Rape Laws Have Removed the Presumption of Innocence

[Contumacious]

How Rape Laws Remove the Presumption of Innocence​

Over the last 40 years, rape laws have undergone a fundamental transformation. But in other ways the reforms have gone too far, upending traditional tenets of criminal procedure and removing due process protections for the accused.

The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual."

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[Circe]

How Rape Laws Remove the Presumption of Innocence​

Over the last 40 years, rape laws have undergone a fundamental transformation. But in other ways the reforms have gone too far, upending traditional tenets of criminal procedure and removing due process protections for the accused.

The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual."

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Excellent. High time. So stop raping people and you won't get arrested for rape.

 

[Contumacious]

How Rape Laws Remove the Presumption of Innocence​

Over the last 40 years, rape laws have undergone a fundamental transformation. But in other ways the reforms have gone too far, upending traditional tenets of criminal procedure and removing due process protections for the accused.

The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual."

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Excellent. High time. So stop raping people and you won't get arrested for rape.

1. Definition of Rape. In the past, the definition of rape included the forcible genital penetration of a person without her (or his) consent. Now, some groups define rape in terms of genital penetration in which either person has consumed any alcohol or drugs, thus rendering the person unable to give consent.

8. Affirmative Consent: In the past, a man could reasonably infer that a woman was consenting to intercourse based on her behavior. Now, the woman must give affirmative permission through “words or overt actions” – although there is a lack of consensus regarding which specific overt actions constitute consent."

 

[Meathead]

It is scary, but not surprising that in this era overblown righteous indignation, some support the idea that a rape charge is tantamount to conviction. This may surprise some, but there are a lot of sick fuck and vindictive women in the world too.

 

[Contumacious]

It is scary, but not surprising that in this era overblown righteous indignation, some support the idea that a rape charge is tantamount to conviction. This may surprise some, but there are a lot of sick fuck and vindictive women in the world too.

One out of every 10 rape convictions wrong

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In cases such as these, I am consistently struck by the naïveté of clinicians and forensic evaluators alike, who accept police reports and especially victim accounts as the gospel truth. From my former career as a criminal investigator, I can attest to the fact that even impartial observers with no conscious motivation to distort are never 100 percent accurate in describing events they have witnessed. As Daniel Schachter so clearly articulates in Seven Sins of Memory, distortion is the nature of the human animal. It is even more likely to occur in situations involving high levels of stress, fear and emotionality

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[Circe]

1. Definition of Rape. In the past, the definition of rape included the forcible genital penetration of a person without her (or his) consent. Now, some groups define rape in terms of genital penetration in which either person has consumed any alcohol or drugs, thus rendering the person unable to give consent.

8. Affirmative Consent: In the past, a man could reasonably infer that a woman was consenting to intercourse based on her behavior. Now, the woman must give affirmative permission through “words or overt actions” – although there is a lack of consensus regarding which specific overt actions constitute consent."

Dat's wight, wabbit. So quit pushing and pushing yourself on women and you won't get charged with rape so often.

Sorry, Con, "no" doesn't mean "yes" anymore no matter how eager you are to get into her pants.

This thread is rapists complaining they got charged, isn't it? Geeze. Toss 'em in a cage, throw away the key. Who needs these types in the world? Nobody.

 

[Contumacious]

1. Definition of Rape. In the past, the definition of rape included the forcible genital penetration of a person without her (or his) consent. Now, some groups define rape in terms of genital penetration in which either person has consumed any alcohol or drugs, thus rendering the person unable to give consent.

8. Affirmative Consent: In the past, a man could reasonably infer that a woman was consenting to intercourse based on her behavior. Now, the woman must give affirmative permission through “words or overt actions” – although there is a lack of consensus regarding which specific overt actions constitute consent."

Dat's wight, wabbit. So quit pushing and pushing yourself on women and you won't get charged with rape so often.

Sorry, Con, "no" doesn't mean "yes" anymore no matter how eager you are to get into her pants.

This thread is rapists complaining they got charged, isn't it? Geeze. Toss 'em in a cage, throw away the key. Who needs these types in the world? Nobody.

Have you ever falsely accused someone of rape?

Are planning to falsely accused someone of rape?

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[IlarMeilyr]

Some defendant is accused of rape by the woman he had sexual intercourse with.

Let's just say (for the sake of an easy and not totally uncommon example) that he climaxed leaving behind (and inside her vagina) a lot of genetic proof that he is the only person to have had his penis inside her vagina.

Do we imagine that the "defense" will be a denial along the lines of "I never had sexual relations with that woman?" OF COURSE NOT.

Thus, the "defense" is almost certainly going to be "it was consensual."

SHE is going to be denying that it was consensual. Bruises etc might support her claim that it was forcible. At that point, the State has enough evidence to support a conviction. But the defense has a right to present its own defense. It's defense is "consent!"

So why shouldn't the defense have some duty to prove up its own claim? The State already has at that point.

All that said, I do disagree with the idea that a defendant has any duty to prove it. They have a right to raise that defense (by evidence of some kind, as a rule), and once placed into issue, it should be the obligation of the State (the ones making the charge) to prove to the satisfaction of the jury beyond a reasonable doubt that there was no consent.

 

[Circe]

Are planning to falsely accused someone of rape?

This is an English language forum, Contumacious.

Considering that word salad above, presumably you are from India or Egypt or one of those places where rape is normal and the men outraged at the idea that anyone might want to interfere with their inalienable right to rape women freely.

Things are different here in the U.S. and I think you'd do better to stay in whatever benighted place you live now if you want to stick yourself in women and pretend they said yes when they didn't.

 

[JakeStarkey]

I wonder if Contumacious may have an issue with the word "consent" in all of its legal ramifications.

 

[Polk]

Some defendant is accused of rape by the woman he had sexual intercourse with.

Let's just say (for the sake of an easy and not totally uncommon example) that he climaxed leaving behind (and inside her vagina) a lot of genetic proof that he is the only person to have had his penis inside her vagina.

Do we imagine that the "defense" will be a denial along the lines of "I never had sexual relations with that woman?" OF COURSE NOT.

Thus, the "defense" is almost certainly going to be "it was consensual."

SHE is going to be denying that it was consensual. Bruises etc might support her claim that it was forcible. At that point, the State has enough evidence to support a conviction. But the defense has a right to present its own defense. It's defense is "consent!"

So why shouldn't the defense have some duty to prove up its own claim? The State already has at that point.

All that said, I do disagree with the idea that a defendant has any duty to prove it. They have a right to raise that defense (by evidence of some kind, as a rule), and once placed into issue, it should be the obligation of the State (the ones making the charge) to prove to the satisfaction of the jury beyond a reasonable doubt that there was no consent.

You had it exactly right until the last paragraph. It's the burden of the defendant to prove his defense.

 

[Jarlaxle]

How Rape Laws Remove the Presumption of Innocence​

Over the last 40 years, rape laws have undergone a fundamental transformation. But in other ways the reforms have gone too far, upending traditional tenets of criminal procedure and removing due process protections for the accused.

The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual."

.

Excellent. High time. So stop raping people and you won't get arrested for rape.

You didn't read and understand the post, did you. (That is not a question.)

 

[Polk]

And noting that most rapes aren't reported, worrying about over-prosecution is a weird concern.

 

[Contumacious]

Are planning to falsely accused someone of rape?

This is an English language forum, Contumacious.

Considering that word salad above, presumably you are from India or Egypt or one of those places where rape is normal and the men outraged at the idea that anyone might want to interfere with their inalienable right to rape women freely.

Things are different here in the U.S. and I think you'd do better to stay in whatever benighted place you live now if you want to stick yourself in women and pretend they said yes when they didn't.

REPEATING:

Have you ever falsely accused someone of rape?

Are you planning to falsely accused someone of rape?

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[IlarMeilyr]

Some defendant is accused of rape by the woman he had sexual intercourse with.

Let's just say (for the sake of an easy and not totally uncommon example) that he climaxed leaving behind (and inside her vagina) a lot of genetic proof that he is the only person to have had his penis inside her vagina.

Do we imagine that the "defense" will be a denial along the lines of "I never had sexual relations with that woman?" OF COURSE NOT.

Thus, the "defense" is almost certainly going to be "it was consensual."

SHE is going to be denying that it was consensual. Bruises etc might support her claim that it was forcible. At that point, the State has enough evidence to support a conviction. But the defense has a right to present its own defense. It's defense is "consent!"

So why shouldn't the defense have some duty to prove up its own claim? The State already has at that point.

All that said, I do disagree with the idea that a defendant has any duty to prove it. They have a right to raise that defense (by evidence of some kind, as a rule), and once placed into issue, it should be the obligation of the State (the ones making the charge) to prove to the satisfaction of the jury beyond a reasonable doubt that there was no consent.

You had it exactly right until the last paragraph. It's the burden of the defendant to prove his defense.

No. I had it right all along. In our system, the defense generally has no burden of proof. The State always has it and it is not transferable.

That said, there IS such a thing as an "affirmative" defense. But that only imposes a duty on the defense to put forward evidence sufficient to raise the defense for the jury. The State has the burden of then overcoming it by -- proof beyond a reasonable doubt.

Florida Affirmative Defenses - Justification and Excuse



Under Florida law, an Affirmative Defense is a defense that operates to avoid (or cancel) the legal effect of a criminal act, which would ordinarily subject the accused to criminal liability. In an affirmative defense, the defendant admits the truth of the essential act (the act forming the basis of the prosecutor’s allegations), but justifies or excuses the act so as to avoid being subjected to criminal punishment. In effect, the defendant says: “Yes, I committed the act. However, I am not subject to criminal liability because, under the facts and circumstances of my case, the act was justifiable or excusable.”



For affirmative defenses raised in the course of a Florida jury trial, the defendant must present some evidence supporting an affirmative defense before the Court will grant a jury instruction on that defense. If the defendant presents evidence to support the instruction, then the jury will be instructed on the law as to that defense and will consider the defense during their deliberations.

Florida Criminal Law Defenses | Criminal Affirmative Defenses

That ^ is the basic proposition according to a Florida attorney.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden
of production on an affirmative defense, the burden of persuasion is on the State to disprove the
affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary
prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See
the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

http://www.floridasupremecourt.org/...ers/entireversion/onlinejurryinstructions.pdf at p. 77.

Those are the Florida pattern criminal jury instructions and it sets forth the basic proposition pretty well.

On an affirmative defense, of course the proponent (the defense) has the burden of coming forward with such evidence as will justify getting the proper charge to the jury. However, once that is accomplished, the STATE retains the obligation to disprove it beyond a reasonable doubt.

I suspect such a charge will be given to the jury by the presiding judge at Zimmerman's trial (assuming the defense comes forward with almost any evidence sufficient to raise the affirmative defense).

 

[Contumacious]

Some defendant is accused of rape by the woman he had sexual intercourse with.

Let's just say (for the sake of an easy and not totally uncommon example) that he climaxed leaving behind (and inside her vagina) a lot of genetic proof that he is the only person to have had his penis inside her vagina.

Do we imagine that the "defense" will be a denial along the lines of "I never had sexual relations with that woman?" OF COURSE NOT.

Thus, the "defense" is almost certainly going to be "it was consensual."

SHE is going to be denying that it was consensual. Bruises etc might support her claim that it was forcible. At that point, the State has enough evidence to support a conviction. But the defense has a right to present its own defense. It's defense is "consent!"

So why shouldn't the defense have some duty to prove up its own claim? The State already has at that point.

All that said, I do disagree with the idea that a defendant has any duty to prove it. They have a right to raise that defense (by evidence of some kind, as a rule), and once placed into issue, it should be the obligation of the State (the ones making the charge) to prove to the satisfaction of the jury beyond a reasonable doubt that there was no consent.

BEYOND A REASONABLE DOUBT = The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

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[Deepbluediver]

The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual."

Ok, for the people lambasting the OP as a "rape defender" or whatever, do you honestly think that this isn't just a little bit scary?

Given that the majority of sex still occurs between just 2 people, in a private location, this seems like a practically insurmountable challenge. The defendent has to effectively prove that his accuser is lying, in a situation where the only likely evidence is one person's word against another's.

What do you think about this sort of standard being applied to other areas of criminal prosecution?


Do you expect every person to break out the video camera before they get hot 'n heavy, just in case? How would you react to your partner saying "we need to get this consent form notarized before we go anywhere private"?

 

[IlarMeilyr]

Some defendant is accused of rape by the woman he had sexual intercourse with.

Let's just say (for the sake of an easy and not totally uncommon example) that he climaxed leaving behind (and inside her vagina) a lot of genetic proof that he is the only person to have had his penis inside her vagina.

Do we imagine that the "defense" will be a denial along the lines of "I never had sexual relations with that woman?" OF COURSE NOT.

Thus, the "defense" is almost certainly going to be "it was consensual."

SHE is going to be denying that it was consensual. Bruises etc might support her claim that it was forcible. At that point, the State has enough evidence to support a conviction. But the defense has a right to present its own defense. It's defense is "consent!"

So why shouldn't the defense have some duty to prove up its own claim? The State already has at that point.

All that said, I do disagree with the idea that a defendant has any duty to prove it. They have a right to raise that defense (by evidence of some kind, as a rule), and once placed into issue, it should be the obligation of the State (the ones making the charge) to prove to the satisfaction of the jury beyond a reasonable doubt that there was no consent.

BEYOND A REASONABLE DOUBT = The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

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Yeah. That was not helpful.

Nobody is disputing that the State has to prove its charges beyond a reasonable doubt. That's why I used that phrase, in fact.


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[AmyNation]

How have the laws removed the presumption of innocence?

 

[Contumacious]

I wonder if Contumacious may have an issue with the word "consent" in all of its legal ramifications.

Comrade Starkiev:

Since when do communists give a shit about consent?

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