Rape and the Modern Penal Code

[The Minsky Moment]

Do you guys study much English caselaw (in particular 19th century stuff)?

Fletcher v. Rylands and Rylands v. Fletecher was the big one I remember studying.  There were a couple others as well.

The American states imported the common law of England as it existed c. 1776.  Subsequent English common law court decisions were not precedential or binding, but could be cited as persuasive authority.  It isn't that common to see English citations anymore because the US state domestic common law has developed so much over the years, and because much of what used to be common law doctrine was superseded by statute.  But it still happens every now and then.

[Caliga]

Do you guys study much English caselaw (in particular 19th century stuff)?

My favourite cases from 1st year crim law was the "is it murder to kill someone in a lifeboat and eat them if you're starving" case.

Is that from the famous case where a steamer sunk off South Africa and a bunch of starving sailors drew lots, and the guy with the short lot had the honor of being killed, butchered, and eaten?

[Barrister]

Fletcher v. Rylands and Rylands v. Fletecher was the big one I remember studying.  There were a couple others as well.

The very first case I ever prepped for trial was a small claims case.  I'm forgetting the details, but it involved a fire spreading to a neighbros property, and thus I came to court armed with Rylands v Fletcher.  I'll always have a found place in my ehart for that case.

[Barrister]

Are you arguing that you ought to be able to convict someone of a felony simply on the word of another interested party, under any circumstances?

I can understand your point - but I cannot imagine a situation where I would find it just to convict someone of a felony based ONLY on the word of someone who claims they saw it happened, when the person testifying is, by definition, not an unbiased or objective observer.

And yes, I do realize this will result in a travesty of justice, in many situations. Just not sure how to resolve it.

I am arguing it ought to be possible to convict.

First I would tend to disregard the notion of a "unbiased observer" as simply not helpful.  Everyone has some kind of bias, and it seems rather unfair to label the victim of a crime as biased.  Certainly they have nothing tangible to gain by going to court.

In the end it ought to be left up to the trier of fact to sort out (the judge or the jury).  They will certainly consider the lack of corroboration, but if they find the victim sufficiently convincing why shouldn't they have the option of convicting?

Also, under the old rule I believe there was a lot of caselaw revolving around what was or was not corroboration.  Were ripped panties corroboration?  Was the victim screaming "help I'm being raped" corroboration?  This kind of technical analysis doesn't really get you very far.

[Admiral Yi]

On a related note, anyone catch the 60 Minutes piece a cuppa two tree weeks back about a rape conviction based on mistaken identity and the severe fallibility of eyewitness testimony in general?

[Berkut]

Are you arguing that you ought to be able to convict someone of a felony simply on the word of another interested party, under any circumstances?

I can understand your point - but I cannot imagine a situation where I would find it just to convict someone of a felony based ONLY on the word of someone who claims they saw it happened, when the person testifying is, by definition, not an unbiased or objective observer.

And yes, I do realize this will result in a travesty of justice, in many situations. Just not sure how to resolve it.

I am arguing it ought to be possible to convict.

First I would tend to disregard the notion of a "unbiased observer" as simply not helpful.  Everyone has some kind of bias, and it seems rather unfair to label the victim of a crime as biased.  Certainly they have nothing tangible to gain by going to court.

Well, in the case of a potential rape, the issue of "fairness" becomes somewhat hard to sort out. Is it fair to call the victim biased? Of course it is - they have a lot to gain, if in fact they are bringing a false accusation - namely they get to toss someone they are mad at in jail. Back to the issue of the emotionality involved in rape cases.

And when it comes to "fairness", the law should in fact be more concerned with protecting the accused rather than the accuser. This is a rather basic tenet of western law, correct? The need for not just an abundance of evidence, but "beyond a reasonable doubt"?

In the end it ought to be left up to the trier of fact to sort out (the judge or the jury).  They will certainly consider the lack of corroboration, but if they find the victim sufficiently convincing why shouldn't they have the option of convicting?

because at the end of the day someones word is simply not adequate to throw someone in jail over, and justice should not be defined by whoever is more appealing at trial, or who can lie more effectively.

And I still do not agree that any evidence based *strictly* on the word of an interested party wihtout any kind of corroboration could ever rise to the level of "beyond a reasonable doubt".

Also, under the old rule I believe there was a lot of caselaw revolving around what was or was not corroboration.  Were ripped panties corroboration?  Was the victim screaming "help I'm being raped" corroboration?  This kind of technical analysis doesn't really get you very far.

Huh? I am not sure I understand - if someone heard someone yelling "I am being raped!" how could that NOT be corroboration?

The issue here that they are trying to get at is whether the sex was consensual or not, right?

Or whether or not the sex actually occurred - those are the two key facts, correct?

Again, I understand that my position is going to result in a lot of rapist getting away with it, and in fact the difficulty in getting convictions on rape charges has been historically well documented. I am glad we don't have that problem (as much) these days, since there is generally adequate physical evidence, and no presumption of innocence based on stupid shit like them being married or what she was wearing.

I guess I am playing devils advocate, and trying to put forth the argument that those stipulations do in fact make some sense, and are not necessarily simply misogynistic attempts to let men rape women.

[Berkut]

On a related note, anyone catch the 60 Minutes piece a cuppa two tree weeks back about a rape conviction based on mistaken identity and the severe fallibility of eyewitness testimony in general?

yep, I do recall that. They let some guy out of prison after a decade or something on DNA evidence, and they interviewed the victim who absolutely, positively identified the rapist and her testimony put him in jail.

Hell, I almost felt as badly for her - she seemed very upset at the entire thing. She said she was absolutely certain it was him, and was very sad to find out that she was wrong.

[Barrister]

Huh? I am not sure I understand - if someone heard someone yelling "I am being raped!" how could that NOT be corroboration?

Because it is evidence coming from the victim, and in particular is only the victim's own words.  Corroboration would seem to mean evidence that is external from the victim.

Like I said there was a lot of caselaw on the topic of what is or is not corroboration, and that whole issue was probably not helpful as is got away from the real issue of "did the accused rape the victim".

More a bit later.

[Malthus]

Do you guys study much English caselaw (in particular 19th century stuff)?

My favourite cases from 1st year crim law was the "is it murder to kill someone in a lifeboat and eat them if you're starving" case.

The 1987 attempt to extend that principle to getting stuck in an elevator however was not a success. 

[Admiral Yi]

The 1987 attempt to extend that principle to getting stuck in an elevator however was not a success. 

Can't win 'em all.

[Barrister]

And I still do not agree that any evidence based *strictly* on the word of an interested party wihtout any kind of corroboration could ever rise to the level of "beyond a reasonable doubt".

I was going to write more, but basically it revolves around this issue.

Decisions in court are made strictly on the word of an interested party all the time.  The way the system fundamentally works is that we throw all the relevant, material evidence before the trier of fact, and let them sort it out.

Why?  Because to do it any other way becomes a nightmare.  Otherwise you have to start coming up with all kinds of rules about what is corroboration or what isn't, what is an interested party and what isn't.  It all gets very technical and removes the focus from the real issue.

Now the rule on corroboration changed so long ago (early 80s) that I have no idea what constituted corroboration or not.  But is it really fair for one case to go to trial because the victim can present a ripped pair of panties (but no DNA), while the other does not merely because the panties were thrown out?  Does that serve the interests of justice?

But don't focus too much on these kind of arbitrary rules.  The lack of corroboration is very much an issue to be argued at trial.  Defense will definitely bang the table about that lack, and the jury will have to consider it.  But a hard rule on corroboration means some very worthwhile cases never even get to go to a jury.

[Faeelin]

How is rape any different from any other crime, where there is a burden of *proof* - and how can someone uncorroborated word ever rise to that burden?

My understanding is that people are convicted all the time based on the testimony of one witness. Is this wrong? Creating a higher standard for rape seems a bit odd.

I mean, sure, as a society we value the innocent. But given the other standards adopted at the same time, it seems like there's mysogyny at play here as well.

"Don't forget, women get weepy after sex."

[Barrister]

No one has suggested reducing the burden of proof on rape/sexual assault from the "proof BRD" standard.

[Siege]

For instance, section 213.1, on rape, states that "A male who has sexual intercourse with a female who is not his wife is guilty of rape if..."

That's right. At the time, forcing a wife to have sex with you was not a crime.

Why would a wife would not want to have sex with her husband?
Other than sickness, I can't imagine a situation like this.
Why are they married if they are not atrated to each other?

Marriage without sex is like a war without weapons.

[garbon]

Why would a wife would not want to have sex with her husband?
Other than sickness, I can't imagine a situation like this.
Why are they married if they are not atrated to each other?

Marriage without sex is like a war without weapons.

I could imagine that you might not want to / have time to have sex every time your spouse wants to have sex.