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Judges, Grudgingly, Overturn Rape Conviction Thanks to Arcane Law From 18


Society & Culture  (tags: abuse, americans, crime, culture, education, ethics, family, government, law, media, police, politics, safety, society, violence, women )

Kit
- 961 days ago - slate.com
Citing an obscure state law from 1872, the panel ruled that an impersonator who tricks someone into having sex with him can only be found guilty of rape if he is pretending to be a married woman's husband.



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Comments

Kit B. (276)
Tuesday January 8, 2013, 7:13 pm
(Photo by Joe Raedle/Getty Image)




Thanks in large part to a 19th century California law, a man who pretended to be the boyfriend of a sleeping woman before initiating sexual intercourse with her could get a second chance at a trial after an appellate panel of judges overturned his rape conviction. Why? The woman wasn't married.

The judges are urging legislators to update the clearly outdated state law after deciding that Julio Morales, who was convicted and sentenced to three years in prison by a trial court, may have been sent to jail based on an argument by prosecutors that wasn't—in the very strictest sense—a correct interpretation of the arcane law.

The 1872 criminal code, which apparently is still the state's definition of rape by impersonation, applies as written only if the rapist is pretending to be the husband of a married victim. Here's Judge Thomas L. Willhite Jr. on why the obviously reluctant panel of judges decided to overturn the conviction:

"Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes."

According to the Associated Press, prosecutors actually presented two arguments for conviction during the trial: the impersonation argument and the argument that Morales's initiation of sexual intercourse with an unconscious person is, by law, rape. But the appellate court wasn't sure which argument jurors used to make their decision, necessitating a retrial. According to the Los Angeles Times, prosecutors are still deciding whether they'll retry Morales (maybe this time with only one argument) or if they'll appeal to the California Supreme Court.
*****

By Abby Ohlheiser | Slate magazine |
 

Lydia S. (161)
Tuesday January 8, 2013, 7:22 pm
This is outrageous !
So the woman is actually [ to me ] doubly violated , First by the rapist and now by the judicial system .
I do hope justice prevails .
 

Kit B. (276)
Tuesday January 8, 2013, 8:12 pm

Absolutely, Lydia and while California's Senate committee has for a time vetoed the change to the law, the legislators hope that by running this by the state Senate a second time they might just over rule this arcane, and very troubling law. It seems the state Senate is very concerned that they would add to an already over-populated prison system if this law is revoked.
 

Joanne Dixon (33)
Tuesday January 8, 2013, 8:49 pm
Petition to California Legislature to change this being formed at http://forcechange.com/50990/demand-california-change-dated-law-to-protect-unmarried-rape-victims/?utm_source=ForceChange+Newsletter&utm_campaign=9c9bea622e-NL3751_8_2013&utm_medium=email
 

Kit B. (276)
Tuesday January 8, 2013, 8:58 pm

Demand California Change Dated Law to Protect Unmarried Rape Victims:

http://forcechange.com/50990/demand-california-change-dated-law-to-protect-unmarried-rape-victims/

Petition signed - thanks Joanne.
 

Tamara Noforwardsplz (185)
Tuesday January 8, 2013, 10:00 pm
Petition signed. This ruling had me livid when I read it. I sincerely hope that this gets changed ASAP!
 

Fiona Ogilvie (1012)
Tuesday January 8, 2013, 10:41 pm
So outrageous. So brutally outrageous.
 

JL A. (286)
Tuesday January 8, 2013, 10:52 pm
Sounds as if the DA who chose to use the arcane law screwed it up and also swift justice for the victim.
 

JL A. (286)
Tuesday January 8, 2013, 10:55 pm
Signed (thanks Joanne). What is especially sad is about 10 years ago the Legislature had a project to identify all the obsolete laws on the books to eliminate them...seems someone argued that this one still had a purpose as written.
 

Jim Phillips (3200)
Wednesday January 9, 2013, 12:41 am
ForceChange Peition signed.

Thanks to Joanne for finding the petition.

Ty, Kit.
.
 

Rose Becke (293)
Wednesday January 9, 2013, 12:47 am
SIGNED
 

Past Member (0)
Wednesday January 9, 2013, 1:13 am
Signed too Cheers
 

Thomas P. (468)
Wednesday January 9, 2013, 6:59 am
Noted...thanks Kit. Petition signed...thanks Joanne. I read an article about this yesterday and it wasn't clear to me why the law that says that initiation of sex with an unconscious person is rape wasn't more relied upon, both by prosecutors and/or the jury. It would seem that would have made overturning the conviction unnecessary. At any rate, I am hoping that ultimately this woman will get justice upon her perpetrator and that it will severe..
 

divergent revolution (331)
Wednesday January 9, 2013, 8:27 am
this law was obviously written before the sexual revolution.
In those times,only women of ill repute had sex without being married, so the law thinks.
We need to refresh our laws from time to time to keep up with society and technology.
Thanks for the story,Kit
read it somewhere yesterday, and it took awhile for the sense to come.
 

pam w. (138)
Wednesday January 9, 2013, 12:05 pm
This law will be GONE....ASAP!

SOMEONE will have the way to overturn the verdict, too....perhaps a civil suit?
 

Kit B. (276)
Wednesday January 9, 2013, 12:53 pm

A civil suit might shake up California but it will not put these violent criminals back behind bars.
 

Lynne Buckley (0)
Wednesday January 9, 2013, 1:36 pm
This was an outrageous decision. It shames America to have laws and decisions like these. happy to sign petition.
 

Gloria H. (88)
Wednesday January 9, 2013, 3:02 pm
If the law ever gets changed (signed), maybe now this creep will only rape dead women that seem to be asleep? I hope sometime soon, his weenie becomes very very wee. Possibly the result of some woman sleep walking with a pair of sharp scissors. And, not a needle and thread to be found to "mend" the "unfortunate" error. moo ha ha.
 

Natalie V. (27)
Wednesday January 9, 2013, 3:52 pm
noted & signed
 

Natasha Avital (1)
Wednesday January 9, 2013, 4:30 pm
SHE WAS ASLEEP! Basically what they said was that anyone can rape an unmarried woman while she's asleep, cause obviously this man's only crime was to pretend to be the woman's boyfriend (which, by the way, he DIDN'T). She mistook him for her boyfriend, but what he did was violate the body of a sleeping woman. This falls so clearly into the definition of rape that I don't know why they would go with "impersonating boyfriend" as their first option for accusing him.
 

Natasha Avital (1)
Wednesday January 9, 2013, 6:04 pm
Also, don't you just love how the bill mentioned only protected women with LIVE-IN boyfriends? Cause all those other sluts don't deserve legal recourse against rape.
 

Kit B. (276)
Wednesday January 9, 2013, 6:44 pm

Women organized and fought so hard to finally have rape defined as a crime of violence and not a sexual crime. Now we have this stupid law that "some how" slipped through the cracks only to make an appearance when this country has once again gone "rape" crazy. I recently signed yet another petition for a rape victim, she wasn't really raped because she didn't fight hard enough - though she did spend three days in a coma.

When is ENOUGH finally enough? Married or unmarried no matter what an individuals private sexual proclivity, rape is a crime of violence, the police tell women to not fight back and live through the horrors, judges then tell women they didn't fight enough. If a man is accosted on the street by a mugger and silently hands over his money, he is praised for "doing the right thing" he live to tell the story.
 

faith v. (13)
Wednesday January 9, 2013, 7:24 pm
How does this relate to the accusations facing Julian Assange?

No I am not defending any form of rape.
It just seems as though the powers that be seem to want to have their cake and eat it.
 

Kit B. (276)
Wednesday January 9, 2013, 7:28 pm

This is about a rape case in California not at all about Julian Assange.
 

faith v. (13)
Wednesday January 9, 2013, 7:28 pm
How does this fit in ith the case of the child drugged, gang-raped and dumped on her family doorstep recently, with the video of one rapist boasting about how "dead" she was?

Sorry I couldn't stand watching that clip to the end.
But it went viral, along with the idea that the girl who went to the party was asking for everything she got.
 

Kit B. (276)
Wednesday January 9, 2013, 7:31 pm

This is a separate case with a very different set of parameters. Read the article. Isn't that the good thing about videos? We can make the choice to not watch them.
 

faith v. (13)
Wednesday January 9, 2013, 7:41 pm
Back to Assange - but basically all these cases - I realise this particular article is about California.

My concern is what appears to me to be a double (multiple) standard, selectively letting some rapists off the hook. I thought that was behind the reluctance apparent in this decision.

" Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes."

Assange was not, as far as I know, pretending to be married to either of the women who have been trying to get the investigation terminated. (No charges have been filed.)
 

Kit B. (276)
Wednesday January 9, 2013, 7:51 pm

The charges against Assange have to do with a rarely used law, he paid for the ladies he spent time with, but they are claiming that he did not use a condom, there fore the rarely used law is brought forward. Rape. No charges for rape are still pending, but that could change tomorrow. There is no forensic evidence against Assange and that should end the discussion. Those women were able to walk out at any time they pleased, they were not held hostage nor harmed in any way. This is or was their choice to make their living through prostitution.
 

Stephen Brian (23)
Thursday January 10, 2013, 12:18 am
It is disturbing, and there is probably a better way to address the problem, but there is good reason for this law to exist. The extraordinary legal trouble with rape is that the standard of evidence normally required to convict for other crimes is almost never reachable in cases of rape. For that reason, the standard tends to get generally lowered. This leads to the issue of conviction due to false accusations. I know this sounds like some pro-rapist talking-point, but false accusations are common enough to be a serious problem, and there are places where the presumption of innocence is effectively abandoned for cases of sexual misconduct. It is well-known how difficult it can be to prove rape with so little evidence normally being available. Now imagine trying to prove a negative with just as little evidence.

Whether they are a matter of regret (which I suspect is very rare), one of seeking to appear to be a victim rather than promiscuous, as a matter of following through on a threat used for blackmail, a weapon in a personal conflict, or error by a third-party "whistle-blower", false accusations are a real problem. There are a few factors contributing to this, including the identity-protection for victims of any sort of sexual misconduct which is present in many places, and a few other issues I will not go into unless anyone asks. My point about the law is that it is meant to address the second cause I listed, cases of promiscuity where the promiscuous individual would prefer to appear to be a victim rather than promiscuous. It is legally assumed that a married person would not be promiscuous, which is why the exception does not apply in those cases, but there is no legal recognition of any monogamy other than marriage. As it is normally impossible (and certainly was back in 1872) to acquire any evidence one way or the other in cases of false pretenses, the exception is there to protect the presumption of innocence. There may be a better way to go about it, but that law should not be touched until there is something ready to replace it. Even if there is, it is a fundamental aspect of the rule of law that a future law cannot be applied retroactively to convict anyone for an act committed before it was publicized.

That said, if it can be demonstrated that sexual contact was initiated while the woman was unconscious, up to the standard of evidence required in cases of rape, then Julio Morales should serve his sentence.
 

Natasha Avital (1)
Thursday January 10, 2013, 5:39 am
@Stephen Brian: Yeah, you're right. It's so much better to acuse someone of rape than to be thought of as "promiscuous" (the horror! the horror!) I mean, rape victims get such a nice treatment by society! Everyone believes them, no one tells them they were "asking for it", and certainly no judge and no one on the media would ever scrutinize every single aspect of the woman's life to prove that she was, indeed, "promiscuous" (and therefore not deserving of having her bodily and mental integrity respected). And certainly no one's going to acuse her of ruining that poor, poor boy's life, who had his whole future ahead of him and now, poor thing, this horrible accusation is gonna ruin everything (which, unless he goes to prison, it rarely does. People are pretty forgiving when it comes to rape, except if it's the "dark alley, stranger with a knife" type).

And you know what else is great? It's not like rape survivors are denied medical insurance later based on their "pre-existing condition", and it's not like they're forbidden from living in university campuses because they might get stressed out, and that would certainly be a drag for everyone else. Accusing someone of rape is a walk on the park. It's why most rapes are reported and most rapists are convicted, after all.

"The law should not be touched until there is something ready to replace it". Hey, you know there is to replace it? Treating this kind of rape like every other crime! You collect the evidence, you weight testimony, and you assess guilt. It's not brain surgery! In this specific case, for instance: there was sufficient evidence that he took advantage of the fact that she could mistake him for her boyfriend. It's the freaking reason why he was convicted! And now he's out of jail cause ppl like you are so worried abt those promiscuous conniving women out to ruin men's lives!

PS: Accusing someone of a crime that has a rate conviction of little more than 10% (and that's being optimistic) is not the best way to get revenge at someone or blackmail them. You'd think most of those promiscous liars would have figured that out by now.
 

Deborah W. (6)
Thursday January 10, 2013, 6:37 am
Another stunning example of why "loophole" laws run rampant, should mandatorily be reviewed and updated or replaced entirely within a range of actual relevancy to the times and not left hanging for legal battle as needed.
 

Gloria picchetti (302)
Thursday January 10, 2013, 8:20 am
Thank you for the clarification. It was the archaic law not the judges that let the rapist go free. Where would we be without Kit?
 

Gloria picchetti (302)
Thursday January 10, 2013, 9:31 am
Wow Kit, I never thought you were being rude. You corrected what I thought! Thank you.
 

Stephen Brian (23)
Thursday January 10, 2013, 11:15 am
Hi Natasha,

There certainly are those who say they were "asking for it", but there are also those who do not. those who are more sympathetic tend to be the ones with whom the victim is closer. However, if a woman is accepted as being promiscuous, then even those who would otherwise be sympathetic, like family-members and significant others, will not be. For example, you clearly would not accuse a rape-victim of "asking for it", nor would you try to prove he or she was promiscuous. If, on the other hand, the person in question actually is openly promiscuous, somehow I doubt you would be quite so sympathetic if her significant other has a problem with this.

Accusing someone of rape, in a real case, is certainly no walk in the park. A false accusation, on the other hand, is much easier. The denial of medical coverage was specifically for psychological therapy related to the rape, which is not needed in case of false accusation. The forensic examination is covered by the state when coverage is denied by insurance companies. As for living on university campuses and other such restrictions, these are problems, but they are also not widely known.

In cases of rape-accusations, conviction is not even necessary for the threat to be effective. I have been falsely accused of sexual misconduct repeatedly: In one case, a third party "whistle-blower" did not realize that the girl with whom I was "suspiciously affectionate" was my step-sister. I still was not rehired, as was standard practice at that workplace, when my seasonal contract ended, and the explanation given by the employer was the rumour-mill following the allegation. In the other case, key aspects of the event, implied in the allegation though not explicitly stated, were found not to have occurred at all. I was still nearly evicted from my apartment, until I realized that the management was acting on those implications and not the actual statements, and challenged them. This was my personal experience, but let's look at statistics:

http://www.theforensicexaminer.com/archive/spring09/15/
the author there was only able to find three studies, one in a small town in the U.S. Midwest, one at two universities, and the other in the U.S. Air Force, looking at actual false allegation-rates. The rates of false accusation were, respectively, 45%, 50%, and 45%. There is a reason why the rape conviction-rate is so low despite a lowering of the bar for evidence.

If this rape were treated like any other crime, the assailant would laugh his way out of court in this case and nearly every single other one. There is no way that there could possibly be sufficient evidence to convict. Short of a confession, unless she for some reason recorded all sounds while she was having sex, there is no way anybody could possibly prove that he lied about his identity. It is also likely impossible to prove that she was really asleep when sexual contact began.
 

Natasha Avital (1)
Friday January 11, 2013, 6:09 am
@Stephen Brian: "For example, you clearly would not accuse a rape-victim of "asking for it", nor would you try to prove he or she was promiscuous. If, on the other hand, the person in question actually is openly promiscuous, somehow I doubt you would be quite so sympathetic if her significant other has a problem with this."

Don't project your victim-blaming on me. I would not be "less sympathetic" to rape survivor because of their behavior, clothes, sexual orientation, trans status or any of the other reasons a lot of people routinely use to say some people (overwhelmingly women) have less of a right to their bodily and mental integrity.

This kind of thinking is dangerous, since it perpetuates myths that let rapists walk out with a slap on the wrist for their crimes (there have been cases of CONFESSED rapists not getting prosecuted cause the victim was intoxicated and of rapists not getting a jail sentence cause the victim was dressed "provocatevely"). It's one of the main reasons for such a low rate of reports of rape, since women know they'll be blamed for a lot of people and have their lives scrutinized for the reason why they "caused the rape to happen". Stop perpetuating this thinking that a woman somehow has to PROVE that she's "worthy" of having her fundamental rights respected.

 

Stephen Brian (23)
Friday January 11, 2013, 9:18 pm
Hi Natasha,

I never thought that you might blame a victim of rape. I apologize for the implication. I meant that you would not treat someone as a victim if she never claimed to have been raped, and that you might disapprove of people willingly and knowingly violating a agreements of monogamy (cheating on their significant others). My point there was that a false claim of rape could get someone treated as a victim, at least by decent people like you and me, whereas open admission of having cheated would invite scorn from the same people who would blame a victim as well as many people who would otherwise be sympathetic. Due to the difficulty in proving rape, this would remain true even without a conviction. Consider, in particular, the reactions of the significant other of a rape-victim, and of someone who cheats: After cheating, a false allegation of rape, even if it goes nowhere, could save a relationship, unless that relationship is with a victim-blamer, in which case it is not worth saving anyways. That sounds like motivation for a false allegation to me.

I don't think that people should have to actively prove the worth of respect for their rights. However, before another person can be penalized by any justice-system, I think it should be proven, up to whatever standard of evidence is reasonable for the penalty and type of crime, that rights were, in fact, violated. I know that stigma and victim-blame unjustifiably reduce reporting-rates, and those are problems that must be addressed. That does not change the basic principles of justice, like the presumption of innocence.
 

Kit B. (276)
Friday January 11, 2013, 9:55 pm

I'm glad you cleared that up Stephen. I was wondering what you meant.
 

Natasha Avital (1)
Saturday January 12, 2013, 7:20 am
@Stephen Brian: It's funny how that "presumprtion of innocence" is set to the highest standard when we're talking about a crime overwhelmingly commited by men against women. The policy you're defending effectively LET A RAPIST GET AWAY. That's no other way to put it. It's a policy that MAKES IT LEGAL FOR MEN TO RAPE WOMEN BY DECEPTION. Do you even comprehend this?! And you're saying it shouldn't be replaced because... women might lie abt being raped to save their relationships.You're placing the rights of hypothetical men of not being falsely accused by hypothetical women (yeah, cuase that happens all the time) above the right of women to have legal recourse against rape, something that happens to 1 in 4 women. Way to have priorities, dude!
 

Stephen Brian (23)
Saturday January 12, 2013, 9:47 am
Hi Natasha,

In cases of sexual misconduct, the presumption of innocence is actually set to about the lowest standard for any crime, but it is still there. The law says that a case that really cannot be made, even up to that standard, cannot be used to convict. I am saying we should try to find a way to replace it, allowing convictions for such deception, but we need to find a way that protects people from false accusations.

There is a lot more at stake than the well-being of potential falsely accused people. Faith in the justice-system is at stake, and while protecting women from rape is a very high priority, frankly protecting faith in the justice-system, and with that its ability to continue to function, is higher, partly because such faith is needed to continue to protect people from rape. As you clearly recognize, when someone is set above the law, he or she has no reason to obey it. What too many people fail to realize, however, is that the same applies when someone feels he or she has been set below the law. If a man believes he will be convicted of rape, whether or not he commits it, then the law provides no reason for him not to rape. Any woman whom a man suspects would accuse falsely would effectively lose all protection because he would have nothing to lose. The law would become meaningless. It gets worse: Consider the defensive reaction if men in general were convinced that they could not associate with women they do not know without putting themselves at risk. Forget about going back to the 1950s, no male teachers accepting female students, no males providing services, medical or otherwise to females, obviously gender-segregated workplaces, etc. Motivated by fear, the sexist-like behaviour would be a lot more rampant and thorough than anything seen in centuries in the West. Now imagine the social reaction to rape-cases if people lose faith in the judgment of the courts: Rapists would be treated as victims, not criminals.

Just for some idea of how precarious faith in the justice system is in the U.S., consider every single high-profile criminal case in the last thirty years. Can you find me five where you can honestly say that the media did not bias all potential juries before one could be sequestered? Judges are elected, normally from among prosecutors with a high conviction-rate, and this gives a clear conflict of interest among prosecutors, between seeking justice and career-advancement. Judges face the same conflict: Higher court judges are elected, appointed, whatever (I am not a U.S. citizen and do not know exactly how the system works) from among those with high-profile cases. A surprising result, especially a conviction, can raise a judge's profile. I remember a complaint about what appeared to be such career-advancing abuse when one of the current Supreme Court judges was under consideration by Congress. How much do U.S. citizens generally trust and like lawyers? How much do members of visible minorities trust and like the police?

The entire U.S. justice-system is at risk. Obviously, setting standards of evidence too low for one type of case for one type of crime would probably not undermine the entire justice-system, but I really don't want to see compromises on the presumption of innocence without very good reasons which the public would accept, and, even more importantly, which cannot be generalized to apply to other crimes and cases (to avoid slippery slopes). After really lowering the bar for rape because rapists cannot be allowed to go free, how long do you think it would take to make the same argument for murder, theft, harassment, and other crimes? What do you think the analogous reactions would be? Scarier than the analogous reactions, if it is done too many times, general faith in the justice-system could collapse and then we could really find ourselves looking at a national scale breakdown of social order and bloodbath.
 

Natasha Avital (1)
Saturday January 12, 2013, 9:49 am
@Stephen Brian: "In cases of sexual misconduct, the presumption of innocence is actually set to about the lowest standard for any crime, but it is still there". No, it's not. In no other crime "has previously had sex with the victim" is considered grounds for aquicting.
 

Stephen Brian (23)
Saturday January 12, 2013, 5:45 pm
In cases of rape, it's not "has previously had sex with the victim". It's "has previously had consensual sex with the victim". I'm pretty sure a history of the same offender raping the same victim would not count in the offender's favour. I'm also not so sure it's quite grounds for acquitting, just grounds for dismissing a common argument for conviction, that is should be presumed that the victim would not willingly have sex with a stranger. From what I understand, if witnesses were present and testify that the victim was unwilling, if there are physical injuries or other signs of violence, or if there is some sort of documentation of the event, a history of having had sex would not lead to an acquittal.

Let's look at analogous arguments for, say, theft: Normally, should an alleged thief be convicted of having stolen money on the grounds that money was transferred and there is no reason to for the court to believe the victim to have consented to the transaction? Now imagine the same case if the victim is known to have willingly given money to the thief in the past. The case falls apart. Of course, if witnesses say the victim was mugged, there are entirely separate, and much stronger, grounds on which to convict, which the previous transaction would not negate. The reason why previous sex is such an issue in cases of rape is that the evidence for rape is normally so weak.
 

Natasha Avital (1)
Monday January 14, 2013, 4:25 am
@Stephen Brian: Confessed rapists have not been prosecuted cause htey had previously dated the victim. Learn your facts before you keep pretending it's all abt "evidence". It's abt how much we place men's "right" to sexual satisfaction over women's bodily and psychological integrity. The very fact that we had a man who "HAD SEX" WITH A SLEEPING WOMAN acquited cause that fact apparently wasn't even considered by the judges is enough evidence.
 

Stephen Brian (23)
Tuesday January 15, 2013, 12:36 am
Hi Natasha,

I searched for a case where a confessed rapist was not prosecuted, and found this article:
http://www.star-telegram.com/2012/08/19/4190561/rape-unpunished-in-tarrant-county.html

Tarrant County has a problem with non-prosecution of confessed rapists. There were 141 non-prosecuted cases, of which for "several" investigators could find no reason for the non-prosecution. (For many, the plaintiff had changed his or her story, the ) Those to whom those cases were submitted should be tried, at least, for obstruction of justice. However, other counties did not have the same problem. Also, I could find no reference to cases being dismissed for the reason you mentioned. Can you provide any links or information about such cases?

I would not be surprised if he had sex with a sleeping woman, and if he did, then while I don't know the applicable system, I hope that the case can be re-appealed and it is found that the prosecution's case had been made effectively on those grounds alone. That would re-instate the guilty verdict. If her unconsciousness was only alleged and not established, however, then with the presumption of innocence he may have to walk free. I don't like the prospect of seeing a rapist walk any more than you do, but the core principles of the justice-system must be preserved because without the expectation of a fair trial, people would stop caring about the law entirely.
 

Natasha Avital (1)
Wednesday January 16, 2013, 5:49 am
@Stephen Brian: Please, read the next part very carefully, over and over untill you get it into your head: "Much of the onus for acquaintance rape remains on the victim and her behavior. And there lingers a widespread belief that false rape allegations are often made to exact revenge on a lover or to save face with angry parents, though study after study shows that less than 10 percent of all rape reports are false."

It's this myth abt cunning women lying to get revenge on a poor man (smth that has been proven to NOT occur any more than any other false reports of crime) that creates an atmosphere in which CONFESSED rapists don't go to jail, in which rapes for which there is PHOTOGRAPHIC EVIDENCE don't go to trial.

Take a look at this sentece: " A few years ago, one grand jury rejected every case in which the victim had been drinking, a Fort Worth detective said. You say cruel laws like the one being discussed in this article shouldn't be changed because of "evidence" issues. What more "evidence" do you want that a rape took place than freaking PHOTOGRAPHS?! But these cases get thrown out because the judge, police, prosecutor somehow think it's less plausible that a woman has been raped than that she had consensual sex and then decided to accuse the man of rape to....protect her virtue? Yeah, right, cause in 2013 it's so shameful for a woman to confess she had casual sex (the horror! the horror! Her reputation will be ruined. Or maybe it's to get revenge, since women are such conniving little liars out to wreak havoc in men's lives. THAT MYTH YOU'RE SUPPOTING IS LETTING RAPISTS WALK FREE. STOP SPREADING IT!

PS: I can't find the link, but the case I was talking abt was that of a woman who was raped by her ex-bf while she was slipping in and out of consciousness. He confessed the rape to the police, still no charges were filled. There was no reason given for the police (as usual), but you bet it's cause he was her ex, so he has a "right" to "have sex" with her any time he feels like. Plus, she was drugged and she called him into her house, so she doesn't have a right to her bodily and mental integrity anymore, since she was not a "nice girl".

You say laws like the one discussed here are abt evidence and presumption of innocence. They're not. They're abt making sure only certain women have legal recourse against the violation of their bodies. In the "rape by fraud" case, only married women have a right to have their body and freedom respected. You can see this reasoning on the bill that was proposed to fix this problem: it would only protect women with LIVE-IN boyfriends. The other ones, the ones who are not in a "commited enough" relationship, must suffer the consequences of not following the very strict set of behaviors we have set for women who want to have their fundamental rights respected.
 

Stephen Brian (23)
Saturday January 19, 2013, 9:42 am
Hi Natasha,

There is a problem when confessed rapists and those against whom there is solid evidence do not get convicted. I agree with you there entirely. However, changing laws that help to promote a fair trial and protect the principles of the justice-system are not the cause of that. To the contrary, if people lost faith in the justice-system, they would feel they either had nothing to lose by breaking the law or nothing to gain by obeying it.

Now, about the onus being on the victim, I know that is a problem in our society in general. However, there is a difference between a cultural problem and a formal one of the justice-system. A cultural problem does not threaten people's faith in the justice-system. As for the studies, we can quote studies back and forth all day, some saying the rate is below 10% and others saying it is above. Here is an article about just how much they vary:
http://missoulian.com/news/state-and-regional/research-varies-on-frequency-of-false-rape-reports/article_fe94e340-39b8-11e1-bbe1-0019bb2963f4.html
Anyways, the trouble with these studies, and most others, is that they each present only their own results. There is no tracking of these studies to produce an overall result of all of them together. This leads to situations like the one described here: http://xkcd.com/882/
Seriously, though, in 2013, in a lot of cases, that "virtue" is a serious issue for a lot of people. It's not about having casual sex, but about having casual sex while in a publicly declared monogomous relationship with someone else. That "someone else", whether a spouse, fiance, boyfriend or girlfriend, usually, even in 2013, does not take it well, and that person's opinion also tends to matter as much as the overall reaction of society as a whole. Characterizing a lot of women as "conniving little liars out to wreak havoc in men's lives" is not quite accurate, but in a lot of cases I wish it were further from the truth. Authorities tend to be more interested in covering their asses than doing their jobs, a lot of women know this, and won't hesitate to abuse those authorities because they have no idea what it means for a man to be accused of something like this. They're not out to cause havoc, but they have no idea how much damage they can do. Like I said earlier, I lost a job over a non-allegation once. Can you imagine how you would respond if an unfounded rumour cost you a job? Now consider that men, as a rule, have no recourse whatsoever should this occur. Then there are the hypersensitive ones who were taught from childhood to bring every concern to authorities without verification, and authorities who trust them. They are not "conniving liars out to wreak havoc", but the dynamics have roughly the same effect. I could go into a current story, happening right now with me, where I have reason to suspect something like this may be in the process of causing me much, much more trouble, possibly cutting me off from my intended career-path, but I don't have enough evidence yet to really make an accusation.

I am not an expert on psychology related to trust, but it seems to me like even a low rate of ~5% could easily produce enough anecdotes to destroy people's faith in the system.

I would not jump to the conclusion that in the case to which you referred, charges were not filed because he was her ex. What if she was slipping in and out of consciousness because they both been drinking or using drugs? The "drunk defense" should generally not apply to rape or any other crime, but if two people have sex while neither of them is in a state to consent, what should the justice-system do? Imprison both for raping each other, make it a race to see who can file allegations against the other first, or nothing? It's also possible that the guy was not charged because his victim dropped the charges for her own reasons, because there was some question of duress in the extraction of the confession, because the statement which was reported as a confession did not actually legally qualify as one, or just because the people who made that decision were total scum with discretionary power over the matter.

Laws like the one discussed here are about evidence and the presumption of innocence. They're just not perfect. As a side-effect, they can deny victims legal recourse. The law should be improved, tweaked to eliminate this problem if at all possible, but not abandoned outright.
 

Natasha Avital (1)
Saturday January 19, 2013, 9:48 am
@Stephen Brian: " However, changing laws that help to promote a fair trial and protect the principles of the justice-system are not the cause of that. "

Nope. Very wrong. What helps to promote a fair trial is due process, presumption of innocence and all the other checks and balances we already have in place. What the law cited here does is saying is LEGAL to rape women by fraud unless they are married, it doesn't matter if there's evidence that they were raped. It's NOT EVEN A CRIME. How can you not get that into your head?!

" The "drunk defense" should generally not apply to rape or any other crime, but if two people have sex while neither of them is in a state to consent, what should the justice-system do?"

Unless it's explicitely stated in the law (in things such as manslaughter) there is no such a thing as commiting a crime "by accident". Why the hell would someone be prosecuted for raping someone, if they didn't willingly do it? If both people really were "in no state to consent" then they didn't know what they were doing and genuinely thought they were having consensual sex. Guess what: that's not a crime!

And guess what again: RAPING SOMEONE WHO CAN'T CONSENT IS ALREADY A CRIME, PEOPLE WHO ARE DRUNK OUT OF THEIR MINDS ALREADY HAVE SEX WITH EACH OTHER, AND I DON'T REMEMBER ANYONE BEING ACCUSED OF RAPE IN THOSE CIRCUNSTANCES! So your point is completely irrelevant.
 

Stephen Brian (23)
Saturday January 19, 2013, 10:46 pm
Hi Natasha,

I do understand what the law says. The problem is that sexual abuse-cases can come down to "he said / she said" conflicts which, even with character-witnesses on both sides, would normally be far from sufficient to overcome the presumption of innocence. For rape by deception, there are no signs of struggle, and even photographs would not provide evidence. Short of an audio-recording, confession, or witnesses (who would have to have been accomplices), the only evidence possible is that of character-witnesses. The law ignores the possibility of a witness, confession or recording, which is a major flaw, and declares character-witnesses alone, in the absence of legally recognized monogamous relationships, to be insufficient evidence to overcome the presumption of innocence. I don't like how it is done. In an ideal world, the law would simply set some standard minimum of evidence, rather than have this sideways approach with its potentially terrible side-effects and failure to fully address the issue. Unfortunately, legislators are politicians and the issue is politically charged, with feminist groups traditionally taking one side in U.S. politics and women treated as a voting-bloc, so such an approach may just get the relevant law bogged down in partisan politics, potentially doing more harm than good.

Also, it is entirely possible to commit a crime by accident. There is the principle of due diligence: We are expected to take care not to break the law, up to some standard, depending onthe law. I can't just forget to report income and then say I evaded taxes by accident, nor is ignorance of the need for a valid driver's license sufficient defense for driving without one. Getting drunk and punching someone is assault, and getting drunk and raping someone is, in fact, legally rape as long as the assailant could not, to the satisfaction of the court, reasonably believe that the victim was competent to consent, whether or not the assailant was drunk. We have a responsibility not to get too drunk and then get into a fight with someone else who is equally drunk, and it is an open question whether people are considered to have a responsibility not to get too drunk to know what they are doing under conditions where they may reasonably find themselves having sex with someone else who is equally drunk. My point about that was not about a particular case of someone being brought to trial in those circumstances, but as a possible reason why someone would not be brought to trial after an allegation is made.
 
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