Rape Trial Judge: Don't say Rape!

[Darth Wong]

So which other descriptive terms for criminal acts do you want to ban in court? Stole, stabbed, shot, hit...?

"Stole" is a good example: if there were some legal dispute over a business contract and the witness kept describing the event by saying the other guy "stole" his money while the other guy claimed no impropriety occurred, I think the defense lawyer might be quite justified in telling him to stop using such prejudicial language.

As for the others, they are non-ambiguous physical descriptors: not at all like "rape", which is contingent upon non-physical factors.

[Alyrium Denryle]

So which other descriptive terms for criminal acts do you want to ban in court? Stole, stabbed, shot, hit...?

"Stole" is a good example: if there were some legal dispute over a business contract and the witness kept describing the event by saying the other guy "stole" his money while the other guy claimed no impropriety occurred, I think the defense lawyer might be quite justified in telling him to stop using such prejudicial language.

As for the others, they are non-ambiguous physical descriptors: not at all like "rape", which is contingent upon non-physical factors.

What about cases where there is sufficient forensic evidence to show that consent was, in all likelyhood, not granted?

You know, torn vaginal walls, defensive wounds, etc?

[General Zod]

What about cases where there is sufficient forensic evidence to show that consent was, in all likelyhood, not granted?

You know, torn vaginal walls, defensive wounds, etc?

Does it make any difference? If there's enough evidence, convict him on the evidence. Why bring up prejudicial language during the trial if the evidence stands on its own?

[Superboy]

So which other descriptive terms for criminal acts do you want to ban in court? Stole, stabbed, shot, hit...?

You seem to be missing the very obvious point that some people disagree over what constitutes rape. If a witness says a person shot her, it's not as though there's going to be debate over whether or not what happened was actually a shooting.

"We headed up to my room and he pulled out a gun and shot me" is a very descriptive sentence that has very little ambiguity. It describes what happened in clear and concise words.

"We headed up to my room and he raped me" doesn't describe what actually happened, and it declares guilt where none has been proven.

Do you really not understand the difference?

[Death from the Sea]

Referring to the defendant in a court case as the assailant is going to paint him as guilty before he has been proven to be so. It's manipulative language that has no place in a trial which is supposed to be based on fact. The only thing the defendant is only the defendant until proven otherwise.

but isn't that the prosecutions job, to "paint" the suspect/defendant as guilty? I mean seriously. Next thing down the pipe will be "Well you can't accuse the defendant of committing the crime as that will make him look guilty..." which is pretty close to what we are talking about here.

I suppose the judge saw it as being much the same: if the defendant is not an assailant until proven to be so, then so to is she not a victim until proven to be so. Again, a court case is decided on the body of evidence, and calling herself the victim would essentially be her stating that the defendant is guilty.

The victim not being one until proven so is total bullshit. Where does it state in the law that a victim has had no wrong done to them unless proven in a court of law? The victim of a sexual assault is a victim of a crime. Regardless of who the defendant is (meaning if the got the wrong guy on trial), the victim is still a victim. In this case she can be a victim and the guy can be not guilty, if someone else raped her.

There would be NO TRIAL WITHOUT A VICTIM. You can have a trial without a guilty party but the victim is kinda one of those gotta have things for it to happen.

I've related the story before, but one of my lecturers (who is a lawyer), once explained to us that a cross-examination can traumatise an actual victim of sexual assault to the point where they will refuse to testify (afraid of going through the ordeal a second time) in future. As Darth Wong said, sexual assault is a nasty business; when someone has been raped, having some stone faced lawyer picking at your statements is awful, even if they're not doing it in such a way to scare you on purpose.

that is just my point though. It is already tough enough, without adding extra bullshit for the victim to tap dance around to see their rapist jailed.

[Twoyboy]

Trying not to sound like I'm treading the middle ground on this, it may depend on the context of the case. If all the physical evidence, as Alyrium Denryle suggested, points to rape, and there's some medical testimony to the fact, and what is being decided was whether or not this man is the offender or not, then I have no problem with using "rape". The defence is not arguing otherwise, they are arguing the offender was not their client. I also have no problem with the word "assailant", so long as it's not aimed at the defendant.

However, if they are arguing as to whether or not intercourse, which they both admit they had, was rape, then yes, since they are arguing about whether or not any crime was even committed, these words probably shouldn't be used.

[Alyrium Denryle]

What about cases where there is sufficient forensic evidence to show that consent was, in all likelyhood, not granted?

You know, torn vaginal walls, defensive wounds, etc?

Does it make any difference? If there's enough evidence, convict him on the evidence. Why bring up prejudicial language during the trial if the evidence stands on its own?

you will be surprised how far "she likes it rough" will go, when the jury is looking for a reason to acquit. See my evolutionary hypothesis in the other rape thread.

[Darth Wong]

but isn't that the prosecutions job, to "paint" the suspect/defendant as guilty?

Yes, but with hard evidence, not emotional manipulation. If some (like Alyrium) wish to argue that hard evidence isn't scoring enough convictions so you need to give them more tools, I think it's necessary to go back to square one and ask what a justice system is supposed to do.

[General Zod]

you will be surprised how far "she likes it rough" will go, when the jury is looking for a reason to acquit. See my evolutionary hypothesis in the other rape thread.

That's an absolutely retarded red herring. If the trial is purely evidence based, there is no need for either side to use prejudiced, emotionally charged descriptors.

[Lusankya]

So which other descriptive terms for criminal acts do you want to ban in court? Stole, stabbed, shot, hit...?

You seem to be missing the very obvious point that some people disagree over what constitutes rape. If a witness says a person shot her, it's not as though there's going to be debate over whether or not what happened was actually a shooting.

"We headed up to my room and he pulled out a gun and shot me" is a very descriptive sentence that has very little ambiguity. It describes what happened in clear and concise words.

"We headed up to my room and he raped me" doesn't describe what actually happened, and it declares guilt where none has been proven.

Do you really not understand the difference?

On top of this, it's possible for someone to convince themselves that a rape occured, when in actuality none did, while it's somewhat harder for them to convince themselves that they've been shot/stabbed/etc without the event actually occuring.

Compare the following descriptions:

"I said "no" several times, but he kept going anyway, and I was too scared to stop him, because he'd been angry earlier and had waved a broken bottle in my face."

and

A: "I didn't want to, but I thought he expected it, so I went along with it. And he didn't stop, even though I didn't want to have sex."
B: "Did you ask him to stop?"
A: "No, but..."

The "victim" might convince themselves that they were raped in either scenario, but only one would actually be considered rape. If they were allowed to describe it as rape, then both victims might be tempted to shorten their story to "We went into his room and then he raped me", despite both stories being markedly different.

[Lord MJ]

but isn't that the prosecutions job, to "paint" the suspect/defendant as guilty?

Yes, but with hard evidence, not emotional manipulation. If some (like Alyrium) wish to argue that hard evidence isn't scoring enough convictions so you need to give them more tools, I think it's necessary to go back to square one and ask what a justice system is supposed to do.

If Law and Order is any indication of reality, it is common practice for both the Prosecutors and Defense to use emotional manipulation to sway the jury.

In fact I recall numerous times the prosecutors using the juries emotions and the fact that "Juries don't convict on facts alone" as leverage in plea bargain negotiations.

[General Zod]

If Law and Order is any indication of reality, it is common practice for both the Prosecutors and Defense to use emotional manipulation to sway the jury.

Fortunately courtroom dramas are not good indicators of reality. Emotional manipulation might be common but that's hardly an argument for it being ethical.

[Alyrium Denryle]

but isn't that the prosecutions job, to "paint" the suspect/defendant as guilty?

Yes, but with hard evidence, not emotional manipulation. If some (like Alyrium) wish to argue that hard evidence isn't scoring enough convictions so you need to give them more tools, I think it's necessary to go back to square one and ask what a justice system is supposed to do.

It isnt so much a matter of scoring enough convictions. Convictions are meaningless(or worse) if the person convicted is innocent. It is a matter of maximizing the number of good solid convictions we can get. ANd right now, we dont have it down. The more intelligent, educated people might be able to detach themselves from emotional appeal long enough to only consider the case on hard evidence. But the people in a jury, under the present system in the US(which my argument presupposes) are not like that, they are specifically selected so that the physical evidence will make them yawn and the lawyer will be able to paint some grand emotional narrative. And if my evolutionary hypothesis is correct, even professional juries wont help, because rational actor theory is BS, and people will be swayed by cultural and biological (and thus evolutionary forces) regardless of their level of professionalism.

I think it has to go back farther than the courtroom to solve the problem to be honest. We have to re-examine what we consider crimes, and/or address the reasons why conviction rates for rape (as opposed to other crimes, which juries will convict on much much less evidence)

Because despite all the public blathering about how all rapists are scum, you get people in a jury, and they will acquit for the most asinine of reasons, and there has to be some underlying cause for that. Hell even judges will give light sentences if he thinks a ten year old seduced an older man, or if the woman was scantily clad. That will need to be addressed, or worked into the system.

But that wont happen. We can talk about what is and is not an ideal solution, but in the end we have to work with the system we are given. So, given our options, giving the prosecution more tools with which to... I suppose shame the jury into convicting is the way I can think of to put it, is our best option. It is not as if biological and cultural evolution has not stacked the deck in favor of the defense anyway.

Maybe another option is to split rape up in the legal code into a bunch of more specific crimes, and treat them different legally. But I am not sure we will even manage to get that.

[Superboy]

We can talk about what is and is not an ideal solution, but in the end we have to work with the system we are given. So, given our options, giving the prosecution more tools with which to... I suppose shame the jury into convicting is the way I can think of to put it, is our best option.

The problem with this is that it ignores how strong the evidence may or may not be. It won't just make it easier for the prosecution to convict guilty men, it will make it easier for them to convinct anyone on trial, and it will do so by helping them sway the jury with emotion instead of evidence. This can never be a good thing.

[General Zod]

But that wont happen. We can talk about what is and is not an ideal solution, but in the end we have to work with the system we are given. So, given our options, giving the prosecution more tools with which to... I suppose shame the jury into convicting is the way I can think of to put it, is our best option. It is not as if biological and cultural evolution has not stacked the deck in favor of the defense anyway.

How the fuck does letting the prosecution play the jury's emotions equate into giving them more tools? You just mentioned earlier that false convictions are horrible, so your answer to scoring more solid convictions is. . .make it easier for the prosecution to score false convictions? This seems absolutely briandead to me.

[Alyrium Denryle]

But that wont happen. We can talk about what is and is not an ideal solution, but in the end we have to work with the system we are given. So, given our options, giving the prosecution more tools with which to... I suppose shame the jury into convicting is the way I can think of to put it, is our best option. It is not as if biological and cultural evolution has not stacked the deck in favor of the defense anyway.

How the fuck does letting the prosecution play the jury's emotions equate into giving them more tools? You just mentioned earlier that false convictions are horrible, so your answer to scoring more solid convictions is. . .make it easier for the prosecution to score false convictions? This seems absolutely briandead to me.

Did you not read the entire post? The post was predicated on the idea that false convictions are rare rare events for rape, because the system itself (culturally, not a matter of law, but all the prejudices that people bring to the table) is such that the rate of false convictions would not go up, but the rate of good convictions will.

My point was that juries are already biased against the complaining and favor of the defendant(see my evolutionary hypothesis here. The use of pure clinical terms aids the defense to the detriment of the prosecution.

The defense can paint the defendant as an angel, pulling in his mother as a character witness, and by extension paint the complaining witness as a slut/liar/gold-digger without ever saying anything that would "prejudice the jury" the defendant can get up on the stand and claim the sex was consensual etc etc.

What, if you have your way, can the prosecution do? In a rape trial, the prosecution goes on the defensive, the credibility of their complaining witness is what is really on trial. They can present all the physical evidence in the world, but in the end they have to emotionally convince the jury that there was no consent. The only way to do that is to show them the traumatized victim, emphasis on the traumatized.

With crimes like murder, or robbery, this is not necessary. The physical facts of the case are the only things that can be disputed. Did person A Stab Person B, and did they do it on purpose?

In a rape case, you have to do two things.

1) You have to prove sex happened, which is hard because rape victims are often to traumatized/ashamed to go to hospital and admit to being raped, and have this habit of showering for a few hours to wash away their shame, or the rapist can just use a condom.

2) You have to prove that the accused is the one that had sex with the complaining witness. Kinda hard when they may not have seen their attacker, or there are no nice happy fluids.

If it were just this though, it should not be any harder than a murder conviction. The kicker comes in step three

3) You have to prove lack of consent. You can explain away pretty much any physical trauma seen during a rape with "she liked it rough" "she is into kinky shit and bit me" etc. It does not even require much heart-string-pulling on the part of the defense to get an acquittal, especially because, if my evolutionary hypothesis is correct, they are looking for reasons to acquit.

So what are you going to do, given the reality of the current system, but play the traumatized victim card, and SHOW the jury that there was no consent? By having the crying complaining witness get up on the stand, and say she was raped?

Do you have a better alternative? I would LOVE to see it, especially if it is actually realistic. Which means you dont get to propose massive revisions to our judicial system which are never ever going to occur barring the dissolution of our government and the creating of a new one.

The problem with this is that it ignores how strong the evidence may or may not be. It won't just make it easier for the prosecution to convict guilty men, it will make it easier for them to convinct anyone on trial, and it will do so by helping them sway the jury with emotion instead of evidence. This can never be a good thing.

See above. Hard evidence does not win rape cases, unless the rape charge is attached to a murder charge.

[Darth Wong]

Of course the system is biased in favour of the defendant. That is a deliberate design decision which is integral to the nature of the justice system and is immortalized with the phrase "innocent until proven guilty". If you don't like that, then propose we change that principle to something else. Don't pretend to uphold the concept of innocence until proven guilt and then turn around and complain that anything which is not completely neutral between guilt and innocence is unfair and should be removed.

[Superboy]

... is such that the rate of false convictions would not go up, but the rate of good convictions will.

I don't understand why this would be true. You seem to be arguing that since false convictions are rare, it's okay for them to become a little more common as long as it means there are more good convictions too.

Any tactics used by the prosecution that focus on swaying emotion will have the same effect regardless of whether the defendant is innocent or not. Emotional tactics are designed to bypass the evidence, so they don't discriminate against just the guilty, they hurt the innocent just as much.

Yes, it sucks that a lot of guilty rapists go free, but instating policies that will lead to more innocent men being convicted along with the guilty is not an appropriate solution.

[Alyrium Denryle]

Of course the system is biased in favour of the defendant. That is a deliberate design decision which is integral to the nature of the justice system and is immortalized with the phrase "innocent until proven guilty". If you don't like that, then propose we change that principle to something else. Don't pretend to uphold the concept of innocence until proven guilt and then turn around and complain that anything which is not completely neutral between guilt and innocence is unfair and should be removed.

This is not about that. There is a difference between the legal presumption of innocense and the simple difficulty of provind whether or not consent occured when physical evidence can, by the nature of the physical facts involved in a crime, be explained away by the defense, compounded by a type of crime that the jury is stetching the bounds of imagination to find "reasonable doubt" for.

Note the quotations. There is reasonable doubt and then there is "reasonable doubt". The first being "I think there is a plausible explanation for what we see other than 'the defendant is guilty' "he has an identical twin who was also seen with the victim at about the same time..." would be an example (if such a very strange case were to occur)

Then there is the other type of "reasonable doubt" in which the victim is successfully demonized by the defense and sounds something like "She is responsible for what happened to her because she was dressed so scantily" or "How can you rape your own wife?" (my personal favorite)

You have to show somehow that there was no consent, and to do that, you have to show a victim. Not just a complaining witness, but a real life, flesh and blood crying victim. Rape is not a case where hard evidence speaks for itself. You have to play the proverbial violin to successfully prosecute it.

But maybe I would prefer a redefinition. Something akin to schrodingers cat... "The defendant is both guilty and not guilty until we open the box..."

[Alyrium Denryle]

... is such that the rate of false convictions would not go up, but the rate of good convictions will.

I don't understand why this would be true. You seem to be arguing that since false convictions are rare, it's okay for them to become a little more common as long as it means there are more good convictions too.

Any tactics used by the prosecution that focus on swaying emotion will have the same effect regardless of whether the defendant is innocent or not. Emotional tactics are designed to bypass the evidence, so they don't discriminate against just the guilty, they hurt the innocent just as much.

Yes, it sucks that a lot of guilty rapists go free, but instating policies that will lead to more innocent men being convicted along with the guilty is not an appropriate solution.

Well lets be fair, I can only support my position if the increase in good convictions is larger (significantly) than the increase in false convictions.

The thing is you cannot prove rape occured with physical evidence unless the victim is also dead, or was by definition to young to consent.

[Alyrium Denryle]

ghetto edit to both posts

There is an exception to that, and that is if some kind of hospitalization was required for the victim.... in this case it is possible to prove rape beyond a reasonable doubt with a living victim

[General Zod]

Well lets be fair, I can only support my position if the increase in good convictions is larger (significantly) than the increase in false convictions.

The thing is you cannot prove rape occured with physical evidence unless the victim is also dead, or was by definition to young to consent.

As difficult as rape is to prove, how can you possibly know beyond a reasonable doubt that the person you're convicting is actually guilty without corroborating physical evidence? There's been a significant increase in the number of cases in the last few years where people have been serving 20+ year to life sentences on false rape convictions only to be cleared by DNA testing. Using what you're suggesting I fail to see how the amount of false convictions would do anything but go up.

[Twoyboy]

Well lets be fair, I can only support my position if the increase in good convictions is larger (significantly) than the increase in false convictions.

The thing is you cannot prove rape occured with physical evidence unless the victim is also dead, or was by definition to young to consent.

As difficult as rape is to prove, how can you possibly know beyond a reasonable doubt that the person you're convicting is actually guilty without corroborating physical evidence? There's been a significant increase in the number of cases in the last few years where people have been serving 20+ year to life sentences on false rape convictions only to be cleared by DNA testing. Using what you're suggesting I fail to see how the amount of false convictions would do anything but go up.

As I mentioned before though, in these types of cases wouldn't the defense often not deny a crime has been committed? If both defense and prosecution agree a crime was committed, surely the language used wouldn't bias the jury. The defense are merely claiming "Yes, it's terrible, but my client wasn't even there".

[Alyrium Denryle]

Well lets be fair, I can only support my position if the increase in good convictions is larger (significantly) than the increase in false convictions.

The thing is you cannot prove rape occured with physical evidence unless the victim is also dead, or was by definition to young to consent.

As difficult as rape is to prove, how can you possibly know beyond a reasonable doubt that the person you're convicting is actually guilty without corroborating physical evidence? There's been a significant increase in the number of cases in the last few years where people have been serving 20+ year to life sentences on false rape convictions only to be cleared by DNA testing. Using what you're suggesting I fail to see how the amount of false convictions would do anything but go up.

Are you capable of not making strawman arguments? Did you fucking read THIS. I was responding to you when I fucking wrote it.

1) You have to prove sex happened, which is hard because rape victims are often to traumatized/ashamed to go to hospital and admit to being raped, and have this habit of showering for a few hours to wash away their shame, or the rapist can just use a condom.

2) You have to prove that the accused is the one that had sex with the complaining witness. Kinda hard when they may not have seen their attacker, or there are no nice happy fluids.

If it were just this though, it should not be any harder than a murder conviction. The kicker comes in step three

3) You have to prove lack of consent. You can explain away pretty much any physical trauma seen during a rape with "she liked it rough" "she is into kinky shit and bit me" etc. It does not even require much heart-string-pulling on the part of the defense to get an acquittal, especially because, if my evolutionary hypothesis is correct, they are looking for reasons to acquit.


Get that? Are you actually going to read it? You cannot prove rape beyond a reasonable doubt without physical evidence. But physical evidence is not all you need. I am not moving the goalposts here, you just cant or wont read.


And since when the hell does rape ever get someone 20 years in prison? Are you sure those are rape cases and not rape+murder?

[Alyrium Denryle]

Also: All I am proposing here is maintaining the status quo. A few judges aside, prosecutors already put the complaining witness on the stand and play the proverbial violin. They already bring her shrink to the stand to tell the jury she is in therapy for PTSD, and have the guy describe her symptoms, etc. They already allow her to say "He raped me"

What you guys propose would certainly decrease false convictions, but would also sink the real convictions below their already pathetic frequency of cases brought to trial.