I was thinking that with DNA technology, it would be nearly impossible to get away with a actual violent rape, wouldn't it?
Assuming it is reported, of course. I wonder if the numbers have declined as a reuslt of the availability of technology to identify assailants.
BB - is my assumption accurate? If someone comes in and reports an actual violent rape (not a date rape kind of thing, where there could be some question about whether it was rape or not) of the masked guy grabbing someone and such, is that a pretty slam dunk case, assuming you have a suspect?
Quote from: Berkut on June 10, 2009, 03:17:41 PM
I was thinking that with DNA technology, it would be nearly impossible to get away with a actual violent rape, wouldn't it?
Assuming it is reported, of course. I wonder if the numbers have declined as a reuslt of the availability of technology to identify assailants.
BB - is my assumption accurate? If someone comes in and reports an actual violent rape (not a date rape kind of thing, where there could be some question about whether it was rape or not) of the masked guy grabbing someone and such, is that a pretty slam dunk case, assuming you have a suspect?
I would assume the problem is locating the suspect. If it is really a stranger, there may be nothing in the way of clues.
Quote from: Malthus on June 10, 2009, 03:19:30 PM
Quote from: Berkut on June 10, 2009, 03:17:41 PM
I was thinking that with DNA technology, it would be nearly impossible to get away with a actual violent rape, wouldn't it?
Assuming it is reported, of course. I wonder if the numbers have declined as a reuslt of the availability of technology to identify assailants.
BB - is my assumption accurate? If someone comes in and reports an actual violent rape (not a date rape kind of thing, where there could be some question about whether it was rape or not) of the masked guy grabbing someone and such, is that a pretty slam dunk case, assuming you have a suspect?
I would assume the problem is locating the suspect. If it is really a stranger, there may be nothing in the way of clues.
True, but that has always been a problem. Now at least if you can get a suspect, there is never going to be any question about whether that person actually had sex with that other person.
Are you assuming in this that most rapists are a) not stupid, or b) able to control their violent urges?
I would guess there are less rapes, uh, per capita than there have been historically. But there's more people. Probably places with failed states where things like pillaging still happen regularly like Africa have similar rates to Europe in the dark ages. I don't know.
Quote from: Caliga on June 10, 2009, 03:22:22 PM
Are you assuming in this that most rapists are a) not stupid, or b) able to control their violent urges?
Presumably if it is hard to get away with it more rapists will be locked up.
Quote from: Caliga on June 10, 2009, 03:22:22 PM
Are you assuming in this that most rapists are a) not stupid, or b) able to control their violent urges?
Well, I guess to some extent I am, but you raise a good point.
However, if in fact many rapists must rape regardless of whether they get caught or not, then presumably more would get caught and locked up or get wahtever help they need and hopefully stop raping people?
:yeah:
Violent crime overall has dropped in the last 30 or so years, but I don't recall if rape is following the overall trend or not. It's generally agreed as best as I can tell that social factors are more important in this trend than new crime-fighting technology.
I think rape is probably the same or higher actually.
Depending your definition of rape really. More acceptable to be out drinking at younger ages with the other sex etc.
A lot, more than half, of the females my age that I know have considered themselves to be raped, or have had an attempt.
*shrug*
Probably more, after all it comes in 40 lbs boxes these days.
Quote from: Alcibiades on June 10, 2009, 11:13:41 PM
A lot, more than half, of the females my age that I know have considered themselves to be raped, or have had an attempt.
Wtf that can't possibly be right. Unless lascivious glances are rape now.
Quote from: MadImmortalMan on June 10, 2009, 11:49:48 PM
Quote from: Alcibiades on June 10, 2009, 11:13:41 PM
A lot, more than half, of the females my age that I know have considered themselves to be raped, or have had an attempt.
Wtf that can't possibly be right. Unless lascivious glances are rape now.
I can't even guess as to percentages, but the huge majority of rapes are between people who know each other. Calling them a "date rape" is a term that seems to diminish the severity because usually they aren't on anything resembling a date, merely acquaintances or friends. But once the alcohol starts flowing one party starts to get ideas, and when there are no witnesses around...
Berkut, I don't know if what I'll call "stranger rape" is down or not. It was always a fairly unusual crime, the whole idea of the pervert lurking in the bushes. You do see a minority of offenders who are surprisingly prepared - you do get rapists who wear condoms and rubber gloves, and even shave off all body and public hair. But it has always been that most rape victims know the identity of their perpetrator.
But DNA does very little to help in the rapist known to the victim. Now occasionally we do get the rapist that foolishly denies ever having sex, so once the DNA comes back we can establish he's a liar and he's done for. But if he's "smart" he simply claims "I don't know, she wanted it that night". And with beyond a reasonable doubt its awfully hard to prove when its one word against another, no matter how unlikely it seems that the 17 year old girl would consent to have sex with the 44 year old man...
Somehow I don't think rapers are rational enough to factor DNA testing into consideration.
Quote from: Barrister on June 11, 2009, 12:28:11 AM
Quote from: MadImmortalMan on June 10, 2009, 11:49:48 PM
Quote from: Alcibiades on June 10, 2009, 11:13:41 PM
A lot, more than half, of the females my age that I know have considered themselves to be raped, or have had an attempt.
Wtf that can't possibly be right. Unless lascivious glances are rape now.
I can't even guess as to percentages, but the huge majority of rapes are between people who know each other. Calling them a "date rape" is a term that seems to diminish the severity because usually they aren't on anything resembling a date, merely acquaintances or friends. But once the alcohol starts flowing one party starts to get ideas, and when there are no witnesses around...
Berkut, I don't know if what I'll call "stranger rape" is down or not. It was always a fairly unusual crime, the whole idea of the pervert lurking in the bushes. You do see a minority of offenders who are surprisingly prepared - you do get rapists who wear condoms and rubber gloves, and even shave off all body and public hair. But it has always been that most rape victims know the identity of their perpetrator.
But DNA does very little to help in the rapist known to the victim. Now occasionally we do get the rapist that foolishly denies ever having sex, so once the DNA comes back we can establish he's a liar and he's done for. But if he's "smart" he simply claims "I don't know, she wanted it that night". And with beyond a reasonable doubt its awfully hard to prove when its one word against another, no matter how unlikely it seems that the 17 year old girl would consent to have sex with the 44 year old man...
Yeah, this is pretty much what I thought would be the case.
I suppose the only group of perps who would have their lives made more difficult because of DNA searches are repeated offenders, whose DNA is already on the records, and who are careless/ about what they do.
Quote from: dps on June 10, 2009, 08:53:56 PM
Violent crime overall has dropped in the last 30 or so years, but I don't recall if rape is following the overall trend or not. It's generally agreed as best as I can tell that social factors are more important in this trend than new crime-fighting technology.
Yeah, I would assume there are less unreported, unprosecuted rapes between non-strangers (including spouses), because social awareness of rape and sexual abuse has changed immensely over the last 50 years or so.
I would be surprised if the rates of "stranger rape" went down, though.
Quote from: MadImmortalMan on June 10, 2009, 11:49:48 PM
Quote from: Alcibiades on June 10, 2009, 11:13:41 PM
A lot, more than half, of the females my age that I know have considered themselves to be raped, or have had an attempt.
Wtf that can't possibly be right. Unless lascivious glances are rape now.
He said "or have had an attempt". A girl slapping or pushing away an over-eager drunk guy at a party would count then.
dunno. I do know some countries are getting better at rape statistics.but there are a few methodological problems, including false reporting, underreporting and yeah, definition.
accordingly, Canada is 2nd/per 100,000 pop in rapes worldwide:
http://en.wikipedia.org/wiki/Rape_statistics
Quote from: saskganesh on June 11, 2009, 10:48:00 AM
dunno. I do know some countries are getting better at rape statistics.but there are a few methodological problems, including false reporting, underreporting and yeah, definition.
accordingly, Canada is 2nd/per 100,000 pop in rapes worldwide:
http://en.wikipedia.org/wiki/Rape_statistics (http://en.wikipedia.org/wiki/Rape_statistics)
Those are pretty old.
IIRC, there were about 12500 recorded in Sweden in 2007 which means 138/100,000
Same as South Africa. Hilarious. :lol:
Edit: Woops. Wrong. Let me recheck..
No, there were 14500 "sexual crimes" of which 5600 were rapes. Statistics agency reports 57 per 100,000.
Of which 262 led to sentencing.
Love it.
we have such pleasant topics on Languish. :p I think the Real world is less CSI-ish than we thinnk.
Quote from: Martinus on June 11, 2009, 04:00:16 AM
He said "or have had an attempt". A girl slapping or pushing away an over-eager drunk guy at a party would count then.
Cool when I have had drunk women draping themselves on me and grabbing my ass in bars can I count that as being raped also? <_<
Because that would be sad.
I am sure they mean that the dude tried to do something more substantial than that, because otherwise it just means they hang out with drunk people.
Quote from: Valmy on June 11, 2009, 11:28:30 AM
Cool when I have had drunk women draping themselves on me and grabbing my ass in bars can I count that as being raped also? <_<
Because that would be sad.
I am sure they mean that the dude tried to do something more substantial than that, because otherwise it just means they hang out with drunk people.
As Camille Paglia has said, girls are now trained to cry rape at the drop of a dime. Had a sexual encounter that you feel guilty or awkward about afterwards? You must have been raped!
On a related note, Princesca is training to be a crisis counselor for chicks or some crap like that right now for some volunteer agency here. The other night she attended a talk given by a woman who claimed to be a rape survivor, and she was all "she's totally making that up". :)
I don't remember all the details, but apparently she claimed she was at a bar and some guy GHBed her and took her out back and raped her in the bushes for like 7 hours, and then he tried to get away but his car wouldn't start, so when she called 911 from her cell he was like "I'll wait here for the cops to arrive so they can help me with my car". When they got there she told them what happened but she said they laughed at her and didn't believe her, and instead of taking her to the police station to get rape kit tested, they took her to Waffle House. :blink: :blink: :blink:
Quote from: garbon on June 11, 2009, 12:13:15 PM
Quote from: Valmy on June 11, 2009, 11:28:30 AM
Cool when I have had drunk women draping themselves on me and grabbing my ass in bars can I count that as being raped also? <_<
Because that would be sad.
I am sure they mean that the dude tried to do something more substantial than that, because otherwise it just means they hang out with drunk people.
As Camille Paglia has said, girls are now trained to cry rape at the drop of a dime. Had a sexual encounter that you feel guilty or awkward about afterwards? You must have been raped!
That's the kind of thing Camille Paglia says to get attention.
What do you call it when there's a house party and everyone's drinking heavily. The girl wakes up with her panties in the corner and semen dripping down her leg. She doesn't have a boyfriend, doesn't remember sleeping with anyone, and yet DNA tests reveal that it was her step-uncle.
Step-uncle says "sure she was drunk, but not that bad and she totally came on to me and did a little strip dance in front of me first".
That's a little more than feeling awkward about sex.
But rather considerably less than a provable case of rape. For all you know, he is telling the truth.
Quote from: Barrister on June 11, 2009, 12:49:29 PM
What do you call it when there's a house party and everyone's drinking heavily. The girl wakes up with her panties in the corner and semen dripping down her leg. She doesn't have a boyfriend, doesn't remember sleeping with anyone, and yet DNA tests reveal that it was her step-uncle.
Step-uncle says "sure she was drunk, but not that bad and she totally came on to me and did a little strip dance in front of me first".
That's a little more than feeling awkward about sex.
How do you know she didn't willingly participate in it but then felt guilty afterwards?
Quote from: Berkut on June 11, 2009, 12:50:34 PM
But rather considerably less than a provable case of rape. For all you know, he is telling the truth.
That's a perfectly fine case of sex assault and I'd feel comfortable running it.
Quote from: garbon on June 11, 2009, 12:52:00 PM
Quote from: Barrister on June 11, 2009, 12:49:29 PM
What do you call it when there's a house party and everyone's drinking heavily. The girl wakes up with her panties in the corner and semen dripping down her leg. She doesn't have a boyfriend, doesn't remember sleeping with anyone, and yet DNA tests reveal that it was her step-uncle.
Step-uncle says "sure she was drunk, but not that bad and she totally came on to me and did a little strip dance in front of me first".
That's a little more than feeling awkward about sex.
How do you know she didn't willingly participate in it but then felt guilty afterwards?
That's why I threw in the step-uncle - someone she would never have consented to sex to (or so she says), and not some cute boy she's always had a crush on...
Quote from: Berkut on June 11, 2009, 12:50:34 PM
But rather considerably less than a provable case of rape. For all you know, he is telling the truth.
Absent some other reason to believe the step-uncle or the girl's word over the other, yes.
Still doesn't mean there wasn't a rape (or a consensual sexual encounter; hypothesize at will).
Quote from: Barrister on June 11, 2009, 12:53:43 PM
Quote from: Berkut on June 11, 2009, 12:50:34 PM
But rather considerably less than a provable case of rape. For all you know, he is telling the truth.
That's a perfectly fine case of sex assault and I'd feel comfortable running it.
Wow. Gives a lot of power to women to utterly ruin the life of any man she chooses.
How do you know she didn't assault him? Maybe you should run with that one.
Quote from: Barrister on June 11, 2009, 12:54:47 PM
That's why I threw in the step-uncle - someone she would never have consented to sex to (or so she says), and not some cute boy she's always had a crush on...
:huh:
I don't see how that's the case at all. Her step-uncle could be "some cute guy" that she had a crush on. Someone else could have seen what happened or heard about it after the fact from her and rather than face up to the embarrassing reality, she plays the rape card.
Quote from: Berkut on June 11, 2009, 12:59:16 PM
Wow. Gives a lot of power to women to utterly ruin the life of any man she chooses.
Gives a lot of power to women to utterly ruin the life of any man she has sex with. Pretty sure that's been the case for a while. Ask Fahdiz.
If all DAs are this willing to try to throw people in jail on so little actual evidence, I am starting to think Stonewall is right.
Quote from: Berkut on June 11, 2009, 12:59:16 PM
Wow. Gives a lot of power to women to utterly ruin the life of any man she chooses.
How do you know she didn't assault him? Maybe you should run with that one.
Rape is a crime that overwhelmingly happens behind closed doors with no witnesses. If you required absolute proof (which is not a requirement for any crime) then you're give free reign to rapists.
There's no requirement for corroboration for rape, or for any other crime.
Quote from: Berkut on June 11, 2009, 01:03:33 PM
If all DAs are this willing to try to throw people in jail on so little actual evidence, I am starting to think Stonewall is right.
DAs present cases. Judges and juries throw people in jail.
I said I'd be comfortable running the case. Who knows what the outcome might be.
Quote from: Barrister on June 11, 2009, 01:03:42 PM
There's no requirement for corroboration for rape, or for any other crime.
Maybe in your backwards Canadian system.
Quote from: US Constitution, Article III, Section 3Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
Quote from: Berkut on June 11, 2009, 12:59:16 PM
Quote from: Barrister on June 11, 2009, 12:53:43 PM
Quote from: Berkut on June 11, 2009, 12:50:34 PM
But rather considerably less than a provable case of rape. For all you know, he is telling the truth.
That's a perfectly fine case of sex assault and I'd feel comfortable running it.
Wow. Gives a lot of power to women to utterly ruin the life of any man she chooses.
How do you know she didn't assault him? Maybe you should run with that one.
You seem to operate under an assumption that a drunk man is unable to control his urges or assess (in)appropriateness of his actions, as soon as the woman implies consent. That's as ridiculous as the assertion that "women are always victims" you seem to be fighting here.
Quote from: Barrister on June 11, 2009, 01:03:42 PM
Quote from: Berkut on June 11, 2009, 12:59:16 PM
Wow. Gives a lot of power to women to utterly ruin the life of any man she chooses.
How do you know she didn't assault him? Maybe you should run with that one.
Rape is a crime that overwhelmingly happens behind closed doors with no witnesses. If you required absolute proof (which is not a requirement for any crime) then you're give free reign to rapists.
There's no requirement for corroboration for rape, or for any other crime.
Who said anything about "absolute proof"? That is your strawman.
There is something between "absolute proof" and "beyond a reasonable doubt" you know. At least, I hope you know.
And yeah, rape is a bitch to prove even when it does happen. But we have this idea in the Western legal tradition - we would rather let ten guilty men go free than throw one innocent man in jail.
Quote from: Barrister on June 11, 2009, 01:04:26 PM
Quote from: Berkut on June 11, 2009, 01:03:33 PM
If all DAs are this willing to try to throw people in jail on so little actual evidence, I am starting to think Stonewall is right.
DAs present cases. Judges and juries throw people in jail.
I said I'd be comfortable running the case. Who knows what the outcome might be.
uggh, so there is no onus on the DA to actually think that case has merit and the person in question is in fact guilty beyond a reasonable doubt?
Because there is a lot more involved here than just a trial. The suspect will eb arrested and put in jail in all likelihood before that even happens.
Quote from: Martinus on June 11, 2009, 01:06:14 PM
Quote from: Berkut on June 11, 2009, 12:59:16 PM
Quote from: Barrister on June 11, 2009, 12:53:43 PM
Quote from: Berkut on June 11, 2009, 12:50:34 PM
But rather considerably less than a provable case of rape. For all you know, he is telling the truth.
That's a perfectly fine case of sex assault and I'd feel comfortable running it.
Wow. Gives a lot of power to women to utterly ruin the life of any man she chooses.
How do you know she didn't assault him? Maybe you should run with that one.
You seem to operate under an assumption that a drunk man is unable to control his urges or assess (in)appropriateness of his actions, as soon as the woman implies consent. That's as ridiculous as the assertion that "women are always victims" you seem to be fighting here.
I agree that prosecuting her for rape based on nothing more than his word is just as ridiculous as prosecuting him for rape based on nothing more than her word - and in this case, it isn't even her word that she was raped, since BB has posited that she doesn't actually remember ever telling him no - she remembers nothing.
Quote from: Berkut on June 11, 2009, 01:06:23 PM
we have this idea in the Western legal tradition - we would rather let ten guilty men go free than throw one innocent man in jail.
Actually, one to one thousand guilty men depending on your source.
http://www.law.ucla.edu/volokh/guilty.htm
Quote from: Barrister on June 11, 2009, 01:03:42 PM
I said I'd be comfortable running the case. Who knows what the outcome might be.
So you are comfortable running cases where you "don't know what the outcome might be", or in other words a case that you are not even certain yourself that the person is guilty?
Quote from: Martinus on June 11, 2009, 01:06:14 PM
You seem to operate under an assumption that a drunk man is unable to control his urges or assess (in)appropriateness of his actions, as soon as the woman implies consent. That's as ridiculous as the assertion that "women are always victims" you seem to be fighting here.
Having sex with a woman who gave consent is not rape or a crime, even if it is pretty damn dishonorable and scummy when she is drunk but hey we are not all angels.
How is it ridiculous to claim otherwise?
Quote from: Valmy on June 11, 2009, 01:12:04 PM
Having sex with a woman who gave consent is not rape or a crime, even if it is pretty damn dishonorable and scummy when she is drunk
Ehh, if both of you are drunk, doesn't it cancel out?
Quote from: Berkut on June 11, 2009, 01:06:23 PM
But we have this idea in the Western legal tradition - we would rather let ten guilty men go free than throw one innocent man in jail.
:lol:
That's old news. These days, shit happens.
After all, it's not like you're arguing with some guy from Russia or Rhodesia or something. I would imagine that BB has a much better idea of the current state of Western legal thought than you do.
Quote from: Berkut on June 11, 2009, 01:07:53 PM
Quote from: Barrister on June 11, 2009, 01:04:26 PM
Quote from: Berkut on June 11, 2009, 01:03:33 PM
If all DAs are this willing to try to throw people in jail on so little actual evidence, I am starting to think Stonewall is right.
DAs present cases. Judges and juries throw people in jail.
I said I'd be comfortable running the case. Who knows what the outcome might be.
uggh, so there is no onus on the DA to actually think that case has merit and the person in question is in fact guilty beyond a reasonable doubt?
Because there is a lot more involved here than just a trial. The suspect will eb arrested and put in jail in all likelihood before that even happens.
My test to prosecute is that there is a "reasonable prospect of conviction" and it must be "in the public interest".
This is a fairly common problem. You have a complainant who gives a very credible and believable version of events. You have an accused who gives a suspect version of events, but there is no objective evidence that can absolutely disprove it.
Thats the kind of case that is begging to be run through to trial. Put everyone up on the stand, listen to their versions first hand, then decide what happened.
Of course I'm aware of the standard of beyond a reasonable doubt. But that is the standard for conviction, not to begin a prosecution. All I need to be satisfied is that there is sufficient evidence that the trier of fact could find the accused guilty.
I used the term "absolute proof" because I'm not quite sure how you think the system should work Berkut. What kind of evidence do you think should be required in order to charge?
Quote from: Berkut on June 11, 2009, 01:10:28 PM
Quote from: Barrister on June 11, 2009, 01:03:42 PM
I said I'd be comfortable running the case. Who knows what the outcome might be.
So you are comfortable running cases where you "don't know what the outcome might be", or in other words a case that you are not even certain yourself that the person is guilty?
Strawman alert!
Quote from: ulmont on June 11, 2009, 01:13:08 PM
Ehh, if both of you are drunk, doesn't it cancel out?
Sure.
Quote from: Valmy on June 11, 2009, 01:14:51 PM
Quote from: ulmont on June 11, 2009, 01:13:08 PM
Ehh, if both of you are drunk, doesn't it cancel out?
Sure.
What if she's more drunk than you are, or you're more drunk than she is?
Stop being such a goof.
Quote from: Valmy on June 11, 2009, 01:12:04 PM
Quote from: Martinus on June 11, 2009, 01:06:14 PM
You seem to operate under an assumption that a drunk man is unable to control his urges or assess (in)appropriateness of his actions, as soon as the woman implies consent. That's as ridiculous as the assertion that "women are always victims" you seem to be fighting here.
Having sex with a woman who gave consent is not rape or a crime, even if it is pretty damn dishonorable and scummy when she is drunk but hey we are not all angels.
How is it ridiculous to claim otherwise?
If she is too drunk to give an informed consent, it's still rape.
Of course there is always a blurred line between "beer goggles" and a situation in which the level of toxication excludes an informed consent, but caveat fucker.
Quote from: Neil on June 11, 2009, 01:16:25 PM
What if she's more drunk than you are, or you're more drunk than she is?
Whatever.
Quote from: Martinus on June 11, 2009, 01:16:56 PM
If she is too drunk to give an informed consent, it's still rape.
It is a crime to have sex with somebody who gets drunk?
Quote from: Berkut on June 11, 2009, 01:09:10 PM
Quote from: Martinus on June 11, 2009, 01:06:14 PM
Quote from: Berkut on June 11, 2009, 12:59:16 PM
Quote from: Barrister on June 11, 2009, 12:53:43 PM
Quote from: Berkut on June 11, 2009, 12:50:34 PM
But rather considerably less than a provable case of rape. For all you know, he is telling the truth.
That's a perfectly fine case of sex assault and I'd feel comfortable running it.
Wow. Gives a lot of power to women to utterly ruin the life of any man she chooses.
How do you know she didn't assault him? Maybe you should run with that one.
You seem to operate under an assumption that a drunk man is unable to control his urges or assess (in)appropriateness of his actions, as soon as the woman implies consent. That's as ridiculous as the assertion that "women are always victims" you seem to be fighting here.
I agree that prosecuting her for rape based on nothing more than his word is just as ridiculous as prosecuting him for rape based on nothing more than her word - and in this case, it isn't even her word that she was raped, since BB has posited that she doesn't actually remember ever telling him no - she remembers nothing.
If she remembers nothing, then chances are she was unable to give an informed consent.
The thing is, an intoxicated person can still commit a crime, if the intoxication was not "abnormal" (i.e. not something a reasonable person could expect given the amount of drink consumed) - so the fact that the man is intoxicated not impair his judgement normally should not exclude his guilt.
On the other hand, an ability to give an informed consent can be and is impaired by significant intoxication.
Quote from: Valmy on June 11, 2009, 01:19:03 PM
It is a crime to have sex with somebody who gets drunk?
No, it only matters if the drunk person feels bad enough about it afterwards.
Quote from: Valmy on June 11, 2009, 01:19:03 PM
Quote from: Martinus on June 11, 2009, 01:16:56 PM
If she is too drunk to give an informed consent, it's still rape.
It is a crime to have sex with somebody who gets drunk?
It is potentially a crime, yes. Anyone who does that is taking a risk that he is committing a crime.
Quote from: Barrister on June 11, 2009, 01:13:57 PM
Quote from: Berkut on June 11, 2009, 01:07:53 PM
Quote from: Barrister on June 11, 2009, 01:04:26 PM
Quote from: Berkut on June 11, 2009, 01:03:33 PM
If all DAs are this willing to try to throw people in jail on so little actual evidence, I am starting to think Stonewall is right.
DAs present cases. Judges and juries throw people in jail.
I said I'd be comfortable running the case. Who knows what the outcome might be.
uggh, so there is no onus on the DA to actually think that case has merit and the person in question is in fact guilty beyond a reasonable doubt?
Because there is a lot more involved here than just a trial. The suspect will eb arrested and put in jail in all likelihood before that even happens.
My test to prosecute is that there is a "reasonable prospect of conviction" and it must be "in the public interest".
This is a fairly common problem. You have a complainant who gives a very credible and believable version of events. You have an accused who gives a suspect version of events, but there is no objective evidence that can absolutely disprove it.
Thats the kind of case that is begging to be run through to trial. Put everyone up on the stand, listen to their versions first hand, then decide what happened.
Of course I'm aware of the standard of beyond a reasonable doubt. But that is the standard for conviction, not to begin a prosecution. All I need to be satisfied is that there is sufficient evidence that the trier of fact could find the accused guilty.
I used the term "absolute proof" because I'm not quite sure how you think the system should work Berkut. What kind of evidence do you think should be required in order to charge?
Yeah, prosecutor is not a judge. It's his job to bring cases before the court, not to rule on them.
Quote from: Neil on June 11, 2009, 01:14:13 PM
Quote from: Berkut on June 11, 2009, 01:10:28 PM
Quote from: Barrister on June 11, 2009, 01:03:42 PM
I said I'd be comfortable running the case. Who knows what the outcome might be.
So you are comfortable running cases where you "don't know what the outcome might be", or in other words a case that you are not even certain yourself that the person is guilty?
Strawman alert!
In this case no. I present cases. What my personal opinion might be is irrelevant. The test is whether there is a reasonable prospect of conviction.
Now I guess it does factor in that if I'm convinced someone is guilty how can you think there's a reasonable prospect of conviction, which is fair. But otherwise - I'm not the judge.
I think Valmy is disturbed that his #1 college seduction routine might have been legally considered rape. :P
Quote from: Jaron on June 11, 2009, 01:28:52 PM
I think Valmy is disturbed that his #1 college seduction routine might have been legally considered rape. :P
LOL he does seem to protest too much.
Anyway, there goes my fire-proof way of seducing a straight guy, too. :P
Quote from: Neil on June 11, 2009, 01:13:23 PM
After all, it's not like you're arguing with some guy from Russia or Rhodesia or something. I would imagine that BB has a much better idea of the current state of Western legal thought than you do.
Outside debates like this, I would be inclined to agree. When he says he would be willing to prosecute someone for rape when the victim does not even remember being raped, I wonder.
Quote from: Martinus on June 11, 2009, 01:21:54 PM
Quote from: Valmy on June 11, 2009, 01:19:03 PM
Quote from: Martinus on June 11, 2009, 01:16:56 PM
If she is too drunk to give an informed consent, it's still rape.
It is a crime to have sex with somebody who gets drunk?
It is potentially a crime, yes. Anyone who does that is taking a risk that he is committing a crime.
Well I could see it if you have sex with somebody who is passed out but asking somebody to make the call when somebody is coming onto them on how intoxicated the other person is? Why should other people be held responsible for the bad decisions somebody makes when they are drunk?
Maybe people shouldn't get so drunk they start propositioning sex with people.
Quote from: Martinus on June 11, 2009, 01:29:43 PM
LOL he does seem to protest too much.
Anyway, there goes my fire-proof way of seducing a straight guy, too. :P
I have never ever had sex with a drunk person. I have a rule about that.
It is pretty easy anyway drunk chicks are pretty gross to me.
Quote from: Martinus on June 11, 2009, 01:29:43 PM
Quote from: Jaron on June 11, 2009, 01:28:52 PM
I think Valmy is disturbed that his #1 college seduction routine might have been legally considered rape. :P
LOL he does seem to protest too much.
Anyway, there goes my fire-proof way of seducing a straight guy, too. :P
What do you do? Get them drunk, tie them down and violate their toes?
Quote from: Jaron on June 11, 2009, 01:28:52 PM
I think Valmy is disturbed that his #1 college seduction routine might have been legally considered rape. :P
I was a virgin until a few months out of college :blush:
College sucked ass for me. One of the worst and most boring times in my life.
Quote from: Martinus on June 11, 2009, 01:20:35 PM
If she remembers nothing, then chances are she was unable to give an informed consent.
The thing is, an intoxicated person can still commit a crime, if the intoxication was not "abnormal" (i.e. not something a reasonable person could expect given the amount of drink consumed) - so the fact that the man is intoxicated not impair his judgement normally should not exclude his guilt.
On the other hand, an ability to give an informed consent can be and is impaired by significant intoxication.
The law is different here. There's no "informed consent" - either there is consent or there is not. A person might be so intoxicated they are unable to consent, but that only comes up with unconscious or barely coherent victims.
Intoxication as a defense to the act is almost completely eliminated. It may continue to apply to some specific intent offences, but rape is a general intent offences and thus self-induced intoxication can not be a defence. Being drugged against your will is a different story...
Quote from: Barrister on June 11, 2009, 01:33:46 PM
The law is different here. There's no "informed consent" - either there is consent or there is not. A person might be so intoxicated they are unable to consent, but that only comes up with unconscious or barely coherent victims.
This strikes me as the only just way of doing this. Requiring everybody to refuse sex as soon as somebody starts drinking by law is ridiculous.
The only standard for bringing a case is the reasonable chance of a conviction?
No ethics involved in this, no discretion, no judgement on your part?
So lets see - you have a case where in fact you know that the accused did not commit the crime, but at the same time, you are pretty sure you can convict them anyway. You would try that case, since "you are not the judge" and as long as you have a reasonable chance of conviction you are bound to bring it?
In other words, as long as you think you can convince a jury to return a guilty plea, whether the person actually did anything isn't really all that important?
Quote from: Berkut on June 11, 2009, 01:29:44 PM
Quote from: Neil on June 11, 2009, 01:13:23 PM
After all, it's not like you're arguing with some guy from Russia or Rhodesia or something. I would imagine that BB has a much better idea of the current state of Western legal thought than you do.
Outside debates like this, I would be inclined to agree. When he says he would be willing to prosecute someone for rape when the victim does not even remember being raped, I wonder.
Why would you wonder? That's the guy's job. Drinking and raping are the only things to do in the Yukon.
Quote from: Berkut on June 11, 2009, 01:35:27 PM
No ethics involved in this, no discretion, no judgement on your part?
The other part of the test in 'in the public interest' so yes there are.
Quote from: Barrister on June 11, 2009, 01:33:46 PM
Quote from: Martinus on June 11, 2009, 01:20:35 PM
If she remembers nothing, then chances are she was unable to give an informed consent.
The thing is, an intoxicated person can still commit a crime, if the intoxication was not "abnormal" (i.e. not something a reasonable person could expect given the amount of drink consumed) - so the fact that the man is intoxicated not impair his judgement normally should not exclude his guilt.
On the other hand, an ability to give an informed consent can be and is impaired by significant intoxication.
The law is different here. There's no "informed consent" - either there is consent or there is not. A person might be so intoxicated they are unable to consent, but that only comes up with unconscious or barely coherent victims.
Intoxication as a defense to the act is almost completely eliminated. It may continue to apply to some specific intent offences, but rape is a general intent offences and thus self-induced intoxication can not be a defence. Being drugged against your will is a different story...
But if the accuser was drunk, even so drunk that they do not even remember the act, what they said, what they did, nothing, then that doesn't matter - as long as the accuser says afterwards that they do not *think* they would have consented, that is sufficient to charge someone with a crime like rape?
Quote from: Martinus on June 11, 2009, 01:16:56 PM
Quote from: Valmy on June 11, 2009, 01:12:04 PM
Quote from: Martinus on June 11, 2009, 01:06:14 PM
You seem to operate under an assumption that a drunk man is unable to control his urges or assess (in)appropriateness of his actions, as soon as the woman implies consent. That's as ridiculous as the assertion that "women are always victims" you seem to be fighting here.
Having sex with a woman who gave consent is not rape or a crime, even if it is pretty damn dishonorable and scummy when she is drunk but hey we are not all angels.
How is it ridiculous to claim otherwise?
If she is too drunk to give an informed consent, it's still rape.
Of course there is always a blurred line between "beer goggles" and a situation in which the level of toxication excludes an informed consent, but caveat fucker.
Of course, if you're drunk, you can't consent to sex either, so what would have been regular sex becomes two counts of rape.
Maybe we should just decriminalize rape.
Quote from: Berkut on June 11, 2009, 01:35:27 PM
The only standard for bringing a case is the reasonable chance of a conviction?
No ethics involved in this, no discretion, no judgement on your part?
So lets see - you have a case where in fact you know that the accused did not commit the crime, but at the same time, you are pretty sure you can convict them anyway. You would try that case, since "you are not the judge" and as long as you have a reasonable chance of conviction you are bound to bring it?
In other words, as long as you think you can convince a jury to return a guilty plea, whether the person actually did anything isn't really all that important?
How do I "know" that the accused didn't commit the crime? If there's hard evidence proving the person's guilt I have an obligation to disclose that to defense, and therefore I can't see how there would be a reasonable prospect of conviction.
Are you saying if it was merely my opinion? Would I prosecute someone who I think is innocent, or who I just have no opinion on? Yes. My opinion, as long as its mere opinion, is largely irrelevant. I am not a second judge. I have a duty to present cases to the trier of fact. It is not my job to get convictions, it is my job to present cases.
But this is touchy stuff. Why would I think the person is innocent? If it is because the complainant gives a sketchy version, and I think the judge will have trouble swallowing it, then maybe there's no reasonable prospect of conviction.
But I have to keep going back to the prospect of conviction test.
BB, if someone has a history of claiming rape can defense bring that up at trial?
What if you were practicing in the south 30 years ago and the accused was a black man that you were reasonably certain was innocent, but that a jury would probably convict anyway?
Quote from: Berkut on June 11, 2009, 01:29:44 PM
Quote from: Neil on June 11, 2009, 01:13:23 PM
After all, it's not like you're arguing with some guy from Russia or Rhodesia or something. I would imagine that BB has a much better idea of the current state of Western legal thought than you do.
Outside debates like this, I would be inclined to agree. When he says he would be willing to prosecute someone for rape when the victim does not even remember being raped, I wonder.
A case like that can be one of our strongest cases. See the discussion above - someone who is unconscious can not consent. So as long as we have DNA proving sex that is.
I have a weird open file like that. Woman wakes up the next morning. She is wearing pants, but not the panties she went to bed with. They find the panties in an outside garbage can. She does not remember having sex with anyone, but is convinced she was raped. I am a little sceptical myself, but the rape kit is done and semen is detected. It's not her boyfriend. We identiy one other person in the house as a suspect. DNA exonerates him.
File is still open, with no further suspect identified. But if we get a DNA match on someone their conviction is almost guaranteed.
Quote from: HVC on June 11, 2009, 01:55:22 PM
BB, if someone has a history of claiming rape can defense bring that up at trial?
Depends on what you mean "claiming rape" I suppose.
If someone had a history of claiming rape, but then recanted, yes absolutely.
But otherwise, well no, not likely. How can you tell she wasn't raped in the past? Honestly someone who puts themselves in a vulnerable position to be raped is likely to put themselves in that situation multiple times.
Quote from: Barrister on June 11, 2009, 01:49:10 PM
Quote from: Berkut on June 11, 2009, 01:35:27 PM
The only standard for bringing a case is the reasonable chance of a conviction?
No ethics involved in this, no discretion, no judgement on your part?
So lets see - you have a case where in fact you know that the accused did not commit the crime, but at the same time, you are pretty sure you can convict them anyway. You would try that case, since "you are not the judge" and as long as you have a reasonable chance of conviction you are bound to bring it?
In other words, as long as you think you can convince a jury to return a guilty plea, whether the person actually did anything isn't really all that important?
How do I "know" that the accused didn't commit the crime? If there's hard evidence proving the person's guilt I have an obligation to disclose that to defense, and therefore I can't see how there would be a reasonable prospect of conviction.
Who knows. Maybe the evidence isn't that hard - or that it is not admissable, or you are certain you could get it thrown out or ignored by the jury.
Quote
Are you saying if it was merely my opinion? Would I prosecute someone who I think is innocent, or who I just have no opinion on? Yes. My opinion, as long as its mere opinion, is largely irrelevant. I am not a second judge. I have a duty to present cases to the trier of fact. It is not my job to get convictions, it is my job to present cases.
Wow, for someone whose job doesn't involve getting convictions, you sure seem to worry a lot about getting convictions, as does every other DA I have ever known - but then, I can't say I've met one who would say that they think they should imprison and try people based on the word of someone who cannot even remember a crime being committed.
Quote
But this is touchy stuff. Why would I think the person is innocent? If it is because the complainant gives a sketchy version, and I think the judge will have trouble swallowing it, then maybe there's no reasonable prospect of conviction.
Why? Nice emotive victim, maybe the accused is a big asshole with a record, whatever. The justice system is not so perfect that it is all that hard to come up with a scenario.
I don't think it should be that touchy - a DA is a representative of the State, and as such, IMO, has an obligation to "play fair" and be reasonable not shared by the defense. The idea that the DA should just present cases, whether the evidence is reasonable or not is rather distressing, considering the damage done by even the formal accusation and trial.
Quote
But I have to keep going back to the prospect of conviction test.
A necessary, but not sufficient, condition to indicting, IMO.
I'm not quite sure what to tell you Berkut. I'm just trying to repeat what the law and policy is.
Maybe I should just link it to you:
http://www.ppsc-sppc.gc.ca/eng/fps-sfp/fpd/ch15.html
Some exceprts:
Quote15.3.1 Sufficiency of the Evidence
In the assessment of the evidence, a bare prima facie case is not enough; the evidence must demonstrate that there is a reasonable prospect of conviction. This decision requires an evaluation of how strong the case is likely to be when presented at trial. This evaluation should be made on the assumption that the trier of fact will act impartially and according to law.
A proper assessment of the evidence will take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the trier of fact, as well as the admissibility of evidence implicating the accused. Crown counsel should also consider any defences that are plainly open to or have been indicated by the accused, and any other factors which could affect the prospect of a conviction; for example, the existence of a Charter violation that will undoubtedly lead to the exclusion of evidence essential to sustain a conviction. Crown counsel must also zealously guard against the possibility that they have been afflicted by "tunnel vision," 4 through close contact with the investigative agency, colleagues or victims, such that the assessment is insufficiently rigorous and objective.
Quote15.4 Irrelevant Criteria
the race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities or beliefs of the accused or any other person involved in the investigation;
Crown counsel's personal feelings about the accused or the victim;
possible political advantage or disadvantage to the government or any political group or party; or
the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.
You seem to (and correct me if I'm wrong) over-react to certain things I am saying. I say that my personal opinion of the case doesn't matter, and you conclude I'll run cases where I know the accused is innocent. I say I may run a case with an unconscious victim, and you conclude that is improper.
There are few absolutes in this business. All I can do, and in every case, is match the evidence against the criteria in the Deskbook.
By the way one of the few absolutes that does exist is s. 274 of the Criminal Code, which states that when charged with a sex offence "no corroboration is required for a conviction and a judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration".
Define corroboration for me here.
So is this an open and shut case - she says she was raped, even if she doesn't remember, so she was raped? Far from being astounded that you would bring such a weak case, in fact this is almost airtight, since "no cooroboration" is needed?
I would argue (froma laymans perspective, of course) that charging someone with rape under the circumstances you described would betray a tunnel vision and lack of rigiorous assessment. You said you did not know if you would get a conviction - nor is it your job to determine that - but the book very much says you should have a reasonable chance of conviction, which seems to rather clearly state that you should have a pretty good reason to think they actually committed a crime - ie some actual evidence that a crime was committed.
Your example specifically precludes any actual evidence of a crime - the victim does not even claim she recalls the crime. You only evidence is that she says she doesn't THINK she would consent.
I am rather dumbfounded that that could meet the criteria you just stated, unless in fact it is teh case that the only thinkg you need to get a rape conviction is a victim claiming they think they might have been raped, but even they don't know!
Back in an hour or so - off to court.
Quote from: Berkut on June 11, 2009, 02:32:27 PM
Define corroboration for me here.
So is this an open and shut case - she says she was raped, even if she doesn't remember, so she was raped? Far from being astounded that you would bring such a weak case, in fact this is almost airtight, since "no cooroboration" is needed?
I would argue (froma laymans perspective, of course) that charging someone with rape under the circumstances you described would betray a tunnel vision and lack of rigiorous assessment. You said you did not know if you would get a conviction - nor is it your job to determine that - but the book very much says you should have a reasonable chance of conviction, which seems to rather clearly state that you should have a pretty good reason to think they actually committed a crime - ie some actual evidence that a crime was committed.
Your example specifically precludes any actual evidence of a crime - the victim does not even claim she recalls the crime. You only evidence is that she says she doesn't THINK she would consent.
I am rather dumbfounded that that could meet the criteria you just stated, unless in fact it is teh case that the only thinkg you need to get a rape conviction is a victim claiming they think they might have been raped, but even they don't know!
I think you are missing the point - it doesn't say corroperative evidence is
never to be used but merely that corroboration isn't
required in all cases. That merely means that in a "she said/he said" situation, he doesn't
automatically walk free if she can't produce some witness or other evidence that he raped her - he
may still be convicted if the jury believes her and not him (unlike say the case under Islamic law, where you need 4 male witnesses to the rape).
In a situation where the victim cannot "say" because she was unconcious, but there is other evidence like DNA evidence, other witnesses, etc., clearly you could never reach the burden of proof without corroberative evidence.
Malthus, I am not sure what you mean - obviously other evidence could indicate that the accused committed the crime.
That is why I asked what exactly constituted "corroboration". What evidence is there that is NOT corroboration - the definition of the word as I understand it is in fact "other evidence". I think I may not have the correct definition however, at least in a legal sense.
The statute he cited seems to be saying that corroborative evidence is NOT necessary at all, her word is sufficient to convict absent any other evidence. But I think I am not understanding that correctly, since that seems simply preposterous.
In the scenario described, where there is certain evidence that person A had sex with person B, but no evidence that the sex was non-consensual beyond her claim that it could not have been, although she cannot remember, I do not see how one could reasonably establish that she was raped (beyond additional convincing data about her) enough to justify even cahrging the guy, much less proving it beyond a reasonable doubt.
I suppose this would inevitably get into a very nasty examination of the victim lifestyle - the only way you could convince me if I was on a jury would be convincing me that there was no possible way she would ever consent to such a thing, which would be very hard to do.
Quote from: Berkut on June 11, 2009, 02:58:35 PM
Malthus, I am not sure what you mean - obviously other evidence could indicate that the accused committed the crime.
That is why I asked what exactly constituted "corroboration". What evidence is there that is NOT corroboration - the definition of the word as I understand it is in fact "other evidence". I think I may not have the correct definition however, at least in a legal sense.
The statute he cited seems to be saying that corroborative evidence is NOT necessary at all, her word is sufficient to convict absent any other evidence. But I think I am not understanding that correctly, since that seems simply preposterous.
In the scenario described, where there is certain evidence that person A had sex with person B, but no evidence that the sex was non-consensual beyond her claim that it could not have been, although she cannot remember, I do not see how one could reasonably establish that she was raped (beyond additional convincing data about her) enough to justify even cahrging the guy, much less proving it beyond a reasonable doubt.
I suppose this would inevitably get into a very nasty examination of the victim lifestyle - the only way you could convince me if I was on a jury would be convincing me that there was no possible way she would ever consent to such a thing, which would be very hard to do.
It is possible to convict based on "her" word alone. Not easy, but
possible. You still have to meet the burden of proof of course, and that may be difficult to do.
Consider child sex abuse cases - very often they are not prosecuted until years later. There is no physical evidence that the abuse took place. Other than the say-so of the victim.
Now, there is no question that such cases can be problematic (think "recovered memory" and all that). But if corroberation were
required, you could never convict in such cases - which would also be unjust.
Now, it *used* to be the case that you *did* need corroberation in cases of rape and incest. Here's a case of an 85 year old Indian dude accused of humping his 15 year old granddaughter in 1982. It turns on exactly this difference - under the "old" rules in place at that time you would need corroberation, and he'd walk scot-free without a trial; now, it gets sent to trial.
On application for prerogative writ:
http://www.canlii.org/eliisa/highlight.do?text=%22no+corroboration+is+required+for+a+conviction%22&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/sk/skqb/doc/2004/2004skqb116/2004skqb116.html
QuoteThe accused is an 85-year-old status Indian charged under s. 150 of the Criminal Code with three counts of incest involving his granddaughter. The offences are alleged to have occurred in 1982, when she turned 15 years of age. The only evidence at the preliminary inquiry was the testimony of the granddaughter who was about 35 years old at the time of the hearing. It is acknowledged there was no corroboration of her testimony. On the grounds that the presiding justice lacked jurisdiction to commit because of the absence of corroboration, the accused applies by way of certiorari to quash the order that he stand trial.
On Appeal:
http://www.canlii.org/eliisa/highlight.do?text=%22no+corroboration+is+required+for+a+conviction%22&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/sk/skca/doc/2005/2005skca21/2005skca21.html
How can you meet the burden of proof on her word alone though? I don't see how it is possible.
Why does the law exist stating that corroboration is necessary for every other kind of crime, except to make sure that you CANNOT reach a burden of proof without it?
This law seems to just say "Hey, all that burden of proof stuff doesn't count as long as the crime is a sexual offense - just go with whoever sounds more convincing!".
Frankly, if I were on a jury, I cannot imagine how I would EVER convict someone of rape in a case like the one you describe. I realize that means a lot of people who ought to be in jail will not be, but I don't think the rules should be different for rape than any other crime.
Why not regular assault? Why can't I get my uncle tossed in jail for hitting me 20 years ago, on my word alone? But I can get him tossed in jail if I say he sexually abused me? How is that reasonable?
Quote from: Berkut on June 11, 2009, 03:23:10 PM
How can you meet the burden of proof on her word alone though? I don't see how it is possible.
Why does the law exist stating that corroboration is necessary for every other kind of crime, except to make sure that you CANNOT reach a burden of proof without it?
This law seems to just say "Hey, all that burden of proof stuff doesn't count as long as the crime is a sexual offense - just go with whoever sounds more convincing!".
Frankly, if I were on a jury, I cannot imagine how I would EVER convict someone of rape in a case like the one you describe. I realize that means a lot of people who ought to be in jail will not be, but I don't think the rules should be different for rape than any other crime.
Why not regular assault? Why can't I get my uncle tossed in jail for hitting me 20 years ago, on my word alone? But I can get him tossed in jail if I say he sexually abused me? How is that reasonable?
Your premise is incorrect: only two crimes - treason and perjury -
require corroboration these days.
Quote47. (1) Every one who commits high treason is guilty of an indictable offence and shall be sentenced to imprisonment for life.
Punishment for treason
(2) Every one who commits treason is guilty of an indictable offence and liable
(a) to be sentenced to imprisonment for life if he is guilty of an offence under paragraph 46(2)(a), (c) or (d);
(b) to be sentenced to imprisonment for life if he is guilty of an offence under paragraph 46(2)(b) or (e) committed while a state of war exists between Canada and another country; or
(c) to be sentenced to imprisonment for a term not exceeding fourteen years if he is guilty of an offence under paragraph 46(2)(b) or (e) committed while no state of war exists between Canada and another country.
Corroboration
(3) No person shall be convicted of high treason or treason on the evidence of only one witness, unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.
Quote132. Every one who commits perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 132; R.S., 1985, c. 27 (1st Supp.), s. 17; 1998, c. 35, s. 119.
Corroboration
133. No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.
The reason the section on sexual assaults specifically state that corroboration is
not required is historical: those offenses used, in the past, to be treated specially - like treason and perjury are now - in holding that corroboration
was required.
In short, your uncle can get convicted of regular old assault 20 years ago just as easily as sexual assault 20 years ago. In the past that wasn't true - you could convict him of assault but *not* of sexual assault.
Again always presuming you could meet the burden of proof.
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.
Quote from: Berkut on June 11, 2009, 03:23:10 PM
How can you meet the burden of proof on her word alone though? I don't see how it is possible.
Why does the law exist stating that corroboration is necessary for every other kind of crime, except to make sure that you CANNOT reach a burden of proof without it?
Here's the thing - corroboration isn't
required on any kind of crime.
Edit: Malthus is correct - treason and perjury still have that rule. They are very much the exception.
Sexual offences used to be the oddball - it was the only area where corroboration
was required. I'm afraid I can't define corroboration in this context well - back in the day there were tons of cases on what did, or did not, constitute corroboration.
But they decided that since that was the only crime with that requirement it was based on some fairly anti-female stereotypes, the rule for corroboration was done away with in 1981 or so. As such I've never been trained or researched that area of law.
But as Malthus says just because it isn't required doesn't mean it isn't hugely helpful. In prosecuting a sex crime I try to find anything I can that would tend to corroborate the victim's story. But it isn't required.
All crimes get the same burden of proof - beyond a reasonable doubt. It's a hard burden in every single case. And it has little to do with "whomever is more believing".
There's a famous SCC Case called Regina v. D. (W.) dealing with he shaid/she said type cases. The test to be applied is as follows:
1. If you believe the accused you must aquit.
2. If you do not believe the accused, but are left in some doubt based on what the accused said, you must aquit.
3. Even if you disbelieve the accused, you must still be satisfied by all of the remaining evidence that the accused committed the offense beyond a reasonable doubt.
As you might guess, it's step 2 that gets tricky for the judge. It's awfully hard to entirely reject someone's story.
Quote from: Barrister on June 11, 2009, 03:46:10 PM
Quote from: Berkut on June 11, 2009, 03:23:10 PM
How can you meet the burden of proof on her word alone though? I don't see how it is possible.
Why does the law exist stating that corroboration is necessary for every other kind of crime, except to make sure that you CANNOT reach a burden of proof without it?
Here's the thing - corroboration isn't required on any kind of crime.
Sexual offences used to be the oddball - it was the only area where corroboration was required. I'm afraid I can't define corroboration in this context well - back in the day there were tons of cases on what did, or did not, constitute corroboration.
But they decided that since that was the only crime with that requirement it was based on some fairly anti-female stereotypes, the rule for corroboration was done away with in 1981 or so. As such I've never been trained or researched that area of law.
But as Malthus says just because it isn't required doesn't mean it isn't hugely helpful. In prosecuting a sex crime I try to find anything I can that would tend to corroborate the victim's story. But it isn't required.
All crimes get the same burden of proof - beyond a reasonable doubt. It's a hard burden in every single case. And it has little to do with "whomever is more believing".
There's a famous SCC Case called Regina v. D. (W.) dealing with he shaid/she said type cases. The test to be applied is as follows:
1. If you believe the accused you must aquit.
2. If you do not believe the accused, but are left in some doubt based on what the accused said, you must aquit.
3. Even if you disbelieve the accused, you must still be satisfied by all of the remaining evidence that the accused committed the offense beyond a reasonable doubt.
As you might guess, it's step 2 that gets tricky for the judge. It's awfully hard to entirely reject someone's story.
Psst - Treason and Perjury. Both expressly require corroboration.
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.
Quote from: Berkut on June 11, 2009, 03:45:40 PM
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.
Quote from: Berkut on June 11, 2009, 03:49:22 PM
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.
You have added a rather large amount of corroborating evidence there BB... :lol:
Quote from: Berkut on June 11, 2009, 04:12:42 PM
You have added a rather large amount of corroborating evidence there BB... :lol:
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. :huh:
Quote from: Barrister on June 11, 2009, 04:00:38 PM
Quote from: Berkut on June 11, 2009, 03:49:22 PM
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
QuoteFlunitrazepam 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
QuoteIt 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.
Quote from: Berkut on June 11, 2009, 04:12:42 PM
You have added a rather large amount of corroborating evidence there BB... :lol:
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%.
Quote from: Malthus on June 11, 2009, 04:19:40 PM
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
QuoteFlunitrazepam 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
QuoteIt 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.
Quote from: Barrister on June 11, 2009, 04:36:28 PM
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.
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".
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.
Quote from: Barrister on June 11, 2009, 05:38:37 PM
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.
Quote from: Malthus on June 11, 2009, 05:54:20 PM
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...
Quote from: Barrister on June 11, 2009, 06:04:04 PM
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?
Quote from: Malthus on June 11, 2009, 06:10:04 PM
Quote from: Barrister on June 11, 2009, 06:04:04 PM
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...
Quote from: Barrister on June 11, 2009, 06:21:39 PM
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.
BB, I appreciate your patience in explaining this to me.
Quote from: Berkut on June 11, 2009, 09:29:44 PM
BB, I appreciate your patience in explaining this to me.
No prob. I enjoy talking about this stuff - after all it's what I've trained to do and what I know, so I love that people find it interesting. I even love it when people challenge me as it forces me to go back to basic principles I know, but can always use a refresher on.
After having read through this, I found an interesting point in one of Beeb's post. He said something about feeling the need to have reasonable suspicion of guilt before bringing someone to trial, not necessarily absolute certainty of guilt. I think I agree that on a basic level this is indeed his job and there's nothing wrong with him conducting himself like that.
However, does the morality of conducting prosecutions this way change in a world where, as soon as someone is indicted, there's a chance their name/face will be splashed all over the newspapers/TV/radio? Should the burden of proof be higher, internally, given the potential of even an accusation by the government disrupting someone's life?
I pose this as a completely unloaded question... I don't have any clue what the answer might be.
Quote from: Berkut on June 11, 2009, 09:29:44 PM
BB, I appreciate your patience in explaining this to me.
That's different, eh?