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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