False allegations and attrition

[gumboot]

Where should the rest of us surrender ourselves?

At your local community Death Happy Camp.

 

[RandFan]

Where should the rest of us surrender ourselves?

It's a serious issue and I don't mean to make light but this reminds me of the Cheech and Chong skit.

 

[PhantomWolf]

Ha! I am neither a virgin, nor a Tea-totaller, and I have never had sex while drunk. I look forward to mocking all you convicted quasi-rapists.

Does this mean we fight over who gets to be the new Telecom CEO after the lock up of everyone else?

 

[gumboot]

To get back to the topic, there is one thing that deeply concerns me about many of the proposed and implemented changes to how rape is treated, and that is the abolition of mens rea. Mens Rea is a Latin phrase meaning "Guilty Mind" and is one of the corner stones of the western legal system. For at least 800 years, in order for a person to be liable for a crime, it must be proven that mens rea existed. There are different levels of mens rea from direct intention - the person knew what the outcome of their actions would be and acted on the desire to produce that outcome - to criminal negligence - a reasonable person should have been aware of the likely outcome of their actions.

In the case of rape, this is problematic because the action itself - having sex - is not a crime. It is only absence of consent which makes the act a crime. Therefore, in order to establish mens rea you have to, at a minimum, establish that a reasonable person would have been aware there was probably no consent.

Many of the people pushing for changes to rape law want to see that approach scrapped - it has already happened in the UK where a defendant is required to prove what steps they took to secure consent.

This essentially argues that rape can occur without mens rea which rejects almost a thousand years of legal precedent (and probably over a thousand).

What is most worrying is that this is not based on anything more than a desire to see more rape convictions, which is itself built on a faulty and unsupported assumption that there should be more rape convictions. That's not how the law should work.

 

[PhantomWolf]

I actually noted in Florida law they have totally thrown it out on age, regardless of what you do to confirm age, even if they have false ID and lie about age, you're still guilty.

 

[Ivor the Engineer]

So basically only sober people are allowed to have sex and anything else is rape. If that is the case, I think we had better lock up about 90% of the western world, because I imagine that the only ones to have never had sex while drunk are the virgins and the tea-totallers. Of course, I am a bit worried about those of us in those categories because we are going to face a rather hefty tax bill to pay for the incarceration of the rest of you.

No, it's not, you know it's not and so does everyone else. But if it helps you feel like you've scored a point at my expense, good for you.

 

[gumboot]

No, it's not, you know it's not and so does everyone else.

Actually the argument I've seen presented by yourself and others is that a drunk person is too incapacitated to give consent, which means having sex with a drunk person is rape.

This is rather illogical, as well established by drink driving laws. If a drunk person was considered incapacitated, they could not be prosecuted for any action they took while drunk, as they are not in command of their actions, and therefore not responsible.

This is clearly not the case, as demonstrated by the vast number of people who are convicted for committing crimes while drunk.

A person who chooses to get drunk, and then while drunk chooses to have sex, has not been raped. Period.

 

[PhantomWolf]

No, it's not, you know it's not and so does everyone else. But if it helps you feel like you've scored a point at my expense, good for you.

You have continually said that drunk people can't consent, so doesn't that mean that having sex with a drunk person is rape? Are you changing your mind now? If not, then surely the only other option is that only sober people can have sex without it being rape.

 

[Ivor the Engineer]

You have continually said that drunk people can't consent, so doesn't that mean that having sex with a drunk person is rape? Are you changing your mind now? If not, then surely the only other option is that only sober people can have sex without it being rape.

In your opinion, does a person go from sober to drunk the moment alcohol crosses their lips?

 

[PhantomWolf]

In your opinion, does a person go from sober to drunk the moment alcohol crosses their lips?

No, usually takes a few minutes...

Of course you better watch out, because you're starting to head towards a position that says someone that has been drinking can consent to sex.

 

[MattC]

I actually noted in Florida law they have totally thrown it out on age, regardless of what you do to confirm age, even if they have false ID and lie about age, you're still guilty.

I am reasonably sure that jury nullification would occur in the situation you describe given a competent defense attorney. One rarely, however, has this luxury.

~ Matt

 

[Ivor the Engineer]

No, usually takes a few minutes...

Of course you better watch out, because you're starting to head towards a position that says someone that has been drinking can consent to sex.

I have never stated otherwise and neither has anyone else, except for you.

You have created a strawman to attack. Congratulations, I think you've beat it.

 

[Francesca R]

To be honest, taking a case to court when there is only a 50-50 chance is dumb, if you lose and then more evidence turns up, you're screwed, you can't retry it. Surely it's better to wait till you have a 75-80% chance of conviction than to go early and hope for the best.

There is a balance to be struck, in the interests of securing maximum justice. The extremes are "no trial sought unless 100% probablility of conviction" and "a trial every time". What you think is dumb versus what others do is on OK debate, but comes down to where you think that balance should be struck, and I suspect you would favour fewer prosecutions (all else being unchanged) than me given your comments.

We shouldn't be saying "Well we're think there's a 51% chance he's guilty, but let's let a jury sort it out."

You misinterpret the guidance. It is "we think there is a better than 50% probability that a jury will find for the prosecution beyond reasonable doubt". That's not the same as what you wrote.

Having said that, the victim should have a say, if the police inform them that they don't believe proceeding at the current time would be advisable, but the victims says they want to, then do it, then if the case fails, the victim can only blame themselves.

Here it is formally the Crown Prosecution Service's decision, and that's because the state is the party bringing the case, as it does all criminal prosecutions. Of course the complainant makes representations and is given advice, but s/he doesn't make the decision.

I doubt they would plummet if name suppression were kept

Perhaps there is confusion about what was said here. I thought gumboot said that "It's [the current practice] also a major reason many victims never come forward." And the current practice is anonymity for rape complainants but not normally for defendants. I am saying that removal of complainant anonymity (from the public) would see complaints fall, and that is the justification for complainant anonymity. So--this is not something gumboot was contesting, and may I correct things if it looked like I meant otherwise? Thanks

I think that in this sort of case where the defendant is pretty much considered by the public as guilty even if found not guilty, that name suppression should apply until a guilty verdict is given, then they can release the name publicly.

This is a significant additional subject and there is a lot of public and legal debate on it. The argument has been advanced regularly to lawmakers that the lack of anonymity can jeopardise a fair trial, which would mean that any verdict from that trial is rendered unsafe. I believe that it is possible to apply for a witness anonymity order on these grounds. The default in an open justice framework is for witnesses to not be anonymous from the public--in a nutshell--as part of justice being "seen to be done".

Your argument seems more to do with the risk of post-trial "social exclusion" by society. You do have a point with that, though it is not one that would concern the legal system per se, whose interest is in seeing fair trials.

Going to have to disagree because personally I think that a violation of another person even if it doesn't involve injury or force, is still a form of violence.

I think we should drop this because I agree with that.

 

[Francesca R]

I think the threshold for prosecution should be higher.

OK. See my previous post. I think it was higher (in the UK) and I regard it as a net improvement to the system that the hurdle is lowered, but still "sensible".

They're not though. With hastily advanced prosecution cases too often basic evidence only emerges at trial - evidence the police should have uncovered during their investigation.

This is a comment in the investigation of rape cases and I fully agree that there is room for improvement.

I have no problem with the police keeping rape cases open indefinitely until they have a robust case. I think that's the most effective way in which the police can provide victims with justice.

Me neither.

You cannot be serious. That's a pathetic excuse for not granting name suppression. Do you have any real justification for not granting name suppression? Besides, I never suggested name suppression should be maintained indefinitely.

I cannot be serious about one of the fundamental tenets of open justice, that being witness non-anonymity?

Care to cite where I claimed anything "contrary"? I've never suggested that rape victims should have their identity disclosed. In fact I suggested name suppression for victims should be mandatory.

Yes accepted--see previous post.

So what are they? I'm all ears.

Sorry, this is too vast a subject and probably deserves another thread.

(ETA: On second thoughts, if your view is that in rape (or sexual offence) cases specifically defendant name suppression during trial should be implemeted, then I would agree it is for this thread)

 

[gumboot]

Perhaps there is confusion about what was said here. I thought gumboot said that "It's [the current practice] also a major reason many victims never come forward." And the current practice is anonymity for rape complainants but not normally for defendants.

That's not what I said at all. I said:

The stigma and frenzy that surrounds sexual assault cases is brutally harmful to both innocently accused people and genuine victims, and does not serve any benefit to society. It's also a major reason many victims never come forward.

"It's" refers to "the stigma and frenzy that surrounds sexual assault cases".

I am saying that removal of complainant anonymity (from the public) would see complaints fall, and that is the justification for complainant anonymity. So--this is not something gumboot was contesting, and may I correct things if it looked like I meant otherwise? Thanks

No one has contested that revealing the identity of rape complainants would result in a drop in rape complaints. But then no one has suggested this should happen. I raised the issue of name suppression, and my suggestion was to make it mandatory for both victims and the accused.

This is a significant additional subject and there is a lot of public and legal debate on it. The argument has been advanced regularly to lawmakers that the lack of anonymity can jeopardise a fair trial

Exactly my point. But there's another aspect to it also, and that is a peculiar aspect of human behaviour. If people learn that John Smith has been found not-guilty of rape, they are less likely to consider him guilty than if they learn that John Smith is about to be accused of rape, are able to follow the details of the specific trial, and then learn of the decision that he is not guilty.

People tend to make decisions immediately based on available evidence, and most people will not change their opinion once new information appears to indicate their initial assumption was wrong.

Thus the accused has a vested interest in remaining anonymous until such time as the trial has been completed. I believe the accused's rights in this regard vastly outweigh any public interest.

 

[Darat]

Do you only hold this for the prosecution of a rape charge?

 

[gumboot]

OK. See my previous post. I think it was higher (in the UK) and I regard it as a net improvement to the system that the hurdle is lowered, but still "sensible".

It may be the threshold in the UK was too high and is now at a sensible level. I can only speak for my own country, and am of the opinion that far too many rape cases in this country go to trial with inadequate evidence for even the possibility of conviction.

I cannot be serious about one of the fundamental tenets of open justice, that being witness non-anonymity?

I'm beginning to wonder if we're talking at cross-purposes here. Are you referring to witnesses having anonymity in the court room while giving evidence, or are you talking of name suppression that prevents anyone from publicly disclosing the identity of the person outside the courtroom?

I think that absolutely everyone should be identified when giving evidence inside the court - and I hold that true for a rape victim as well as any and all other witnesses.

However I do not think that publicly disclosing these identities outside the courtroom serves any purpose other than entertaining the masses and filling newspaper columns, and is often rather harmful to open justice - as evidenced by trials can are dismissed due to press coverage of the case rendering an impartial jury and impossibility.

(ETA: On second thoughts, if your view is that in rape (or sexual offence) cases specifically defendant name suppression during trial should be implemeted, then I would agree it is for this thread)

Yes, that's a good summary of my position. Although that's only half of it. It is my view that in rape or sexual offense cases specifically defendant and victim name suppression during trial should be implemented.

I do not agree with anyone being anonymous in the court room.

 

[Francesca R]

That's not what I said at all. I said: [ . . . ]

Thank you for setting me straight. I hope that this point is settled.

I raised the issue of name suppression, and my suggestion was to make it mandatory for both victims and the accused. [ . . . ] the accused has a vested interest in remaining anonymous until such time as the trial has been completed. I believe the accused's rights in this regard vastly outweigh any public interest.

I respect your point of view on this and it is a reasonably common one, but I disagree with it. As a point of information, defendants in rape cases were granted public anonymity in the UK between 1976 and 1988.

I do not think that the accused's rights outweigh public interest. In the case of rape complainants, I also view it as public interest--not the complainant's interest in privacy in and of itself--that is the rationale for public anonymity there. Namely, the public's interest in having the crime of rape brought to justice more effectively. This is, therefore, my response to challenges along the lines of "Well it's OK for the complainant, so it's unfair for it not to be OK for the accused". I do not think it is about individual rights Complainant name suppression is a departure from the norm of open justice.

Open justice is itself a public interest / human rights issue, not an individual privacy issue (and it is in conflict with that actually, but has been legallly enshrined as taking precedence in all significant human rights acts of governments--secret trials happen in jurisictions that are severly lacking in human rights).

In most cases, criminal trials take place in public and the media is able to report on them. The rationale for public reporting of criminal trials is one of public scrutiny of the judicial process. Trials are not (should not IMO) be conducted in secret, and name suppression is a significant step in the direction of secret trials. Miscarriages of justice are more likely to happen in such an environment. If you take this argument as "pathetic" we can do nothing but, again, vehemently disagree on it.

Furthermore, I do not think that name suppression of sexual offence defendants is necessary to safeguard fair trials--although that may happen in some cases. Name suppression of sexual offence complainants is, however--(in my opinion)--necessary to prevent fair and genuine trials from failing to happen in the first place.

I am not sure whether you are primarily concerned with the incidence of unsafe verdicts (whether or not they are detected) due to defendant name identity, or the social exclusion "mud sticks" matter. I think it is the latter you are most concerned with? In that case--I agree that you do highlight a significant problem, which is sections of society informally believing in guilt. It is a problem in any criminal trial involving acquittal. You (and others) have pointed out that the effects may be worse for the acquitted in sexual offence cases (although I do not agree that they are worse than for murder and violent crimes against children). You have a point--I just do not accept (in fact nowhere near it) that this problem should be accommodated by sacrificing the public interest in open justice. It should be tackled without changing this crinimal justice principle.

 

[Francesca R]

I'm beginning to wonder if we're talking at cross-purposes here. Are you referring to witnesses having anonymity in the court room while giving evidence, or are you talking of name suppression that prevents anyone from publicly disclosing the identity of the person outside the courtroom?

Both.

However I do not think that publicly disclosing these identities outside the courtroom serves any purpose other than entertaining the masses and filling newspaper columns, and is often rather harmful to open justice - as evidenced by trials can are dismissed due to press coverage of the case rendering an impartial jury and impossibility.

Here our views are strongly opposed. I think it serves a vital purpose, notwithstanding the problems that you evidently see as looming larger than the purpose.

ETA--By the way I also agree with you that a defendant should not face an anonymous accuser inside a courtroom.

 

[Francesca R]

In the case of rape, this is problematic because the action itself - having sex - is not a crime. It is only absence of consent which makes the act a crime. Therefore, in order to establish mens rea you have to, at a minimum, establish that a reasonable person would have been aware there was probably no consent.

Many of the people pushing for changes to rape law want to see that approach scrapped - it has already happened in the UK where a defendant is required to prove what steps they took to secure consent.

I just spotted this. That isn't the case in UK law and I have posted the act of parliament--which is still binding since it had royal assent in 2003--earlier in the thread.

The prosecution is required to prove guilt. That means that the prosecution has to prove that a reasonable person would not have drawn consent, which is exactly how your first (quoted) paragraph is worded. You are misrepresenting UK law.