two choices are not 1) sending innocent men to jail for rapes they didn't commit or 2) acquitting guilty rapists, with these 2 choices predicated on the false claim that there cannot be sufficient evidence to prove rape beyond a reasonable doubt when there is no forensic evidence.

At September 20, 2008 1:05 PM, Blogger Marcella Chester said...

That Lawyer Dude's question would be more honest if it were worded as follows:

Should we convict all men accused of rape or should we convict no men accused of rape when there is no forensic evidence?

At September 22, 2008 12:13 PM, Anonymous Kali said...

The lawyer dude is attempting to make it impossible to convict *any* rapist. The strategy is two-step:

1. No rape can be prosecuted without forensic evidence, i.e. DNA and/or evidence of violent force, bruises, bleeding, etc.
2. If there is DNA evidence and/or evidence of violent force, then it cannot be proven that it was not consensual, because some women lie about being raped and some women like "edgy" sex.

Under this strategy, forensic evidence does not prove non-consent and the woman's word does not prove non-consent. Nothing proves non-consent beyond a reasonable doubt, therefore nothing proves rape beyond a reasonable doubt. How very convenient for rapists and their empathizers.

At September 25, 2008 12:50 AM, Blogger That Lawyer Dude said...

Again, for reason's I cannot understand, you oversimplified your initial hypothetical and then blame me for using your scenario as the paradigm for a theory I do not hold.

I said that given nothing else but the facts you related, a conviction would be unlikely and possibly unfair.

I never said in either my comment on your original post nor in my post today that the only way to convict would be with physical evidence. Go ahead and look at both those comments. I said "all other things being equal, given the facts as you stated them in your original post, the victim will be unable to carry the day, without some type of other evidence if the defendant testifies he did not commit a rape."

I never said physical evidence was the only type of evidence to have. I never said you had to have Forensic evidence. We all know that there are many types of evidence: circumstantial, eyewitness, psychological (ie Rape Trauma) and confession. (By the way, I have yet to ever see an interrogation that was not aimed at getting a confession or admission but I will not claim there has never been one somewhere).

Further I never argued that a confession would seal the day either. Nor did I say it was the only way to obtain a conviction, however given your hypothetical it would be a type of other evidence needed to obtain a conviction.

You have yourself stated that one person's word against another without more is not enough to win trials, nevertheless that is what you gave us to look at. If anything you were being flip with your hypothetical, to set up a mindset which I think is dangerous to young women.

As for the reality of a date rape trial, they are often very difficult, because there are so many things that either side can present poorly or misrepresent.
For example, the victim who has no emotion, is often thought to be lying because she cannot bring herself to tears, whereas the crying victim may be crying crocodile tears. A defendant who does not seem self righteous enough may be thought to have a guilty conscience when in fact all he is really doing is expressing self doubt.

Another commentator above suggests I want to protect the guilty. As an attorney trying cases, I want to properly represent my client's best interest. As a parent and member of the community, I want to see people prosecuted and see convicted, people who committed crimes that we can prove beyond a reasonable doubt. When I read the comments you have made in your post and comments sections, I wonder if you are not advocating lowering the bar, so that beyond a reasonable doubt is a much lower standard in date rape cases.

The question I posed is nothing like "do you still beat your wife" in that it does not offer a fact not in evidence.

I will answer my question. I would hate to see guilty rapists go free, but as bad as that would be, I would prefer that to having innocent people convicted and serve time for things they didn't do because we as a society are worried about political correctness to the point we dilute reasonable doubt because that standard makes some people uncomfortable.

Proof beyond a reasonable doubt means more than one's word against another. I do not think that your post or comments make that clear.

Thank you for providing a forum for this interchange of ideas.

At September 25, 2008 10:56 AM, Blogger Marcella Chester said...

That Lawyer Dude,

As a lawyer you know there is a difference between saying a conviction cannot be based on someone's say so and saying that a conviction cannot be based on a complete criminal case (prosecution and defense both get to put forth their evidence and testimony) where the victim's experience of being a crime victim is a crucial part of the case.

This second scenario happens in many non-sex crimes without a word of protest from those who claim this is a recipe for injustice. Either the claim that this scenerio leads to unjust convictions is bogus or those who are so vocal about rape cases are only selectively anti-injustice.

That you continue to conflate these 2 makes me believe that in rape cases that you care only about protecting all of those accused of rape. Not just protecting their rights. Protecting them. The best protection for those guilty of rape is injustice.

With the facts I related, a conviction may be unlikely because of the pervasive victim blaming, but it won't be unfair -- unless you believe that rape is acceptable under those circumstances.

The most likely scenario when a rape case depends on the victim testimony without supporting evidence, such as incriminating statements from the rapist, is that the prosecution will try to go for a plea deal or simply drop the case even if there are no crebibility issues.

For all the talk about unjust outcomes for those accused of rape, rape victims have unjust outcomes caused by bigotry (believing the lie that most who report rape weren't raped), incompetence (he said it was consensual, end of investigation) and sometimes malice (coercing rape victims into recanting).

You and many others show no genuine concern about seeing those injustices fixed. And you wonder why I don't view you as credible about the whole topic of injustice?


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