Never mind …

Yeah, you’re digging yourself in further, precisely because who knows what the parties were up to?

I go to your store.
I tell you I’m with the local high school drama department and want a TV.
You assume I want a prop TV.
I really want a TV for the green room.
You sell me a broken TV.
I’m upset and call the police.

Now, prove intent to unlawfully sell a broken TV.

Or I tell you I fix TVs. Or you know my cousin who fixes TVs, or any number of other explanations.

With “TV sales”, I can give you a piece of paper which says “As Is” or “Not guaranteed to work” or “Hey! I never turned it on!”, and you have to make an informed decision, including whether or not you ask to see it plugged in, before you buy.

But with sex, the “transaction” isn’t a single event that’s fixed at a point in time. Sure, some “transactions” are clearly wrong from the start — I walk into the store pointing a gun at you and ask for a TV — but plenty of transactions are right from the start — I hand you a check I don’t know is bad, you hand me a TV you don’t know is broken — and the crime isn’t realized until after the fact.

Another aspect of sex that isn’t like a television is that sex is mostly a private event without witnesses. I come to your house, you make me a nice dinner, we watch TV, and the next thing I know, O.M.G!, you’re slobbering all over me and copping a feel. Who get’s believed here? There isn’t going to be another “customer” who remembers me, or a video camera that shows me waving my gun around, or a receipt book where it says I gave you $25 for that TV.

The problem of prosecuting rape has to be solved by avoiding the problems which are unique to “sex”.

No, there shouldn’t be a law against selling broken tvs (what would all the poor prop masters do?). But working tvs and broken tvs are still inarguably different; I can’t make the case (logically, anyway) that because you’ve previously been known to enjoy watching working tvs, then you’re reasonably expected to be happy to have a broken tv forced upon you. I’m only digging myself deeper into nonsensicality, aren’t I?

To borrow Susan’s coma patient, it would be a similarly ridiculous claim to suggest that since the patient was known to have a sex life (even, say, with the rapist-to-be) ‘before the accident,’ she was obviously open to whoever having sex with her while she’s comatose. I was trying to get at the fact that it should, ideally, be equally ridiculous to make the same claim of someone who has passed out for the night. In practice, what you (FCH) and Susan have said in the last couple comments are the only feasible applications I can see for where I was going with all of that.

Was she drunk? Yes.
Did they engage in some form of sexual conduct? Yes.

Based on those two facts the State needs to be able to prosecute the case and obtain a conviction. If he was also drunk, and the State wants to make that a mitigating factor, fine. That’s something the people should decide as a matter of public policy. But the basic facts above — it is illegal to have sex with a drunk woman should be the law.

Sensible. Provided that we have a standard of “drunk” (as to the woman) and can test for it (or, as in this case, get credible evidence of it). Drunk = unable legally to drive? Perhaps. This is a detail.

I like the framework, though, because it fits so nicely in with sex-with-woman-in-coma. That’s sort of per se rape, because she cannot consent. Or statutory rape, same observation. After all, if defendants can have “diminished capacity” to form the intent to commit a crime, couldn’t the woman in this case have diminished capacity to consent?

He didn’t know she was drunk? Why not? Everyone told him. He couldn’t evaluate that because he was drunk too? Let him plead diminished capacity, and perhaps be convicted of a lesser offense. But don’t let the guy just walk, that’s an insult to the woman.

When we stop taking the assumption that every woman is supposed to be available for sex with anyone always, the burden falls more on the accused to prove that he sought and received consent.

But the system we have is based on the State having to prove the case, not the defendant. And this is a very valuable part of the “innocent until proven guilty” and “guilty beyond a reasonable doubt” model we have. We don’t want the accused having to prove innocence because, generally speaking, innocence is impossible to prove.

Boy meets girl.
Boy chats up girl.
Girl says yes.
Boy hands girl “sex consent form”.
Girl signs form.
Boy and girl get busy.
Girl retracts consent.
Boy cannot prove that girl didn’t retract consent.

Boy meets girl, gets signed “sex consent form.”
Girl gets pissed off, steals form from boy’s pocket, calls police.

Boy meets girl, boy rapes girl, girl calls police.
Boy claims girl stole “sex consent form”.

How does a “defendant proves innocence” model work in these cases? The answer is, the defendant doesn’t because the defendant cannot prove their claim.

The case at hand is one of a woman who was drunk and a man who took advantage of that drunken state. Those are the facts and the State needs to be able to find a way to prosecute that case without any input from the defendant.

Was she drunk? Yes.
Did they engage in some form of sexual conduct? Yes.

Based on those two facts the State needs to be able to prosecute the case and obtain a conviction. If he was also drunk, and the State wants to make that a mitigating factor, fine. That’s something the people should decide as a matter of public policy. But the basic facts above — it is illegal to have sex with a drunk woman should be the law.

To get back to the “The dude sold me a broken TeeVee!” analogy, should it a matter of Law that it is illegal to sell broken televisions? If we put the burden on the defendant, we’re again forced into a situation where the defendant cannot prove either way that the television worked. Absent substantial evidence that the television was broken long before it was sold, we’re down to a “He said / She said” situation — I say it worked, you say it didn’t.

It might be good business practice to plug it in and turn it on, and perhaps that should be codified for the sale of open box used televisions, but sex is not like turning on a television. There is no “Oh no, turn it off! Turn it off!” going on with televisions as there can be with sex.

Would it be a form of double jeopardy if acquaintance rape cases that are ruled ’not guilty’ were automatically referred to something similar to restorative justice programs? Not the reparations part - that almost certainly would constitute double jeopardy. But some sort of situation where the trial is over so it’s safe for the guy to talk about how he saw what he did, and a validating environment for victims to express the impact on them.

That’s an interesting idea, and I can see how in some situations that type of program could be healing both for the victim and for the accused (who may see himself as the victim of what he sees as a false allegation of rape). But I’m not sure about the *automatic* part.

First, it may not be something the court can require of someone who has been acquitted. Second, and more important, the victim herself may not be ready for another encounter with her attacker even in the most supportive and affirming of environment. Still, if handled correctly–and under the right circumstances–being able to confront her attacker may help her in the transformation from rape victim to rape survivor.

And it would also

let her know that despite the acquittal, people still believe that she was raped, that it wasnt something she made up, and that the trauma she is going through is very real. And especially that it wasn’t her fault.

That is why I threw out the question of what can or should be done outside the context of the criminal justice system to help someone whose rapist has “gotten away with it.” I’m guessing that one thing would be to let her know that despite the acquittal, people still believe that she was raped, that it wasnt something she made up, and that the trauma she is going through is very real. And especially that it wasn’t her fault.

Would it be a form of double jeopardy if acquaintance rape cases that are ruled ’not guilty’ were automatically referred to something similar to restorative justice programs? Not the reparations part - that almost certainly would constitute double jeopardy. But some sort of situation where the trial is over so it’s safe for the guy to talk about how he saw what he did, and a validating environment for victims to express the impact on them.

That way we would acknowledge that whether it really was an ‘honest miscommunication’ or if there just wasn’t enough evidence to convict, the fact that an accusation was made at least signifies that the accused needs some sort of education about how pleasant, mutual sexual interactions are supposed to work.

But I’m sure that if such a reform were passed, conviction rates wouldn’t go up, but date rapists, people who apply nonviolent coercion/pressure, etc, will just get reduced sentences. The net result would be to make rape a less-severely punishable crime.

I guess my point sort of is that the crime should be having sex with someone without full awareness of their full consent, not having sex with someone who made it clear enough that it was unwanted. It wouldn’t by any means entirely solve the inherent problems of dealing with rape in our legal system: false accusations would still be possible and therefore necessary to guard against, but they’d be a lot harder to make if the accuser has actively said “yes I want to fuck you”; the accused could still falsely claim that he got that consent, but I still think that’s a huge improvement over “she sent me a text message” being enough to signify consent.

It’s like, say I sell you a broken tv (I know this analogy only applies very narrowly, but bear with me for a sec); I could argue that you came to me seeking a broken t.v., but the burden would be on me to prove that, not on you to prove that you thought you were getting a working t.v. Surely some people have a use for broken t.v.s (prop masters, say), but we assume that the norm is that unless otherwise indicated, people don’t want broken t.v.s. Currently we take the unspoken view that sex (for women, anyway) is an interchangeable commodity and that if she’s slept with one then she might as well have slept with ‘em all, rather than fully recognizing that there’s the wonderfulness of consensual sex (working television) separate from the awfulness of rape (broken television), and that there’s no mistaking or substituting the one for the other. When we stop taking the assumption that every woman is supposed to be available for sex with anyone always, the burden falls more on the accused to prove that he sought and received consent.

If this weren’t a feminist-friendly-only thread, someone would almost surely jump up and say “Like what? A signed consent form?,” so I’ll go ahead and answer them anyway: Yes. If you’re so afraid of false accusations that it trumps your concern for others’ safety, then have your partner sign a form - or, better, don’t sleep with someone whom you so mistrust. The only people who wouldn’t benefit from such a policy would be those who truly aren’t interested in their partner’s consent and just don’t want to give up taking home drunk bitchez who wouldn’t screw them while sober.

I am sorry to say that I feel the “criminal justice” system favors the criminal in cases like these, for so many reasons most of us are already familiar with.

The “innocent until proven guilty” and “guilty beyond a reasonable doubt” standards are in place because the State has significantly more power than the accused in a criminal proceeding. Unfortunately this standard works both ways — it protects the disadvantaged against unfair prosecution when unjustly charged, and it fails to protect the victim when there is inadequate evidence for a conviction on the charges that are presented.

“Believe the victim” as a legal standard is something I’d like to avoid. It would definitely help cases such as rape, but there’s more to criminal law than rape.

Its not quite a solution for this poor girl but may relate to the difficulties for some kiwi women with a point raised by Susan in #20

I would like to see subsequent victims when complaining about the same alleged abuser to be treated with MORE RESPECT and SUPPORTED etc

Meeting abusers who have Protection Orders already in place who are becoming more arrogant and covert when on their prowl can be devastaing!!!!

At the moment with Legal Aid issues as well as all the other obstacles that some rape and abuse victims face here in NZ it kinda gets worse when discovering there are many victims and each goes through the same hard stuff etc. It has just got to change!!

Even if it was something as simple as easing the interrogations or environment that a victim faces if they seek something to help them sleep at night must become easier!!! Not that I think a bit of paper helps stop a serious problem person but even something this simple can be very traumatic for some!!

For example, to get a Protection Order in NZ requires the seeker to face the abuser or harasser or stalker or whatever and it can be worse than even a criminal trial in some cases etc There is no jury to get a PO and sometimes only a victim alone if the support person is denied entryetc. I also have no idea how some victims manage up against an abuser or rapist now with no court building security and no support so believe many victims will give up or struggle or crash etc I believe some abusers will now have defeated multiple POrders and left a trail of victims so finding solutions has got to happen!!!

Without going offtopic on Maia with this thread - my big concern for this victim is that in addition to the current harm, losses and stress she has endured so far - it is simply that without major changes happening, then some of of her future efforts to keep herself safe will also be unsupported or exploited by others etc

We’ve all been at events which were later reported in the newspapers; we can all testify as to the “accuracy” of such accounts.

We need not be surprised if newspaper articles and squibs on the internet about legal cases are confusing and probably inaccurate.

I guess I’m confused as to what’s different in this case.