# Is it Rape??



## anapascualina

Me llama mucho la atención como los medios comunicación, polícia, trabajadores sociales, jueces y sociedad en general juzgan el tema de las violaciones.

Citando a Susan Estrich, me gustaría plantear una pregunta para saber la opinión general acerca del concepto de violación. Espero que se animen y este sea un apasionado debate. Gracias



> "This is a case he did not prosecute. He considers it rape- but only "technically" [He is an assistant district attorney in a large Western city].
> This is why. The victim came to his office for the meeting dressed in a pair of tight blue jeans. Very tight. With a see-through blouse on top. Very revealing. That is how she was dressed. It was, he tells me, really something. Something else. Did it matter? Are you kidding!



The rest of the article can be found HERE

Estrich, S: “Is it Rape?”183-193 in Searles, P. and Berger R.J. (edit) (1995):_Rape and Society. Readings on the Problem of Sexual Assault. _University of Wisconsin- Whitewater


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## timpeac

Surely it's black and white - you say

*She said no*, she didn´t want this, and got up to leave. He pulled her back on the bed and *forced himself on her*.

Surely that's the definition of rape, isn't it?

Rather than "was it really rape" perhaps the attorney was actually (and callously) answering the question "is this a rape with a realistic chance of securing a conviction" then the answer may be different. I don't know a lot about what is necessary to secure a conviction but this would be his word against hers so since you need to prove guilt rather than show innocence I suspect not.

So a rape in reality? - No doubt all. Which can be proved sufficiently for a conviction? - Not so clear.


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## cuchuflete

Hola Ana,
Es violación. Punto y.....no el fin.

That it is rape, according to facts presented, is not in question.

I wonder about the date of the events.  I fear that this kind of attitude persists in a supposedly enlightened society. The clothing of a rape victim may be provocative.  That does not justify rape.  The behaviour of a victim may be exceedingly stupid.  That could increase the likelihood of rape, but does not justify or excuse it in any way.


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## timpeac

Cuchu could well be right - perhaps this attorny was questioning whether a rape can be said to have occurred at all because of how the victim was dressed etc. I would hope not in this day and age - which is why I suggest perhaps he was expressing himself very badly and really talking about "a convictable rape". The article itself doesn't make it clear, but the more I think about it the more I fear Cuchu is right...


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## opsidol

Violación sin lugar a dudas. Pero la chica fue una chingada.


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## zebedee

When 'a woman says no' and 'a man forces himself on her', it's rape.
The fact that she did not struggle against him does not change that, but it does make a more difficult defense case for the attorney as it takes away any physical evidence, leaving only the woman's word against the man's.

In 68% of rape cases in USA, the rapist is known by the victim. Only 32% are committed by strangers. (source: Rape Statistics) 

I do wonder where she thought the situation was going to lead when she accepted an invitation from her ex-lover to watch a porn film together, chose to dress in a transparent blouse and lie on his bed while he gave her a foot massage. Did no alarm bells ring in her head at any point in the procedures?

However this doesn't detract from the unavoidable fact that sexual intercourse without the consent of both parties is rape.


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## cuchuflete

Just to say it another way....

It appears, from the limited evidence presented, that we are
discussing two stupid people.  One is such an absolute idiot that he cannot understand a word as simple and precise as "No".   The other is so witless as to put herself in a situation likely to lead to an outcome she doesn't want.

All of that said, it is rape.  It is wrong.  
Stupidity is not a crime.  Rape is.


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## siljam

Stupidity is not a crime...except in politics.


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## timpeac

cuchuflete said:
			
		

> Just to say it another way....
> 
> It appears, from the limited evidence presented, that we are
> discussing two stupid people. One is such an absolute idiot that he cannot understand a word as simple and precise as "No". The other is so witless as to put herself in a situation likely to lead to an outcome she doesn't want.
> 
> All of that said, it is rape. It is wrong.
> Stupidity is not a crime. Rape is.


 
If I may - _three_ stupid people, the third being the attorney who thinks that the victim's stupidity means that the rape is only technical (as opposed to moral, I presume).


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## cuchuflete

timpeac said:
			
		

> If I may - _three_ stupid people, the third being the attorney who thinks that the victim's stupidity means that the rape is only technical (as opposed to moral, I presume).



"Stupid" doesn't begin to describe the attitude and thought process of the attorney.  We need to add prejudiced, ignorant, incompetent, and a few more terms not appropriate to publication in this forum.


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## timpeac

cuchuflete said:
			
		

> "Stupid" doesn't begin to describe the attitude and thought process of the attorney. We need to add prejudiced, ignorant, incompetent, and a few more terms not appropriate to publication in this forum.


 
Haha, quite right .

Actually - what does this actually tell us about the US justice system.

Moral objections aside the text says that "he (the attorney) considers it rape" and "this is a case he did not prosecute".

Could someone please explain to me what this means - what does "an assistant district attorney" do? Does this mean a) that he decided that the case shouldn't be brought to court or b) simply that he didn't want to represent her?

If a) - do you really have a justice system where one person effectively pre-judges a case and doesn't allow it to come to court (and moreover in a situation where they think a crime has been committed) or if b) so this is a kind of "anti-moral" lawyer? Despite believing that a crime has been committed (and so a potential case to win) because he believes for the woman to win such a case it would be morally wrong he refuses the case (much in the way you would hope moral lawyers (hehe) would refuse a case where they believe the accused to be guilty).

I find either of these options hard to believe, so is there perhaps another explanation? It is principally for this reason that I suggested that perhaps this was a linguistic misunderstanding and the callous lawyer really meant by "it was only a technical rape" that "the woman may have been raped but since we could never prove it in law that is a pure technicality". Callous, but in some ways a preferable state of affairs to that suggested by a) or b).


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## asm

I am sorry for coming late to this thread; I see things differently:

Although we don't have enough evidence to know all the details, I think the girl went to his place to be raped and then to claim justice. I think this case was set before it happened. This girl used to have sex with the guy; she knew how he'd react with those stimuli. She planted everything (or at least part of it). 



Is it rape? YES, it is, and she knew it before hand. I don’t see anything but retaliation. 
  Was he an abusive partner? Did he deserve this? Is this an “ethical” way to stop some unhealthy relationships? I don’t know. But she was not an idiot, she knew it. She lured this guy and he bit the bait.



			
				cuchuflete said:
			
		

> Just to say it another way....
> 
> It appears, from the limited evidence presented, that we are
> discussing two stupid people.  One is such an absolute idiot that he cannot understand a word as simple and precise as "No".   The other is so witless as to put herself in a situation likely to lead to an outcome she doesn't want.
> 
> All of that said, it is rape.  It is wrong.
> Stupidity is not a crime.  Rape is.


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## emma42

I am not going to dignify asm's post with a response.

Re Timpeac's post #11.  Unfortunately, the legal system in England works just this way.  Cases are judged  by the Prosecution before they come to court.  Because of pressure of time and resources, a prosecutor, reviewing a case to  be heard, has to decide whether there is sufficient likelihood of a conviction,  based on the evidence.  This does leave some room for manoeuvre, as a prosecutor may think that (for example, in a case of "his word against her's) the woman will make a convincing witness.  However, the figures speak for themselves - a huge proportion of rape complaints are not prosecuted and a huge proportion of rape prosecutions do not end in convictions.  I am so sorry I have quoted "figures" and then not quoted figures(!), but this is a fact.


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## maxiogee

asm said:
			
		

> I am sorry for coming late to this thread; I see things differently:
> 
> Although we don't have enough evidence to know all the details, I think the girl went to his place to be raped and then to claim justice. I think this case was set before it happened. This girl used to have sex with the guy; she knew how he'd react with those stimuli. She planted everything (or at least part of it).
> 
> 
> 
> Is it rape? YES, it is, and she knew it before hand. I don’t see anything but retaliation.
> Was he an abusive partner? Did he deserve this? Is this an “ethical” way to stop some unhealthy relationships? I don’t know. But she was not an idiot, she knew it. She lured this guy and he bit the bait.



So some unfortunate guy was totally unable to control himself when presented with a certain stimulus?
Get him off the streets!

Has he *no* self control? 
Is he entitled to obey every response his body gives to *any* stimulus he comes across? 
Aaaawwwwww the poor guy!


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## danielfranco

I have always found it alarming that some people might find the idiom "they [he/she] had it coming", when used in these type of situations, to provide some kind of... I don't know, context? Explication? Extenuating circumstances?
Rape is rape... 
As far as I'm concerned, all systems can be "go" (candles lit around bed, rose petals on the floor, no garments in sight, supine positions) and still a woman should have the right to say "no, hold on, I've changed my mind" and expect the partner to back the hell away.
Unrealistic? Who gives a flying flock? Every woman should expect no less from anyone. Some things are not a "point of view" discussion items.


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## emma42

Re daniel's post #15.  This is, indeed, the law in my country.  

When I was 16 I was walking down a street in broad daylight and a man walking towards me sexually assaulted me.  I told this story to a boyfriend many years later and his very first response was "What were you wearing?"!!!  Unbelievable.

This sort of attitude is still prevalent, even amongst women, although the courts and attitude of the police  have improved _somewhat._


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## asm

I am not defending the guy. We were not there, we are not witnesses, and we don’t have more information than just few lines from an email or something like that. I am not defending the guy. I do think the lady was raped. I also agree that the guy cannot control himself and probably is a worthless person. 

  My point was, and still is, that the lady knew, beforehand, that the guy couldn’t stop, couldn’t control, and couldn’t respect her dignity. I cannot prove my hypothesis or my  null hypothesis, but with the information provided it’s impossible to contradict me (we can disagree, however). 
  I didn’t post my comments to argue if the case is or isn’t rape (it is, period). My point was that the lady was not stupid, she knew that beforehand. According to my perspective she knew she could be raped, and she was. 

  To me, it’s almost impossible to think that she didn’t know he wouldn’t stop with a “NO, THANK YOU”.

  Just put the information together:

  1.- An ex-boyfriend invites the girl to see a porno movie, she agrees.
  2.- She wears suggestive clothing (I don’t think this is an excuse to rape anybody, but in this circumstance these mistakes trigger or accelerate some undesirable outcomes). 
  3.- He starts seducing her, the same way he used to do; she agrees.
  4.- He invites her to go to bed; she agrees.
  5.- He touches her feet; she doesn’t refuse.
  6.- He wants to go on, and she says no. 
  7.- ????????????????????????????????

  You don’t have to agree with me; but nobody can prove anything. It’s just sharing our points of view. And again, is it rape? YES, it is. Did she know in advance the outcome? ???????







			
				maxiogee said:
			
		

> So some unfortunate guy was totally unable to control himself when presented with a certain stimulus?
> Get him off the streets!
> 
> Has he *no* self control?
> Is he entitled to obey every response his body gives to *any* stimulus he comes across?
> Aaaawwwwww the poor guy!


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## emma42

Hello asm.  If you believe it was rape, how do you explain your uses of the words "lured" and "retaliation"?

If it was rape, it is not a question of "retaliation", it is a question of justice, no?


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## asm

Although it's not common, and some times stupid, some people have self-destructive behaviors up to this level. Are you aware that sometimes people who over speed their cars are testing the limits? Some people are just "playing" with the circumstances. It’s likely that the lady knew that already and despite the risk, she went to face Mr. Rapist.
   However, I have another hypothesis:

   In this case we have very little evidence, and we are just trying to “guess” what happened, or what their intentions were. To me this lady was testing the limits. What does she win? Putting this guy in jail, or something similar? There is no doubt that Mister Rapist’s life has changed since this unfortunate event. Don’t you think this guy is living another life since he last saw SPLASH?
   She had had sex with the guy, he knew how to manipulate or control the situation. She knew that watching a porno video lying on the bed with this guy could trigger something else (I mean, his (violent?) desire for sex). If she wanted to retaliate, she had little to lose and a lot to win, don’t you think?
   This is only a “hypothesis” about the motives; I am not trying to judge the case or the people involved. The only thing is that I don’t believe that the lady was raped with out her knowledge (not consent, however-different things). 
   Finally, believe me, I think rape is terrible and should be condemned; it is one of the worst crimes in our societies. However, Ms. Splash knew she was entering the lion’s cage with a big piece of meat, and, according to my perspective, she had a reason for that. I have plenty of ideas, but none can be tested








			
				emma42 said:
			
		

> Hello asm.  If you believe it was rape, how do you explain your uses of the words "lured" and "retaliation"?
> 
> If it was rape, it is not a question of "retaliation", it is a question of justice, no?


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## gato2

Aunque estoy totalmente de acuerdo en que una violacion siempre es una violacion sean cuales sean las circunstancias y que una persona siempre tiene derecho a decir que no, pienso que asm tiene parte de razon.

Nada exime al violador de lo que ha hecho (y debera pagar por ello ante la justicia) pero la historia tal como esta explicada es totalmente incomprensible. Tendria que tener mas datos para opinar pero ¿que puede empujar a una persona a ir a la cama con otra viendo peliculas porno si no es para mantener relaciones sexuales?

Ya se que es el violador quien cometio el delito y que es injusto juzgar a la mujer, pero pienso que en esta historia hay algo que falta.


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## ElaineG

The district attorney's opinion is obviously stupid.  But it occurs in a context.  Resources for prosecution are always limited.  Most cases are disposed of without trial -- not prosecuted, plead, whatever.

When it comes to rape, the jury system, both here and in the UK, is an enormous obstacle.  The victim is always put on trial, despite numerous legal innovations to address that problem.

One of my best friends was raped by a stranger on her way home from a bar a few years back.  She was dragged into  in a courtyard between two buildings where numerous witnesses, including those who called the police, heard her protests and screams.  The perpetrator raped her vaginally and orally and beat her up.  The perpetrator was apprehended as he tried to put his clothes back in order prior to fleeing the scene.

I met her at the hospital that night and accompanied her to her police photographs -- she was covered in bruises -- she had been struck in the face several times, she had scratches on her sides and legs, and there was obvious bruising and trauma in her genital area.  

The prosecutor and the police were entirely on her side. The police expressed (privately) several times the desire to simply beat the s.t out of the perpetrator and throw him in the river.

At the trial, the perpetrator's girlfriend sat in the front row with his parents every day.  She testified that her "fiance" was a loving man who was attending school at night and working to support her and their child during the day.

The defense managed to adduce that my friend was drunk as a skunk at the time the attack happened (2:30 am on a Saturday night), that she was walking home from a bar late at night in her reasonably provocative Saturday night attire, that she had had consensual sex with her boyfriend earlier that same evening, and that she had flirted, danced and even made out with a man not her boyfriend at the club she had been to that evening.  None of this had anything to do with the perpetrator, of course, who was a complete stranger and who had simply followed my friend from the bar and waited until they were in a deserted area.  

The perpetrator, of course, did not take the stand, but his attorney spun a hypothesis that my friend had picked him up at the bar and then started protesting when she feared they had been seen to cover up her infidelity to her boyfriend.

The jury returned a not guilty verdict.  My friend had been demonstrated to be a drunken slut, who got what was coming to her.  The bruises, rape kit evidence, the testimony of the reporting witnesses and her obvious psychological trauma counted for nothing.  Stereotypes of what women should be and how women should act:  don't get too drunk, don't dress sexily, don't want home at night alone, don't flirt if you have a boyfriend, don't have sex with your boyfriend if you are not married, etc. etc. took over.

After seeing that miscarriage of justice, I understand the attorney cited above's hesitation.  I don't condone it.  But until the people who make up juries change their attitudes -- which is perhaps happening, slowly -- the hard cases stand little chance of conviction.


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## Brioche

asm said:
			
		

> :
> 
> Finally, believe me, I think rape is terrible and should be condemned; it is one of the worst crimes in our societies. However, Ms. Splash knew she was entering the lion’s cage with a big piece of meat, and, according to my perspective, she had a reason for that. I have plenty of ideas, but none can be tested


 
May be I am a heartless bastard, but it seems to me there are degrees of wickedness in non-consenual sex, as there are with everyother crime.

Try this scenario: A woman invites a man to have intercourse. She then says "Stop! Get off!". He doesn't stop for 30 seconds. He is a rapist.

There was a case in Perth, West Australia like this. Kevin Ibbs was convicted in 1987, and jailed for failing to stop having sex 30 seconds after she had withdrawn consent. To be strictly correct, rape, as such does not exist as an offence in West Australia. In WA, it is "aggravated sexual assault"

Fourteen years later, the woman involved and Mrs Ibbs ex-wife confessed to having set him up.


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## Ana Raquel

quoted from the article:

*



She said no, she didn´t want this, and got up to leave. He pulled her back on the bed and forced himself on her.

Click to expand...

* 
_she got up to leave_

_he pulled her back on the bed and forced himself on her_

where's the doubt?


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## Frenko

That's what we know:

She told she was raped
She watched a porno movie with her ex-lover (on the bed)
She wasn't hurt, and she didn't fought

That's what I'd like to know:

What does he told?
There are evidences of the rape other than the "victim" witness?

I think those latter points aren't secondary (what if he says she didn't said no? Is it his word against her's?).

*Was it rape?* In my opinion informations aren't enough to decide. Maybe she was raped but she hasn't evidences to prove it, it would be a very sad story.


To asm


			
				asm said:
			
		

> I think the girl went to his place to be raped and then to claim justice ... I cannot prove my hypothesis or my null hypothesis, but with the information provided it’s impossible to contradict me (we can disagree, however)


And I think he put some drugs in her coffee before the rape.... I mean you can't just invent facts when you don't know it (same thing on your second hypothesis). I hope I wasn't rude.


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## Chaska Ñawi

And here I thought that stories like the one Elaine just shared with us had ended, at least in North America, in the late 70's.  That is truly chilling.

My mother and stepfather were lawyers, and were deeply frustrated with certain judges.  One small town judge was very deaf and in deep denial about same; he made his decisions based on how the plaintiffs were dressed.  

Another refused to accept evidence from children about sexual molestation if the evidence was gathered while a parent was present - even if the parent had been silent through the entire interview.  Although many young children were too shy to speak to the police or court personnel without a parent at least in the room, this was irrelevant to him.

This, however, tops everything I EVER heard round the dinner table.


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## Isolde

I tend to agree with gato2.  There is something missing in that picture.  It is hard to believe that a woman could accept such an invitation without thinking that something else is going to happen.  She was not innocent nor inexperienced.  Perhaps there is an ulterior motive for all this scenario.  Having said that, rape is rape...even if the woman is naked, if she says "no", then it is "no".

That is why we are different from animals...or are we????


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## Isolde

Brioche said:
			
		

> May be I am a heartless bastard, but it seems to me there are degrees of wickedness in non-consenual sex, as there are with everyother crime.
> 
> Try this scenario: A woman invites a man to have intercourse. She then says "Stop! Get off!". He doesn't stop for 30 seconds. He is a rapist.
> 
> There was a case in Perth, West Australia like this. Kevin Ibbs was convicted in 1987, and jailed for failing to stop having sex 30 seconds after she had withdrawn consent. To be strictly correct, rape, as such does not exist as an offence in West Australia. In WA, it is "aggravated sexual assault"
> 
> Fourteen years later, the woman involved and Mrs Ibbs ex-wife confessed to having set him up.


 
I would say that that is a very unique and isolated case.  As far as the "degrees of wickedness in non-consensual sex"....pleeeeease!  What a lot of nonsense!  There is only one "degree of wickedness" if a woman is forced to have sex.  Apart from physical injury, the trauma that derives from the utter humiliation of having to go through such a heinous crime is enough to give you nightmares for the rest of your life.  There are no "degrees".  Rape or "aggravated sexual assault" is  one big, disgusting, repulsive crime and it should be dealt with without mercy for the perpetrators. No excuses, no situations, no circumstances...if a woman says "no!", it can only mean "no!".


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## asm

We cannot protect her innocence claiming she said “no”; she could have said that in an incomprehensible way, with a very quiet tone, etc.

And in certain way, we are animals, and we, more often than not, behave like them (sex-wise)   

I don't want to argue this point further because I will give the impression I am pro-wild-sexual behavior, and I am not; on the contrary I am against rapists. However, (this is for a different thread) you have raised an interesting question: in sex, how similar and how different human beings are from *other* species? In our sexual nature, what traits are similar and what other are different from other animals?





			
				Isolde said:
			
		

> I tend to agree with gato2. There is something missing in that picture. It is hard to believe that a woman could accept such an invitation without thinking that something else is going to happen. She was not innocent nor inexperienced. Perhaps there is an ulterior motive for all this scenario. Having said that, rape is rape...even if the woman is naked, if she says "no", then it is "no".
> 
> That is why we are different from animals...or are we????


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## Tatzingo

ElaineG said:
			
		

> When it comes to rape, the jury system, both here and in the UK, is an enormous obstacle.  The victim is always put on trial, despite numerous legal innovations to address that problem.



Elaine,

I agree with what you've said. Instead of the accused standing trial, it's often the victim who has to suffer her second ordeal in court when confronted with Counsel cross examining her about her sexual history, drinking habits, attire...
Many victims are put off coming to court because of the ordeal that they will face there and it's no wonder why conviction rates for rape charges are so low even when all the evidence is there for what should be a slam dunk conviction... and the worst part is, in such circumstances, many cases still go to court because the defence think that the victim will have second thoughts and not show up or that the victim won't be able to win the case as she'll break down over the ordeal of trial and be made to look as though she were the perpetrator...

There is definitely something not right with the current system.

Tatz.


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## emma42

This is so true. When I worked in criminal defence, we would nearly always advise a client arrested for "domestic" violence or sexual assault or rape to make no comment when interviewed by the police (this was before the absolute right to silence with impunity was taken away). This was because in many, many cases, the alleged victim would simply not turn up to give evidence. The accused had the right not to incriminate himself (it was nearly always a man). I went through all sorts of moral turmoil in these cases, but in the end had to act in my client's best (legal) interests, for I was not judge and jury and to have acted so would have been a dangerous precedent. 

Sometimes, of course, the accused man was innocent and would insist on defending himself at the earliest opportunity.  Also, there are reasons other than guilt for exercising one's right to silence.  I just wanted to point that out.


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## maxiogee

I sat on a jury in a rape trial.
It was, on both sides, a farrago of lies, evasions and half-truths.
It was very difficult to sit and listen and not be able to say, "But you're not asking the right questions."
The prosecution did a lamentable job - unless they knew something which wasn't revealed to us.
The evidence presented did not really warrant a case being brought.

However, 
Having said that, rape is a thing which, if it happens, happens between two people (not "only" between two people, note). The resulting trial, if there is one, is between only one of those people and the state. That makes it pretty strange.
There is usually little or no 'evidence' of the crime, but there may be a lot of circumstantial evidence. There are usually no witnesses and those there may be are usually linked to one of the parties in some way.
It usually comes down to one person's word against another's.
Not ideal circumstances for arriving at "beyond a reasonable doubt" conclusions.


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## emma42

Both prosecution and defence are often precluded from adducing certain pieces of "evidence" because such information/opinion/exhibits may prejudice the case of either side or be judged not to serve the interests of justice.

In many cases, what evidence can and can't be put before a jury is easy to know, but there are times (often in the middle of a trial) when lengthy and complex legal matters regarding admissible evidence are debated in front of the judge in the absence of the jury.  So, the prosecution, for example, may think that it has a case, based on evidence, but a  successful challenge by the defence (sometimes in the middle of a trial for various reasons) may limit the prosecution's case and, in some instances, may result in a successful application to have the case thrown out altogether.


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## gato2

maxiogee said:
			
		

> However,
> Having said that, rape is a thing which, if it happens, happens between two people (not "only" between two people, note). The resulting trial, if there is one, is between only one of those people and the state. That makes it pretty strange.
> There is usually little or no 'evidence' of the crime, but there may be a lot of circumstantial evidence. There are usually no witnesses and those there may be are usually linked to one of the parties in some way.
> It usually comes down to one person's word against another's.
> Not ideal circumstances for arriving at "beyond a reasonable doubt" conclusions.


 
Pocos delitos deben ser mas dificiles de juzgar que el de la violacion. Al menos en España  existe la presuncion de inocencia y es la victima quien debe probar el delito y no  el acusado quien debe probar su inocencia. Esto como dice Maxiogee hace que a veces ciertos casos queden impunes.


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## emma42

It is the same in English law, gato.  There is a presumption of innocence.  It is for the prosecution to prove guilt "so that [the jury] is sure".  "Beyond all reasonable doubt" is not now used.


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## timpeac

emma42 said:
			
		

> It is the same in English law, gato. There is a presumption of innocence. It is for the prosecution to prove guilt "so that [the jury] is sure". "Beyond all reasonable doubt" is not now used.


Wow, I didn't know that. So, just to be clear, the prosecution must _prove_ that a rape occurred? Short of having video evidence or something like that how do they ever get a conviction?


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## emma42

I know, Tim! English law has, for centuries, relied on the presumption of innocence. This is to protect the innocent accused. This does not always lead to justice being done, but no-one has yet found a better way.

Yes, in any criminal trial it is for the prosecution to prove that the accused is guilty. The accused does not have to say one word, call any witnesses or present any evidence whatsoever. He/she can sit there and simply invite the prosecution to prove its case. There are one or two other relevant points, but, in essence, this is how it works.

This is why, for example, it is so important that a rape victim presents herself/himself as soon as possible after the attack so that forensic evidence may be collected.

How do they ever get a conviction? Well, they don't very often. The burden of proof is heavy. A jury cannot convict unless it is "sure" of the accused's guilt. A good barrister can convince a jury that there is reasonable doubt and so it cannot be "sure". Forensic and medical evidence is a big help to the prosecution (semen, hairs, clothing fibres, internal and external bruising or other injury), but if the defence is that sex was consensual or that "she liked it rough", then this kind of evidence will carry less weight. If the accused has, however, said from the off that he/she was nowhere near the complainant and never touched her/him, well forensic evidence will convict him/her.

I represented a woman accused of raping another woman once.  She had actively helped a man to rape another woman and was therefore guilty of the crime itself.


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## maxiogee

emma42 said:
			
		

> It is the same in English law, gato.  There is a presumption of innocence.  It is for the prosecution to prove guilt "so that [the jury] is sure".  "Beyond all reasonable doubt" is not now used.



Is it "beyond *all* reasonable doubt" or "beyond *a* reasonable doubt"?


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## emma42

Well, as I said, it's not used now to instruct the jury.  A barrister may choose whatever words s/he wishes.


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## TimeHP

Coming back to the thread:
Yes, it is rape. Absolutely. No excuses.

Ciao


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## timpeac

TimeHP said:
			
		

> Coming back to the thread:
> Yes, it is rape. Absolutely. No excuses.
> 
> Ciao


 
Non-mod comment - the past few posts were perfectly on topic. It is relevant in reviewing a question on the topic of if a crime has occurred to ask under what circumstances the law considers a crime to have occurred.


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## TimeHP

> Quote:
> Originally Posted by *TimeHP*
> _Coming back to the thread:_
> _Yes, it is rape. Absolutely. No excuses._
> 
> _Ciao_
> 
> 
> Non-mod comment - the past few posts were perfectly on topic. It is relevant in reviewing a question on the topic of if a crime has occurred to ask under what circumstances the law considers a crime to have occurred.


 
Per evitare fraintendimenti, rispondo in Italiano.
Nella mia lingua si dice comunemente 'per tornare all'argomento', senza per questo voler sindacare sulle digressioni.
Credevo che anche in Inglese ci fosse differenza tra 'Coming back' e 'Let's come back'. Se non è così e il mio modo di dire in Inglese suona scortese, chiedo scusa... 
Le digressioni, peraltro, sono interessanti. 
E a me piacciono molto gli off topic... 
Quello che penso io sull'argomento è che non ci sono attenuanti: se una donna o un uomo dice 'no' e l'altra persona continua a fare ciò che vuole, 'usa violenza': violenta, cioè, la decisione presa in quel momento di non continuare ciò che all'inizio poteva essere sembrato piacevole.
E questa, in Italia, non è solo la mia opinione: la legge punisce lo stupro in una situazione analoga.
Ciao
-------------------------
_I'd like not to be misunderstood so I speak in Italian, and here I try to give you a translation into English: in my language we usually say 'per tornare all'argomento/coming back to the thread', and this is not a way to find fault with digressions._
_I belived that in English there was a difference between 'coming back to...' and 'Let's come back...'_
_But if my expression sounds rude, I apologise. _
_Digressions are interesting._
_And I like off topics..._
_What I think about the thread is that there are no excuses: if a man or a woman says 'no' an the other person keeps on forcing her/his partner, this person is doing violence: he/she is violating the decision his/her partner took not to go on with what at the beginning it might have seemed pleasant._
_In Italy this is not only my opinion: the law punishes rape in a similar situation._
_Ciao._


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## timpeac

TimeHP said:
			
		

> Per evitare fraintendimenti, rispondo in Italiano.
> Nella mia lingua si dice comunemente 'per tornare all'argomento', senza per questo voler sindacare sulle digressioni.
> Credovo che anche in Inglese ci fosse differenza tra 'Coming back' e 'Let's come back'. Se non è così e il mio modo di dire in Inglese suona scortese, chiedo scusa...
> Le digressioni, peraltro, sono interessanti.
> E a me piacciono molto gli off topic...
> Quello che penso io sull'argomento è che non ci sono attenuanti: se una donna o un uomo dice 'no' e l'altra persona continua a fare ciò che vuole, 'usa violenza': violenta, cioè, la decisione presa in quel momento di non continuare ciò che all'inizio poteva essere sembrato piacevole.
> E questa, in Italia, non è solo la mia opinione: la legge punisce lo stupro in una situazione analoga.
> Ciao


Well I wouldn't have considered the last few posts as "digressions" in the first place!! But I know it's not always easy to get the right nuance in another language. I agree with you that a simple "no" is enough to turn it into rape, but without cameras or microphones being placed everywhere in reality it can't be enough to secure a conviction because it is impossible to prove. Although this crime is so terrible, we have to stick to "innocent before proven guilty" I think.


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## maxiogee

Just to show my comments about "beyond a reasonable doubt" to be on-topic, my fellow jurors on the rape case we heard all agreed with me that something untoward had happened on the night in question.
Both parties said things the following day in statements to the Gardaí (Irish police) which they contradicted in court.
The things we heard left us with doubts - both reasonable and unreasonable - about what had apparently happened that we had little choice but to acquit. I was the only one who felt that he was guilty enough (beyond an implausible doubt, for me) to convict. I argued my case to people who just didn't care. They hadn't heard enough from the complainant to show that she really hadn't wanted anything to happen.

Not only were my fellow-jurors lacking in enthusiasm for the case, I got the distinct impression that the barristers and the Gardaí who gave evidence were only going through the motions.


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## TimeHP

> Well I wouldn't have considered the last few posts as "digressions" in the first place!! But I know it's not always easy to get the right nuance in another language. I agree with you that a simple "no" is enough to turn it into rape, but without cameras or microphones being placed everywhere in reality it can't be enough to secure a conviction because it is impossible to prove. Although this crime is so terrible, we have to stick to "innocent before proven guilty" I think.


 
I'm happy you agree with me.
At least 2 million women are subjected to physical abuse each year.
A lot of them don't have the nerve to face a trial. They fear people could not believe them because they don't go out with a microphone in their
bags...
I know, this is just one side of the coin, but we tend to reverse it 
too often.
Ciao


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## timpeac

TimeHP said:
			
		

> I'm happy you agree with me.
> At least 2 million women are subjected to physical abuse each year.
> A lot of them don't have the nerve to face a trial. They fear people could not believe them because they don't go out with a microphone in their
> bags...
> I know, this is just one side of the coin, but we tend to reverse it
> too often.
> Ciao


But, judging from what Emma says above, they are right to fear that people would not believe them. Not because they haven't really been raped but just that the law requires such a weight of evidence to get a conviction. I can't see that it would do any good to make a person who had been raped stand up in court, go through all the details and relive the experience if there is no chance that a conviction could be secured. By not taking it to court they are not saying that they weren't raped, just that there is no way to prove it _to the satisfaction of a court_.


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## gato2

TimeHP said:
			
		

> Coming back to the thread:
> Yes, it is rape. Absolutely. No excuses.
> 
> Ciao


 
Esto es un foro y aqui podemos dar nuestra opinion sin ninguna repercusion legal. Pero, imaginate que eres parte de un jurado y tienes que juzgar un caso asi en el que ella dice que el si la violo y el dice que no, y en el que ademas como en este caso no hay ninguna prueba a favor del delito.

La cuestion no es tan sencilla porque no estamos hablando del tema de la violacion en si del cual todos estamos de acuerdo en que merece la carcel sino del futuro de dos personas. A mi no me gustaria nada tener que decidir sobre un caso asi, porque aunque puedas sospechar que es culpable ¿como te arriesgas a mandar a la carcel a alguien sin ninguna prueba real?


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## TimeHP

> A mi no me gustaria nada tener que decidir sobre un caso asi, porque aunque puedas sospechar que es culpable ¿como te arriesgas a mandar a la carcel a alguien sin ninguna prueba real?


 
And you're perfectly right.
But I was not talking of that.
I tried to say that if someone forces someone else to have sex, it's rape.
It's rape from the moment his/her partner says _no,_ even if previously this partner had said _yes,_ no matter what kind of sexy jeans she/he would have been wearing. 

Ciao


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## gato2

TimeHP said:
			
		

> And you're perfectly right.
> .
> It's rape from the moment his/her partner says _no,_ even if previously this partner had said _yes,_ no matter what kind of sexy jeans she/he would have been wearing.
> 
> Ciao


 
En esto estamos totalmente de acuerdo.


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## emma42

Just coming back to the question of "being sure" and juries. 

Of course, a barrister can argue in closing speech to the jury that there is reasonable doubt and therefore the jury cannot be "sure" of guilt, until the cows come home. However, it is really important to remember that juries are NOT (mainly) lawyers and can ignore what might seem to others to be reasonable or even HUGE doubt. 

Jurors are ordinary men and women, usually with no legal training, and, despite the exhortations from the Judge that they must decide guilt or innocence "on the evidence alone", they often do not. Also, "evidence" can include what the jury thinks of someone's demeanor, whether (put simply) they think a witness is a lying so-and-so or not. So, if it does come down to whether a jury believes a complainant or a defendant, in the absence of any other evidence, a conviction might be secured if the jury thinks X looks like a liar!

There are also other considerations relevant to whether a jury thinks someone is lying or not, such as "similar fact" evidence, but I can't go into all the rules of evidence here! Just trying to give some basic facts.


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## TimeHP

> Jurors are ordinary men and women, usually with no legal training


Maybe for this reason we have no juries in Italy, only the judge decides guilt or innocence...

Ciao


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## emma42

Interesting, Timehp.  There are, periodically, moves to get rid of juries in, for example, complex fraud cases in this country.  But people like the jury system.

 In rape cases, I think it would be terrible if the decision on a witness's demeanor were left to a single judge.


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## timpeac

TimeHP said:
			
		

> Maybe for this reason we have no juries in Italy, only the judge decides guilt or innocence...
> 
> Ciao


Very interesting, and maybe this goes some way to explaining the earlier confusion as to whether a legal interpretation of rape was _practically_ relevant or not, since for the Italians the difference is not so large as for the Brits or Yanks.

Goes to show how both our language and culture heavily influence our thoughts.


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## emma42

It definitely does, Tim. 

Ooh, I forgot to mention a really important point: there is what is called an "element of recklessness" in relation to rape cases. It does not have to be proven that the accused knew that consent was absent. S/He can also be convicted on the basis that he was "reckless" as to whether consent was given. Now, "recklessness" is quite a complicated area of law, so I'm not going to go on and on and on........

This element of "recklessness" is often relevant when, for example, a complainant (the person who says s/he has been raped) was drunk/intoxicated or it is claimed s/he was. Was she capable of giving or withholding consent?

There was a move towards (or perhaps it actually happened - can't remember) making people sign an agreement in some/a American college/s a few years ago. So you had to sign an agreement that you consented to a kiss/fumble/whatever!

In the case we are discussing, she had had a drink, hadn't she?

I am only talking about English law.


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## gato2

emma42 said:
			
		

> It definitely does, Tim.
> 
> Ooh, I forgot to mention a really important point: there is what is called an "element of recklessness" in relation to rape cases. It does not have to be proven that the accused knew that consent was absent. S/He can also be convicted on the basis that he was "reckless" as to whether consent was given. Now, "recklessness" is quite a complicated area of law, so I'm not going to go on and on and on........
> 
> This element of "recklessness" is often relevant when, for example, a complainant (the person who says s/he has been raped) was drunk/intoxicated or it is claimed s/he was. Was she capable of giving or withholding consent?


 
Es posible que sea una cuestion del idioma pero no se si lo he entendido bien.

Si te emborrachas y te acuestas con alguien ¿le puedes acusar al dia siguiente de haberte violado? 

Y si son los dos los que estan borrachos ¿quien se considera que ha forzado a quien?


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## emma42

I hope I have understood your Spanish!

If both parties accuse eachother of rape (which is highly unusual) then there are several options open to the prosecution/police.  I don't know whether this is the place to go into that, though.  It might be going off topic.  Sorry.


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## ElaineG

emma42 said:
			
		

> It definitely does, Tim.
> 
> Ooh, I forgot to mention a really important point: there is what is called an "element of recklessness" in relation to rape cases. It does not have to be proven that the accused knew that consent was absent. S/He can also be convicted on the basis that he was "reckless" as to whether consent was given. Now, "recklessness" is quite a complicated area of law, so I'm not going to go on and on and on........
> 
> This element of "recklessness" is often relevant when, for example, a complainant (the person who says s/he has been raped) was drunk/intoxicated or it is claimed s/he was. Was she capable of giving or withholding consent?
> 
> There was a move towards (or perhaps it actually happened - can't remember) making people sign an agreement in some/a American college/s a few years ago. So you had to sign an agreement that you consented to a kiss/fumble/whatever!
> 
> In the case we are discussing, she had had a drink, hadn't she?
> 
> I am only talking about English law.


 
Yes, we have had some experiments in this country with "behavior" codes that strictly regulate on-campus sex.  In the most famous example, a Midwestern college required that students ask "Can I go to the next level?" before each progressive "step" was taken, and that a verbal response had to be received.  It didn't work that well, as you can imagine.

But campuses remain one of the trickiest areas, simply because of the amount of alcohol and other drugs on hand, and the age of the participates.  A lot of confusion about what is and is not consensual exists, with good reason, on college campuses.  One the on hand, far too many boy still try to get far too many girls drunk or worse, and then do unspeakable things.  On the other hand, the campus speak-out and the casual accusation of "date rape" can often serve as a cover for an incident that didn't turn out as romantically as a girl had hoped.  It's a tricky situation.

Getting back to the legal issues, BTW, the "reasonable doubt" standard is still used in American law.  

The concept of recklessness is not part of the American criminal law on rape -- though perhaps it should be.  In a very famous case in my native town some 20 years ago, a group of students from the high school football team sexually assaulted a mentally retarded girl in a basement using a broom and a baseball bat, among other implements.  Although over 18 youths were there that day, only 4 did any jail time, and very little at that.  Part of the defense was that she "wanted it".  One of the boys even got his girlfriend to tape the victim (mental age of 7) saying that she wanted to do it again.  On some level, the victim did want to do it again, as it was the only time in a life of teasing and isolation that the "popular kids" had wanted anything to do with her.

However, a standard that asked whether evidence as to that kind of "consent" was even admissible might go a ways towards improving our rape law.


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## emma42

Interesting, Elaine.  Yes, I think in England, it might be argued that the girl in question was not capable of giving consent as, in effect, she was a minor.  I am not sure about that though, as I am not au fait with current case law.


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## timpeac

emma42 said:
			
		

> Interesting, Elaine. Yes, I think in England, it might be argued that the girl in question was not capable of giving consent as, in effect, she was a minor. I am not sure about that though, as I am not au fait with current case law.


On a campus But the UK age of consent is 16, how do you mean?

Edit - oh sorry, forget it - you mean because her mental age may not have been the same as the physical one.


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## emma42

I was referring to Elaine's penultimate paragraph.  The victim had a mental age of 7, so might be considered a minor.


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## gato2

Lo de la niña discapacitada me parece un caso a parte y no se si esta regulado de alguna manera en España. Eticamente me parece aberrante pero seria tema de otra discusion hasta que punto tiene derecho a tomar decisiones de este tipo una persona mentalmente discapacitada.

Lo que sigo sin entender es lo del alcohol o las drogas. Porque si te han drogado sin tu consentimiento me parece bien, pero si eres tu el que has bebido o drogado voluntariamente no lo entiendo. Despues de todo si te emborrachas y atropellas a alguien eso es un agravante y no una excusa.


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## emma42

Yes, I agree that cases about mentally incapacitated people might be better served in another thread, but it is an interesting slant on the question of consent.

As to being drunk voluntarily, can you not see that any decent man would not have sex with a woman unless she was capable of giving consent or of trying to fight him off if she did not consent?  The woman might be so drunk that she cannot speak coherently or control her body movements.  This does not make her any less a victim or rape, if that is what occurs.


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## gato2

emma42 said:
			
		

> As to being drunk voluntarily, can you not see that any decent man would not have sex with a woman unless she was capable of giving consent or of trying to fight him off if she did not consent? The woman might be so drunk that she cannot speak coherently or control her body movements. This does not make her any less a victim or rape, if that is what occurs.


 
Tal como lo has planteado tienes razon lo que pasa es que eso hace que en algunos casos la diferencia entre la violacion y la no violacion en muy dificil.


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## emma42

Sin dubito en muchos casos es muy dificil, pero it's up to the man to make sure consent is given.  I say man because it is usually a man.


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