Is there less rape these days?

[Malthus]

Hmmm. But again, how could you meet the burden of proof absent corroboration, in a practical sense? Could you imagine me getting that conviction against my uncle strictly based on my own testimony, without ANY other evidence? Seems rather unlikely.

I understand the distinction now at least, and given the historical nature of rape, that does make sense. Indeed, it is kind of an empty statute, in that it doesn't really create new law, just makes it explicit that there is no such exception. Thanks for clarifying that.

I agree it will be very difficult to meet the burden.

[Barrister]

But I don't understand how you can ever meet the third criteria in the case in question, since there isn't any remaining evidence! You are going solely on the word of the victim, and in this case the victim is not even saying she remembers being raped!

This is even weaker than "He raped me, I told him to stop and he would not" norm that as I understand it is pretty hard to get a conviction out of.

Okay, I'm not sure what scenario we're even discussing here.

But take a situation where girl is at a house party.  Becomes very drunk and passes out.  Friends put her in a back room to sleep it off.  She is fully clothed.  Girl is not seen by anyone in the rest of the house for the night.

Girl wakes up in the morning naked from the waist down.  DNA reveals the semen of one of the party goers on the vaginal swab.  Girl can't remember anything about the night, never mind having sex.

This would actually be a fairly strong case of sexual assault.

[Berkut]

You have added a rather large amount of corroborating evidence there BB...

[Martinus]

You have added a rather large amount of corroborating evidence there BB...

Err, what kind of evidence? What he described was pretty much your scenario, i.e. the girl had sex with a guy but doesn't remember it or whether she consented or not. 

[Malthus]

But I don't understand how you can ever meet the third criteria in the case in question, since there isn't any remaining evidence! You are going solely on the word of the victim, and in this case the victim is not even saying she remembers being raped!

This is even weaker than "He raped me, I told him to stop and he would not" norm that as I understand it is pretty hard to get a conviction out of.

Okay, I'm not sure what scenario we're even discussing here.

But take a situation where girl is at a house party.  Becomes very drunk and passes out.  Friends put her in a back room to sleep it off.  She is fully clothed.  Girl is not seen by anyone in the rest of the house for the night.

Girl wakes up in the morning naked from the waist down.  DNA reveals the semen of one of the party goers on the vaginal swab.  Girl can't remember anything about the night, never mind having sex.

This would actually be a fairly strong case of sexual assault.

How about this - girl is having drinks at a college pub with some guys when one allegedly slips some of this in her drink:

http://en.wikipedia.org/wiki/Rohypnol

Flunitrazepam is known to induce anterograde amnesia in sufficient doses; individuals are unable to remember certain events that they experienced while under the influence of the drug. This effect is particularly dangerous when flunitrazepam is used to aid in the commission of sexual assault; victims may not be able to clearly recall the assault, the assailant, or the events surrounding the assault.

and

It is difficult to estimate just how many flunitrazepam-facilitated rapes have occurred in the past. Very often, biological samples are taken from the victim at a time when the effects of the drug have already passed and only residual amounts remain in the body fluids. These residual amounts are difficult, and sometimes impossible, to detect using standard screening assays available in the United States.

Girl wakes up back at the frat house with her pants on backwards, no panties, and no memory of the night. Suspecting the worst, she gets tested, and sure enough she is filled with a frat boy's sperm. Frat boy says "sure I did her - but she wanted it bad". By that time, though, there is no evidence that she was fed drugs (other than her say-so). None of the other frat boys remember seeing her.

Is she shit out of luck? This is actually a reasonably common scenario.

[Barrister]

You have added a rather large amount of corroborating evidence there BB...

I never said corroboration wasn't important.  Just not required.

I think that has been the entire problem here.  You got upset at the concept of a lack of corroboration rule, but I doubt you'd have much problem with almost all of the actual prosecutorial decisions I make.

Of course the absolute toughest ones are the true he said/she said, where both parties tell completely different versions.   There isn't any meaningful corroboration - people saw the two together earlier in the evening, they were drinking but not flirty or kissing, girl comes home the next morning and tells her friend/mother/whomever that she was raped last night.  Accused says she consented.

I think that's a reasonable prospect of conviction, but I wouldn't say its a high prospect.  That's a case where you level with the victim, that I'm happy to present the case but we need to be realistic about the outcome.  Sometimes the victim will not want to proceed, but usually they do.

And usually the accused walks.  Maybe a 10% conviction rate on those cases.

The problem is I absolutely can not predict which cases will fall in that 10%.

[Barrister]

How about this - girl is having drinks at a college pub with some guys when one allegedly slips some of this in her drink:

http://en.wikipedia.org/wiki/Rohypnol

Flunitrazepam is known to induce anterograde amnesia in sufficient doses; individuals are unable to remember certain events that they experienced while under the influence of the drug. This effect is particularly dangerous when flunitrazepam is used to aid in the commission of sexual assault; victims may not be able to clearly recall the assault, the assailant, or the events surrounding the assault.

and

It is difficult to estimate just how many flunitrazepam-facilitated rapes have occurred in the past. Very often, biological samples are taken from the victim at a time when the effects of the drug have already passed and only residual amounts remain in the body fluids. These residual amounts are difficult, and sometimes impossible, to detect using standard screening assays available in the United States.

Girl wakes up back at the frat house with her pants on backwards, no panties, and no memory of the night. Suspecting the worst, she gets tested, and sure enough she is filled with a frat boy's sperm. Frat boy says "sure I did her - but she wanted it bad". By that time, though, there is no evidence that she was fed drugs (other than her say-so). None of the other frat boys remember seeing her.

Is she shit out of luck? This is actually a reasonably common scenario.

First of all you have to put the entire issue of Rohypnol aside - without evidence you can't consider the bare allegation.

You question the girl.  Does she know the guy from before, does she know the fraternity house.  Is it possible that she might have agreed to have sex while drunk (tough question, but has to be asked).  You assess the girl's answers in terms of how she acted immediately afterwards, who she told, the manner in which she answered questions, whether anything she said was contradicted.

You question the guy.  How did he answer questions, how did he act the night of.  Can his answers be confirmed or contradicted by anything anyone else said.

I can't give an answer.  You look at all the factors and make a call.  It's a tough case, but nothing about it says to drop it immediately either.


And I disagree it's a common occurrence.  I really do think that almost all of the allegations of date-rape drugs are in fact people who grossly misremembered how much they had to drink, or had unusual reactions to alcohol.  The reason is that we find all kinds of things in people's pockets all the time when they are arrested on unrelated charges.  In particular all kinds of people get arrested in bars.  We find small amounts of pot all the time.

I have once, ever, seen a case involving a potential date-rape drug (in that case GHB).  If there were all these date-rape-drug-using perverts we would see it show up periodically.

[Malthus]

And I disagree it's a common occurrence.  I really do think that almost all of the allegations of date-rape drugs are in fact people who grossly misremembered how much they had to drink, or had unusual reactions to alcohol.  The reason is that we find all kinds of things in people's pockets all the time when they are arrested on unrelated charges.  In particular all kinds of people get arrested in bars.  We find small amounts of pot all the time.

I have once, ever, seen a case involving a potential date-rape drug (in that case GHB).  If there were all these date-rape-drug-using perverts we would see it show up periodically.

You may well be right that date-raping by drug is mostly a "folk devil" urban myth (I have no evidence either way) but the alleged rarity of the drug in people's pockets when searched by cops is a damn bizzare method of arriving at that conclusion. By definition, such types are bound to be a tiny percentage of the overall population, and the drugs themselves simply aren't that uncommon - I know at least three people who have done GBH for fun; as far as I know, I know of no date rapists. 

The percentage of guys deliberately stocking up on GBH to slip into peoples drinks is by nature going to be very tiny as a percentage of the total population - vastly outnumbered by the percentage of guys with a bit of weed on 'em. Unless someone is postulating vast armies of date-rapists lurking around every corner, you would expect actual random intercepts of such people to be rare.

[Barrister]

That's just my own reasoning.  It doesn't stand up to statistical scrutiny all that well, but it is an indicator.

There simply is very little evidence of any date-rape-drug use anywhere out there, but I hear comments from people on a fairly uncommon but consistent basis of "someone must have slipped something in my drink".

[Alcibiades]

Sounds like a story that happened to one of my buddies wives when she was in college a couple of years ago.

Goes to sports team party, friends with a couple of them.  Mixes a drink, has one of them watch it while she goes to the bathroom.  Last thing she remembers is coming back and sipping on it.  Wakes up at her supposed friend's house, raped.

[Malthus]

That's just my own reasoning.  It doesn't stand up to statistical scrutiny all that well, but it is an indicator.

There simply is very little evidence of any date-rape-drug use anywhere out there, but I hear comments from people on a fairly uncommon but consistent basis of "someone must have slipped something in my drink".

Difficult to prove either way, as simply drinking can cause many of the same symptoms (blackouts, amnesia), and the drug itself is hard if not impossible to detect.

I've certainly heard anecdotes of small amounts of drinking in dubious company leading to surprisingly severe effects (blackouts, amnesia) combined with allegations of sexual assault - but of course I'm not in a position to say if they have any validity.

[Barrister]

Difficult to prove either way, as simply drinking can cause many of the same symptoms (blackouts, amnesia), and the drug itself is hard if not impossible to detect.

I've certainly heard anecdotes of small amounts of drinking in dubious company leading to surprisingly severe effects (blackouts, amnesia) combined with allegations of sexual assault - but of course I'm not in a position to say if they have any validity.

Exactly my concern.  And often it is the friend of a friend kind of story.

In addition to very few busts for possession of this kind of drug, there are virtually no convictions for administering such a substance.  Again if it were as common as the stories go you'd surely see a few people being clumsy enough to get caught in a bar...

[Malthus]

Exactly my concern.  And often it is the friend of a friend kind of story.

In addition to very few busts for possession of this kind of drug, there are virtually no convictions for administering such a substance.  Again if it were as common as the stories go you'd surely see a few people being clumsy enough to get caught in a bar...

Well, true, but lack of convictions isn't proof it doesn't happen: as you yourself noted, there is no point even attempting to use an undetectable drug as "evidence". How would you prove it?

[Barrister]

Exactly my concern.  And often it is the friend of a friend kind of story.

In addition to very few busts for possession of this kind of drug, there are virtually no convictions for administering such a substance.  Again if it were as common as the stories go you'd surely see a few people being clumsy enough to get caught in a bar...

Well, true, but lack of convictions isn't proof it doesn't happen: as you yourself noted, there is no point even attempting to use an undetectable drug as "evidence". How would you prove it?

These drugs aren't undetectable though.  First they're obviously quite detectable when you're slipping them in a drink, or from inside the drink.  Second they can be detected in the bloodstream if testing is done in a short period of time.

And the whole process of manufacturing/selling the drug...

[Malthus]

These drugs aren't undetectable though.  First they're obviously quite detectable when you're slipping them in a drink, or from inside the drink.  Second they can be detected in the bloodstream if testing is done in a short period of time.

And the whole process of manufacturing/selling the drug...

The timelines for detection are short though. And the drugs are more commonly available than you seem to think - they are used recreationally.

That doesn't mean you are wrong, the anecdotes do have a flavour of urban mythology about them - but given human nature I'd be surprised if people hadn't tried it fairly often, maybe just *beacuse* of the publicity.