Some Washington State legal news

[Beguile's Mistress]

Even two women or two men are not going to experience rape in the same way as eachother. The situation and their own character are going to be different, there might be similarities but when we're really focusing on victims I think the focus must be individual and not general or group based. Treating people for their personal experiences and their personal needs.

Rape is rape and pain is pain no matter who experiences it.  The same words are used, such as, humiliated, degraded, embarrassed, violated, and dirty when the victim talks about their feelings.  It didn't matter who or what the victim was.  They all talked and felt the same.  I know because I sat with them as they grieved and shivered from fear.  Maybe that is why I can't see the victim as different but only their pain and the sense of degradation they all felt.

[Caehlim]

Rape is rape and pain is pain no matter who experiences it.  The same words are used, such as, humiliated, degraded, embarrassed, violated, and dirty when the victim talks about their feelings.  It didn't matter who or what the victim was.  They all talked and felt the same.  I know because I sat with them as they grieved and shivered from fear.  Maybe that is why I can't see the victim as different but only their pain and the sense of degradation they all felt.

I'm sorry, I certainly didn't mean to imply that anyone feels it less or that their feelings are less important.

I only meant that we should focus on what they feel they need and their own personal path through dealing with it, giving them the space to be individuals and significant in their own right.

[Cassandra LeMay]

I think we are getting pretty far from the original topic. To return to that I would say I have mixed feelings about switching the burden of proof. In general I believe that the law should be applied equally in all cases. In so far - as much as I understand the court decision in question - I find it difficult to think of it as a bad decision if it brings rape trials more in line with other trials.

Where I would rather see an exception made for rape trials is not the burden of proof, but the court procedure itself. I think it would be better if these cases were not handled as a jury trial, but as a bench trial, decided by a judge or a panel of judges. From what I can gather written here by the people courageous enough to share their own personal experiences on these matters, the adversarial nature of court proceedings may be a bigger hindrance to people coming forward than the burden of proof aspect - or at least as much of a hindrance. Perhaps if you took the jury out of the picture, both prosecution and defense would have less incentive to focus on the character of the accused and the accuser and focus more on the facts of the matter instead. There may be other ways too, to shield the people involved from attacks on their character, but coming from a civil-law country where jury trials are not used I am hardly qualified to suggest any specific measures.

[consortium11]

Perhaps if you took the jury out of the picture, both prosecution and defense would have less incentive to focus on the character of the accused and the accuser and focus more on the facts of the matter instead.

The issue is that rape trials can frequently come down to the character of the people involved.

Take one of the "I've started so I'll finish" style rape trials; the two people consensually end up in bed together. Part way through one of the parties say they said "stop", the other party says they never did. The only witness evidence is that they were kissing in public and then went to a bedroom together... neither party disputes that. The physical evidence only shows that they had sex... neither party disputes that. To decide whether it was a rape or not comes down pretty much entirely to how those who decide... be it jury or judge... view the character of the two people involved.

On the original topic, somewhat unfortunately the Washington Supreme Court website seems to have decided that the last day or so would be the perfect time to crash which makes discussing the case somewhat difficult; it's hard to discuss a judgement when you can't actually read a judgement only a few interpretations of it. That said from what little I've read I agree with the judgement... although I obviously reserve my right to change that once I read the case and reasoning itself.

This isn't a situation like raising a self-defence claim when accused of murder. In that case the prosecution has to prove murder beyond reasonable doubt (generally the unlawful killing, with malice aforethought, of another human) and then the defence may raise self-defence as a perfect defence to the crime. The reasoning behind the self-defence defence is that legally a murder did take place but it was justifiable according to the law; the requirements for murder are fulfilled but the requirements for self-defence are so fulfilled. In rape trials consent is part of the crime itself... for something to be a rape there must be a lack of consent. Arguing that the other party consented isn't raising a seperate defence that negates the original crime in the way self-defence is with regards to murder... it's arguing that there wasn't a rape to being with. A central tenant of jurisprudence is that people are innocent until proven guilty and thus it falls on the prosecution to prove it... a change to make the defendant prove their innocence changes that to guilty until proven innocent. If the logic was extended to all rape cases then it would mean that every sexual act is by default rape and everyone who engages in sex is by default a rapist... after all, if it is up to the participants to prove that the other party consented then until they have done so their sexual activity was rape.

That said this seemingly doesn't imply to all rapes... although this actually makes me agree with the judgement more. The reports tend to use the term "forcible rape" to describe the circumstances although whether this applies to RCW 9A.44.040 (Rape in the First Degree) or RCW 9A.44.050 (Rape in the Second Degree) is slightly unclear. Considering the wording it looks like it's part of a discussion on "Forcible compulsion", defined as "physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped". So, in essence we're talking about rapes where the defendant is accused of forcing the other part of have sex either physically or with threats of physical violence/kidnapping.

Self-evidently one cannot have both forcible compulsion and consent, consent being defined as (emphasis mine)"at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact". If one used threats or physical violence to make another "consent" then that consent is not freely given; there are no situations in which there can both be forcible compulsion and genuine consent in the same act. Thus if a defendant proves consent was there they are also disproving forcible compulsion... the two are incompatible. As proving consent disproves forcible compulsion making the defendant prove consent is forcing them to prove they didn't commit a crime... as above that goes against the basic principles of jurisprudence and innocent until proven guilty.

[Beguile's Mistress]

My local new carried two stories yesterday.  One involved a 47-year-old former NFL cheerleader who has been accused of raping a 15-year-old boy.  The other reported on a letter from and 85-year-old nun that was read at a hearing for the 18-year-old man who raped her.  Having seen what goes on in a courtroom when a rape victim is cross-examined by a defense attorney and taking that in the context of the topic of this thread along with some of the comments made in response I kinda got sick to my stomach.