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(WPTV)   Bad: Woman was molested by a cousin when she was 13. Good: She has gone through therapy and now helps others who are in the same situation. FARK: The molester is now suing the woman for defamation and stalking   (wptv.com ) divider line
    More: Asinine, defamations, stalks, cousins, therapy, sex crimes  
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9532 clicks; posted to Main » on 04 May 2014 at 8:35 AM (2 years ago)   |   Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



133 Comments     (+0 »)
 
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2014-05-04 08:08:38 AM  
He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.
 
2014-05-04 08:39:18 AM  
Does it count as irony that the cure for rape is called the rapy?
 
2014-05-04 08:40:39 AM  

EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.


Yup. Sounds like she needs to learn how to use the word "allegedly".
 
2014-05-04 08:41:04 AM  
I notice WPTV is careful not to mention his name.
 
2014-05-04 08:41:19 AM  
60 days past the statute of limitations when she finally went to police? Ouch...
 
2014-05-04 08:45:16 AM  
I smell Duke.
 
2014-05-04 08:45:33 AM  

EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.


Yes. Don't get me wrong, if he did it: a$$hole.

The problem being he was never convicted so being tagged like this isn't right either.
 
2014-05-04 08:47:49 AM  

rebelyell2006: EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.

Yup. Sounds like she needs to learn how to use the word "allegedly".


Not really:

Foster had a strong case against her cousin with help from investigators at the Boynton Beach Police Department. But they could never prosecuted because the statute of limitations had run out.
 
2014-05-04 08:49:19 AM  
"She has a right to say his name and talk about it and warn people of it and that's exactly what she did," said Darlene Foster, Ashley's mother.

For a second there I thought to myself oh ok here's the legal bottom line...until I got to the last word.
 
2014-05-04 08:49:26 AM  
Haw, haw.
The psychos be psychin'.
It's what they do.

/Stay far far away from the drama, guys and girls.
//Trust me on this.
 
2014-05-04 08:50:57 AM  
It's funny cause people on both sides of the issue will use this same instance as a shining example of how the system is broken.

A bunch of people will use this as an example of Rape Culture.  A sexual deviant using the legal system to abuse and re-violate the poor, innocent victim.
A bunch of other people will use this as an example of how fearful our culture is.  All it takes is a completely unfounded accusation, with no evidence, with no court case, with no conviction to completely destroy a man's life - just because she wants her 15 minutes of fame or to jump start a political career or some such nonsense....
 
2014-05-04 08:52:18 AM  

BeerBear: rebelyell2006: EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.

Yup. Sounds like she needs to learn how to use the word "allegedly".

Not really:

Foster had a strong case against her cousin with help from investigators at the Boynton Beach Police Department. But they could never prosecuted because the statute of limitations had run out.


So she says. It's likely she's right, but it's not certain. The ruling will have to apply to all people in this situation, whether the cops think they had a strong case or not, and I know Fark thinks the police are wrong 99% of the time.

/I think that's how it works
 
2014-05-04 08:54:14 AM  

inglixthemad: EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.

Yes. Don't get me wrong, if he did it: a$$hole.

The problem being he was never convicted so being tagged like this isn't right either.


Fortunately in the USA, truth is a defense in defamation cases. So if he did it, he has zero case (on the defamation charge at least). She just needs to prove that he molested her. The standard of proof in this case would be a preponderance of evidence, which should be pretty simple with the testimony of an investigator from the BPD or two.
 
2014-05-04 08:56:33 AM  

CruJones: BeerBear: rebelyell2006: EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.

Yup. Sounds like she needs to learn how to use the word "allegedly".

Not really:

Foster had a strong case against her cousin with help from investigators at the Boynton Beach Police Department. But they could never prosecuted because the statute of limitations had run out.

So she says. It's likely she's right, but it's not certain. The ruling will have to apply to all people in this situation, whether the cops think they had a strong case or not, and I know Fark thinks the police are wrong 99% of the time.

/I think that's how it works


There would not be any binding precedent in a civil case like this, particularly one that will probably decided on the facts.
 
2014-05-04 09:02:14 AM  
It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.
 
2014-05-04 09:08:03 AM  

The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.


I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.
 
2014-05-04 09:08:19 AM  

The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.


I'm pretty sure that's not how it works. He doesn't have to prove he didn't do it. He merely has to claim it, she then has to prove it by preponderance of evidence (criminal court, beyond reasonable doubt, civil by preponderance). I didn't read the article, but based on this thread she claims there was enough evidence to go forward w/ a criminal case it was just a time limit issue. That evidence would be more than enough for a civil court. She should also counter sue his ass, its as close to justice as she'll be able to get.

Hope the truth, whatever it is, comes out.
 
2014-05-04 09:08:54 AM  

The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.


I don't know. The courts can be pretty farked up. http://www.dispatch.com/content/stories/local/2008/08/16/janecrane.AR T _ART_08-16-08_B1_T0B1RSR.html
 
2014-05-04 09:08:55 AM  

The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.


And you don't see anything wrong with this picture?  Including that you're already defining them as the "rapist" and "victim"?
 
2014-05-04 09:11:08 AM  

The Beatings Will Continue Until Morale Improves: The burden of proof will be on the rapist to prove what the victim said is false


Pretty hard to prove a negative.
 
2014-05-04 09:16:19 AM  
So she went before the state legislature and used his name and picture to convince them to pass a longer statute of limitations.

Dude still has to prove he was damaged, but yea, I 'd say he has a case.
 
2014-05-04 09:21:22 AM  

EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.


/True, even tough she might have "proof", the statute of limitations has run out, and he in this regard is UN-procecuteable.  Or, she just might be pissed at him and trying to fark with his life.  Who knows? It's one of those he said she said things.
 
2014-05-04 09:25:25 AM  

Abox: "She has a right to say his name and talk about it and warn people of it and that's exactly what she did," said Darlene Foster, Ashley's mother.

For a second there I thought to myself oh ok here's the legal bottom line...until I got to the last word.


/Even if it HAD come from a lawyer, it's slander and you can be taken to court. You can't just go around saying "This guy is a pedo rapist and everyone should run because he did this and that".  If he had never been convicted, you are destroying his reputation, and that's against the law.  Now, if it's true, and he had been convicted, no problem.  You are just stating facts. Otherwise, you are in some legal trouble.
 
2014-05-04 09:27:59 AM  

skinink: even though the only reason he was never bought to court is due to the Statute of Limitation? Finding it hard to sympathise with someone who escaped a trial on a technicality.



So says Ashley.  If she really had a good case, she why didn't she bring it earlier?
And it's not like she's some unsophisticated rube, either.  She's got a Facebook page, she's lobbied the Legislature, she's gotten media attention.  She can do all that, but she can't get it together to have charges filed within five years?

What's happening to alleged molester is really unfair.  What if he's innocent and Ashley's just some batshiat crazy biatch. How's alleged molester supposed to defend himself?  I guess he could ask her specifics of when and where and then disprove them by showing phone records or social calendars that he wasn't there?  Oh, no, he can't.  More than five years have passed, and nobody remembers now when alleged molester arrived at the event, or if he even showed at all, and the phone company deleted those records four years ago.

When something happened that long ago, it always devolves into a "did too," "did not" situation, and the defendant is in a bad position, because he can't get the proof he'd need to clear his name.
 
2014-05-04 09:29:30 AM  
He hasn't been convicted.  It doesn't matter what evidence she has, she's presently publicly labeling an innocent person as a sexual predator.  Given the stigma that comes with being even accused of a sex crime, this cannot be allowed.  I'm sorry she waited too long to alert authorities but...she waited too long to alert authorities.

(How long is the statue of limitations for sex crimes in Florida, anyway?)
 
2014-05-04 09:33:23 AM  

The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.


pbs.twimg.comblog.angelatung.com
 
2014-05-04 09:33:25 AM  

EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.


Yeah, such a lawsuit is in effect arguing that she can't even prove it to civil standards.

Sometimes these cases reported way late are true, sometimes they aren't.  I wouldn't take it as a given that she was molested in the first place.

Moopy Mac: Fortunately in the USA, truth is a defense in defamation cases. So if he did it, he has zero case (on the defamation charge at least). She just needs to prove that he molested her. The standard of proof in this case would be a preponderance of evidence, which should be pretty simple with the testimony of an investigator from the BPD or two.


Exactly.  If she's telling the truth she'll easily win the case.

The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.


No, the burden will be on her to prove it--but only to a preponderance of the evidence standard.

TuteTibiImperes: Statutes of limitations aren't exactly technicalities. They exist because after a certain amount of time has passed evidence and even witness accounts become unreliable.


Exactly.  The one change I would support is in cases where an attempt is made to keep a minor quiet that the statue is tolled until age 18.
 
2014-05-04 09:33:49 AM  

arcas: He hasn't been convicted.  It doesn't matter what evidence she has, she's presently publicly labeling an innocent person as a sexual predator.  Given the stigma that comes with being even accused of a sex crime, this cannot be allowed.  I'm sorry she waited too long to alert authorities but...she waited too long to alert authorities.

(How long is the statue of limitations for sex crimes in Florida, anyway?)


This!
 
2014-05-04 09:34:42 AM  
Mr. Cash would like a word.....
i1280.photobucket.com
 
2014-05-04 09:34:45 AM  

TuteTibiImperes: skinink: So this guy J.R. Johnson is suing to have his name taken off of places like Ashley Foster's Facebook page because of the negative effects of being associated with molestation, even though the only reason he was never bought to court is due to the Statute of Limitation? Finding it hard to sympathise with someone who escaped a trial on a technicality.

[fbcdn-sphotos-c-a.akamaihd.net image 727x960]

Statutes of limitations aren't exactly technicalities.  They exist because after a certain amount of time has passed evidence and even witness accounts become unreliable.


You assume that even fresh witness testimony is reliable. (It isn't.)
 
2014-05-04 09:36:58 AM  

HighlanderRPI: 60 days past the statute of limitations when she finally went to police? Ouch...



"Statute" is such an odd word.
lowres.jantoo.com
 
2014-05-04 09:37:06 AM  
Is the alleged molester willing to waive the statute of limitations and have the original rape charge heard in court?  If not STFU.
 
2014-05-04 09:37:48 AM  
As someone who survived molestation by a family member, all I can say is that it takes a huge amount of courage and will to actually talk about this happening. I still have difficulty discussing my experience when my identy isn't hidden by a keyboard.

Of course, I'm operating on the assumption that this accusation is true.
 
2014-05-04 09:38:17 AM  

Loren: Exactly. If she's telling the truth she'll easily win the case.


This is a little naive don't you think?
 
2014-05-04 09:39:27 AM  

mamoru: corn-bread: So she went before the state legislature and used his name and picture to convince them to pass a longer statute of limitations.

Dude still has to prove he was damaged, but yea, I 'd say he has a case.

If there is a taped confession, as per Skinink's linked picture, then wouldn't the "it's not defamation if it's the truth" defense work out pretty well for the defendant?



Assuming the tape can be properly authenticated *and* it says what she says it says.......maybe.  "Truth" is an affirmative defense that she will need to raise at trial.

I guess on one level she should be thanking him.  By filing suit he has given her an opportunity she otherwise wouldn't have.
 
2014-05-04 09:39:37 AM  
Chester approves....
 
2014-05-04 09:44:05 AM  
Ye Gods, what a mess.

SOMEBODY has been horribly wronged, and SOMEBODY is an evil lying scumbag.

Is there any evidence other than the apparent taped confession?

Under what conditions was that confession extracted? With enough time and "persuasion" I bet the police could get anybody to confess to any crime.

The lawsuit probably isn't going to get very far-- the burdon of proof lies heavily with the one bringing the case, and as somebody said up thread, you can't prove a negative.
 
2014-05-04 09:44:52 AM  

Mid_mo_mad_man: arcas: He hasn't been convicted.  It doesn't matter what evidence she has, she's presently publicly labeling an innocent person as a sexual predator.  Given the stigma that comes with being even accused of a sex crime, this cannot be allowed.  I'm sorry she waited too long to alert authorities but...she waited too long to alert authorities.

(How long is the statue of limitations for sex crimes in Florida, anyway?)

This!

truth

is defense against defamation, not conviction . It doesn't matter if he is ever actually convicted if she can prove he did it.

If he raped her it would mean he never has to go to jail but she can call him Mr. Rapey Rapist McAsswipe all she wants.
 
2014-05-04 09:48:06 AM  
they look pretty similar in age to me...I think there is likely more to the story.
 
2014-05-04 09:52:27 AM  

Bertuccio: Mid_mo_mad_man: arcas: He hasn't been convicted.  It doesn't matter what evidence she has, she's presently publicly labeling an innocent person as a sexual predator.  Given the stigma that comes with being even accused of a sex crime, this cannot be allowed.  I'm sorry she waited too long to alert authorities but...she waited too long to alert authorities.

(How long is the statue of limitations for sex crimes in Florida, anyway?)

This!

truth is defense against defamation, not conviction . It doesn't matter if he is ever actually convicted if she can prove he did it.

If he raped her it would mean he never has to go to jail but she can call him Mr. Rapey Rapist McAsswipe all she wants.


No, She can't. It's on her to prove he did it. That's her only defense in this case.
 
2014-05-04 09:56:11 AM  
Countersue his ass for the cash. If the prosecutors had enough to go on but ran out of time, that evidence is just as good to nail him in this proceeding.
 
2014-05-04 10:02:08 AM  

edmo: Countersue his ass for the cash. If the prosecutors had enough to go on but ran out of time, that evidence is just as good to nail him in this proceeding.


If you buy her story. We don't know they had enough. We are only hearing her side of it. I doubt there's any physical proof. At best it's she said/he said at this point. I doubt there's a strong case.
 
2014-05-04 10:07:43 AM  
But hey, there's no such thing as rape culture
 
2014-05-04 10:10:00 AM  

Mid_mo_mad_man: Bertuccio: Mid_mo_mad_man: arcas: He hasn't been convicted.  It doesn't matter what evidence she has, she's presently publicly labeling an innocent person as a sexual predator.  Given the stigma that comes with being even accused of a sex crime, this cannot be allowed.  I'm sorry she waited too long to alert authorities but...she waited too long to alert authorities.

(How long is the statue of limitations for sex crimes in Florida, anyway?)

This!

truth is defense against defamation, not conviction . It doesn't matter if he is ever actually convicted if she can prove he did it.

If he raped her it would mean he never has to go to jail but she can call him Mr. Rapey Rapist McAsswipe all she wants.

No, She can't. It's on her to prove he did it. That's her only defense in this case.


You aren't disagreeing with him. He doesn't have to be convicted for her to legally call him a child molester. You are both saying the same thing.
 
2014-05-04 10:11:37 AM  

arcas: He hasn't been convicted.  It doesn't matter what evidence she has, she's presently publicly labeling an innocent person as a sexual predator.  Given the stigma that comes with being even accused of a sex crime, this cannot be allowed.  I'm sorry she waited too long to alert authorities but...she waited too long to alert authorities.

(How long is the statue of limitations for sex crimes in Florida, anyway?)


OJ Simpson has a lot of money coming to him from all those defamation cases he will win.
 
2014-05-04 10:14:01 AM  
What is done in the dark will always come to light.

The problem here is, does it qualify as slander, since no formal charges were ever brought?

Frankly, until the lady brings her evidence to court, we will never know.

(FTR, I expect a sealed settlement)
 
2014-05-04 10:18:40 AM  

Mid_mo_mad_man: arcas: He hasn't been convicted.  It doesn't matter what evidence she has, she's presently publicly labeling an innocent person as a sexual predator.  Given the stigma that comes with being even accused of a sex crime, this cannot be allowed.  I'm sorry she waited too long to alert authorities but...she waited too long to alert authorities.

(How long is the statue of limitations for sex crimes in Florida, anyway?)

This!


Well, this is 100% legally incorrect.
 
2014-05-04 10:19:48 AM  
CruJones:

So she says. It's likely she's right, but it's not certain. The ruling will have to apply to all people in this situation, whether the cops think they had a strong case or not, and I know Fark thinks the police are wrong 99% of the time.

/I think that's how it works


I'm not sure it's as high at 99% but it is pretty high.  You have to account for the stories that are presented here.  There are fewer cases like here where the cops are trying to help a dumdum who waited until after the statute of limitations had expired before seeking help;  and more cases like the cop who ran a stop sign, broadsided a woman's car which broke her neck in 4 places and then he arrested her for drunk driving because she couldn't perform a field sobriety test with a broken neck.  Or the cop who put a repo man in a choke hold b/c his car was getting repossessed.  Or the cops who pulled over the wrong guy and then arrested him anyway while joking about planting drugs in his car.

Those are just what is on the main page right now.  1 story about cops attempting to do the right thing depending on what your idea of the right thing is and 3 stories about cops going out of their way to be total and complete assholes, depending on what your idea of being a total and complete asshole is.
 
2014-05-04 10:26:25 AM  
Reminds me of the O.J. Simpson and Robert Blake cases. Both got acquitted of the crime, but civilly liable for huge judgements. Either they were innocents robbed by the system, or murderers who got away with nothing but a fine. No justice either way.
 
2014-05-04 10:29:41 AM  

Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.


In no event will he have to "pay up" - he isn't being sued. And she does not have to convince a judge or jury that he is guilty by the standard of the criminal courts - she need only show that a preponderance of the evidence shows that she is telling the truth the burden of proof falls equally on both parties to a civil suit - and it is he who is alleging that she is lying.
A criminal conviction is not even peripherally necessary to a finding in civil law.
 
2014-05-04 10:34:09 AM  

The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.


Agreed.

Give me your real name, address, and a few photographs.  I want to put up a few webpages detailing how you molested babies 20 years ago.
 
2014-05-04 10:49:08 AM  

jso2897: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In no event will he have to "pay up" - he isn't being sued. And she does not have to convince a judge or jury that he is guilty by the standard of the criminal courts - she need only show that a preponderance of the evidence shows that she is telling the truth the burden of proof falls equally on both parties to a civil suit - and it is he who is alleging that she is lying.
A criminal conviction is not even peripherally necessary to a finding in civil law.


As can be seen in this thread, unfortunately the basics of the American justice system are a mystery to a large percentage of people. Hell, we've had threads where dozens of people couldn't understand why civil and criminal cases on the same subject matter aren't an example of double jeopardy. Or who has the burden of proof in certain situations. Or that the legal standard is different in civil and criminal cases. Civics fails us.
 
2014-05-04 10:50:08 AM  

Moopy Mac: jso2897: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In no event will he have to "pay up" - he isn't being sued. And she does not have to convince a judge or jury that he is guilty by the standard of the criminal courts - she need only show that a preponderance of the evidence shows that she is telling the truth the burden of proof falls equally on both parties to a civil suit - and it is he who is alleging that she is lying.
A criminal conviction is not even peripherally necessary to a finding in civil law.

As can be seen in this thread, unfortunately the basics of the American justice system are a mystery to a large percentage of people. Hell, we've had threads where dozens of people couldn't understand why civil and criminal cases on the same subject matter aren't an example of double jeopardy. Or who has the burden of proof in certain situations. Or that the legal standard is different in civil and criminal cases. Civics fails us.


*isn't.
 
2014-05-04 10:53:35 AM  
This could work in the woman's favor. From her account, the accusation was never tested in a criminal court because the statute of limitations had expired - not because her story was unbelievable. Now she gets a chance to face her cousin in a civil court where the burden of proof is not so heavy. This could blow up in his face since she now only has to prove that her story is true on a balance of probabilities rather than beyond a reasonable doubt. If the cops believed her story, then she probably has enough to defend herself in court.

As for everyone whining about the lack of criminal charges/conviction, I think that's relatively meaningless in a case like this. Every charge is preceded by an accusation. Someone has to go to the cops and say "John Doe raped me." The accusation will be repeated and published and tested in a court of law. That's not slanderous unless the accuser is lying. If I get raped by someone and tell my friends, go to the police, etc. the rapist would have a very difficult time of it trying to prove slander, even if the prosecutors don't proceed with a criminal trial. Failure to proceed to trial doesn't mean a rape didn't happen. It only means the prosecutors don't think they have enough evidence to secure a conviction.
 
2014-05-04 10:54:30 AM  

Moopy Mac: jso2897: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In no event will he have to "pay up" - he isn't being sued. And she does not have to convince a judge or jury that he is guilty by the standard of the criminal courts - she need only show that a preponderance of the evidence shows that she is telling the truth the burden of proof falls equally on both parties to a civil suit - and it is he who is alleging that she is lying.
A criminal conviction is not even peripherally necessary to a finding in civil law.

As can be seen in this thread, unfortunately the basics of the American justice system are a mystery to a large percentage of people. Hell, we've had threads where dozens of people couldn't understand why civil and criminal cases on the same subject matter aren't an example of double jeopardy. Or who has the burden of proof in certain situations. Or that the legal standard is different in civil and criminal cases. Civics fails us.


Take my advice - drop a couple of comments, and then let it go. attempting to educate or inform the Fark GEDs is an exercise in futility that will drive you out of your mind long before it accomplishes anything.
 
2014-05-04 10:58:43 AM  
Sigh.

Since there is no conviction the 'raper' just needs to prove damages from the woman's statements in court.

The 'rapee' can defend herself by arguing that she was just telling the truth, but she will have to prove to the jury that what she SAID did in fact happen. Easy to do with a conviction - perhaps not so easy when there is no evidence and it amounts to he said/she said.
 
2014-05-04 11:00:05 AM  

Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.


In a civil case, the burden is on the plaintiff. To prove it was not defamation, the woman has to prove the rape; but since he can't be criminally prosecuted, he only has to prove he was never charged or tried.

She's pretty much legally in the wrong here.
 
2014-05-04 11:05:27 AM  

Gyrfalcon: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In a civil case, the burden is on the plaintiff. To prove it was not defamation, the woman has to prove the rape; but since he can't be criminally prosecuted, he only has to prove he was never charged or tried.

She's pretty much legally in the wrong here.


She just has to prove her statements are true. He has to prove that he was damaged. Neither is probably going to bring actual evidence or 3rd party witnesses to the trial. It will be a stupid he said / she said duel and the goal will be to gain sympathy from the judge/jury - not prove a case.
 
2014-05-04 11:17:37 AM  

Gunboat: skinink: even though the only reason he was never bought to court is due to the Statute of Limitation? Finding it hard to sympathise with someone who escaped a trial on a technicality.


So says Ashley.  If she really had a good case, she why didn't she bring it earlier?
And it's not like she's some unsophisticated rube, either.  She's got a Facebook page, she's lobbied the Legislature, she's gotten media attention.  She can do all that, but she can't get it together to have charges filed within five years?

What's happening to alleged molester is really unfair.  What if he's innocent and Ashley's just some batshiat crazy biatch. How's alleged molester supposed to defend himself?  I guess he could ask her specifics of when and where and then disprove them by showing phone records or social calendars that he wasn't there?  Oh, no, he can't.  More than five years have passed, and nobody remembers now when alleged molester arrived at the event, or if he even showed at all, and the phone company deleted those records four years ago.

When something happened that long ago, it always devolves into a "did too," "did not" situation, and the defendant is in a bad position, because he can't get the proof he'd need to clear his name.


If she was 13 when it happened I can think of a variety of reasons a traumatized child might not have come forward sooner. Can't you?
 
2014-05-04 11:29:34 AM  

Gyrfalcon: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In a civil case, the burden is on the plaintiff. To prove it was not defamation, the woman has to prove the rape; but since he can't be criminally prosecuted, he only has to prove he was never charged or tried.

She's pretty much legally in the wrong here.


jso2897 is a much better man/woman than me, but holy shiat this comment is wrong.
 
2014-05-04 11:53:06 AM  

Gyrfalcon: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In a civil case, the burden is on the plaintiff.



No. In a civil case, the burden of producing a preponderance of evidence to support your case falls equally on both litigants. The one who succeeds in convincing the court that the evidence supports his case more than the other's, wins.
There is no "burden of proof" in civil law.

There now, Moopy - feel better about yourself.
 
2014-05-04 12:00:50 PM  
This cousin suing the rape victim better have a strong case, because discovery process will hang him otherwise

Many rape cases that are not prosecuted end up resulting in a judgment in favor of rape victims because the defendant cannot use criminal rules of evidence to hide their past. In a civil trial a rapists past sexual history can be used as evidence....note that Kobe Bryant immediately settled his rape lawsuit against vs the Colorado woman when the Federal court allowed his sexual history to be used against him in the civil trial.

I bet rapist cousin has his case tossed after discovery phase
 
2014-05-04 12:01:37 PM  
"His name has to be put in it so that people to know that it's real," she said.

Um...No, his name doesn't have to be part of your presentation.  Saying "my cousin molested me" is just as real as saying "my cousin Fred Jones molested me".  Using his name doesn't make it more real.
 
2014-05-04 12:04:22 PM  
If he hasn't been convicted of anything, then I wish him the best of luck in suing her farking ass off.
 
2014-05-04 12:07:35 PM  

jso2897: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In no event will he have to "pay up" - he isn't being sued. And she does not have to convince a judge or jury that he is guilty by the standard of the criminal courts - she need only show that a preponderance of the evidence shows that she is telling the truth the burden of proof falls equally on both parties to a civil suit - and it is he who is alleging that she is lying.
A criminal conviction is not even peripherally necessary to a finding in civil law.


I didn't say the rapist would have to pay up. I said TBWCUMI would have to pay up in my hypothetical situation of accusing him of stealing. According to his own logic he would have to prove he did not steal. It does not make sense that this man would have to prove he didn't rape her. She has to prove he did. And if she can she can continue to call him a rapist.
You don't disagree with me.

/I think
 
2014-05-04 12:12:28 PM  

Bertuccio: jso2897: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In no event will he have to "pay up" - he isn't being sued. And she does not have to convince a judge or jury that he is guilty by the standard of the criminal courts - she need only show that a preponderance of the evidence shows that she is telling the truth the burden of proof falls equally on both parties to a civil suit - and it is he who is alleging that she is lying.
A criminal conviction is not even peripherally necessary to a finding in civil law.

I didn't say the rapist would have to pay up. I said TBWCUMI would have to pay up in my hypothetical situation of accusing him of stealing. According to his own logic he would have to prove he did not steal. It does not make sense that this man would have to prove he didn't rape her. She has to prove he did. And if she can she can continue to call him a rapist.
You don't disagree with me.

/I think


No. Neither of them has to "prove" anything. All either of them has to do is convince a judge or jury that it is more likely that they are telling the truth than that the other party is. The burden of preponderance falls equally upon both parties. This is not a criminal court.
 
2014-05-04 12:22:38 PM  
This could backfire spectacularly. All the evidence she couldn't use in criminal court, will now become public record in civil court.
 
2014-05-04 12:23:45 PM  

CruJones: BeerBear: rebelyell2006: EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.

Yup. Sounds like she needs to learn how to use the word "allegedly".

Not really:

Foster had a strong case against her cousin with help from investigators at the Boynton Beach Police Department. But they could never prosecuted because the statute of limitations had run out.

So she says. It's likely she's right, but it's not certain. The ruling will have to apply to all people in this situation, whether the cops think they had a strong case or not, and I know Fark thinks the police are wrong 99% of the time.

/I think that's how it works


I'm going to go out on a limb and say that the case law in their jurisdiction is well established on whether or not accusations of sex crims can be considered defamatory. The only issue this ruling will need to resolve is whether or not she can prove her allegations to the jury's satisfaction.

I can tell you that statutes of limitations on sexual assaults involving minors in this country tend to be long. Her story about how the statute of limitations precluded prosecution of her "strong case" doesn't seem very likely to me (though I can't categorically say it's false).

There's a risky aspect of this case for the plaintiff though. When a plaintiff loses a defamation case, people generally take the defamatory statements as true. If he loses, he'll be considered a proven child molester for the rest of his life.

And if theirs is a jurisdiction where to prevail in a defamation suit, defendants have to prove their allegations true, she'll have already proven the case she needs to sue his socks off for his acts of molestation.

In fact, if I were her attorney, I'd go ahead and file that suit. Get it all resolved in one trial.
 
2014-05-04 12:30:53 PM  
Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?
 
2014-05-04 12:33:00 PM  

jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?


I notice you haven't commented on your innocence, either.  Shall we speculate on your guilt, as well?
 
2014-05-04 12:41:02 PM  

jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?

www.morethings.com
Recruiter: Have you ever been convicted of a felony or a misdemeanor? That's robbery, rape, car theft, that sort of thing.
John Winger: Convicted? No.
Russell Ziskey: Never convicted.
 
2014-05-04 12:54:09 PM  
"You the guy who **cked over our friend Ashley?"

i.kinja-img.com
 
2014-05-04 12:58:23 PM  

jso2897: Bertuccio: jso2897: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In no event will he have to "pay up" - he isn't being sued. And she does not have to convince a judge or jury that he is guilty by the standard of the criminal courts - she need only show that a preponderance of the evidence shows that she is telling the truth the burden of proof falls equally on both parties to a civil suit - and it is he who is alleging that she is lying.
A criminal conviction is not even peripherally necessary to a finding in civil law.

I didn't say the rapist would have to pay up. I said TBWCUMI would have to pay up in my hypothetical situation of accusing him of stealing. According to his own logic he would have to prove he did not steal. It does not make sense that this man would have to prove he didn't rape her. She has to prove he did. And if she can she can continue to call him a rapist.
You don't disagree with me.

/I think

No. Neither of them has to "prove" anything. All either of them has to do is convince a judge or jury that it is more likely that they are telling the truth than that the other party is. The burden of preponderance falls equally upon both parties. This is not a criminal court.


So again, IANAL. I get that the burden is on both and I am not using 'prove' in any legal sense -- because IANAL.
I'm not the one saying this is criminal court, that she would be held to that standard of evidence, or that this would result in his conviction -- I'm not sure that anyone here has.

All I said was that TBWCUMI's notion that the accused would have to disprove the accuser is bizarre and gave an example where that's obvious.  I'll give you that the example I gave would probably be one for criminal court (IANAL) but the basic logic I think applies to most anything.

Since you apparently you are a lawyer here are some possibly more interesting questions.
Some comments have said that he only needs to prove he wasn't tried or convicted to prove his case. Is that true? It doesn't make sense to me; he can still be a rapist regardless of whether he was convicted or not.

Suing for defamation usually requires demonstrating that the plaintiff has been damaged. In some states claiming someone has committed a crime is always considered damaging - is that true in Florida?
 
2014-05-04 12:58:53 PM  
I guess he stopped because she got

img.fark.net

forum.cheatengine.org
 
2014-05-04 01:07:20 PM  

Bertuccio: jso2897: Bertuccio: jso2897: Bertuccio: The Beatings Will Continue Until Morale Improves: It's not defamation if it's true. The burden of proof will be on the rapist to prove what the victim said is false. Not being arrested/convicted for it doesn't count as proof.

I would expect the burden would be for the victim to prove she was raped. Otherwise I could say you stole from me and if you couldn't prove otherwise you'd have to pay up.

In no event will he have to "pay up" - he isn't being sued. And she does not have to convince a judge or jury that he is guilty by the standard of the criminal courts - she need only show that a preponderance of the evidence shows that she is telling the truth the burden of proof falls equally on both parties to a civil suit - and it is he who is alleging that she is lying.
A criminal conviction is not even peripherally necessary to a finding in civil law.

I didn't say the rapist would have to pay up. I said TBWCUMI would have to pay up in my hypothetical situation of accusing him of stealing. According to his own logic he would have to prove he did not steal. It does not make sense that this man would have to prove he didn't rape her. She has to prove he did. And if she can she can continue to call him a rapist.
You don't disagree with me.

/I think

No. Neither of them has to "prove" anything. All either of them has to do is convince a judge or jury that it is more likely that they are telling the truth than that the other party is. The burden of preponderance falls equally upon both parties. This is not a criminal court.

So again, IANAL. I get that the burden is on both and I am not using 'prove' in any legal sense -- because IANAL.
I'm not the one saying this is criminal court, that she would be held to that standard of evidence, or that this would result in his conviction -- I'm not sure that anyone here has.

All I said was that TBWCUMI's notion that the accused would have to disprove the accuser is bizarre and gave an example ...


I am not a lawyer. I just paid attention in Civics class. I don't think that there is any state that requires a criminal convictions to either bring a suit for a wrongful action or defend oneself from a libel suit. Would kind of defeat the purpose of civil law.
As to the second question - I honestly don't know. As a practical matter, it's unlikely to be difficult to convince a jury or judge that somebody actually did something they were criminally convicted of - but i don't know if it would be automatic.
I kind of doubt it.
 
2014-05-04 01:08:16 PM  

Infernalist: jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?

I notice you haven't commented on your innocence, either.  Shall we speculate on your guilt, as well?


Are you a Scientologist?
 
2014-05-04 01:09:25 PM  

jso2897: Infernalist: jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?

I notice you haven't commented on your innocence, either.  Shall we speculate on your guilt, as well?

Are you a Scientologist?


Are you hitting on me?
 
2014-05-04 01:14:57 PM  

Infernalist: jso2897: Infernalist: jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?

I notice you haven't commented on your innocence, either.  Shall we speculate on your guilt, as well?

Are you a Scientologist?

Are you hitting on me?


/keyboard
//owe
///knock it off, you two.
 
2014-05-04 01:26:10 PM  

Gunboat: skinink: even though the only reason he was never bought to court is due to the Statute of Limitation? Finding it hard to sympathise with someone who escaped a trial on a technicality.


So says Ashley.  If she really had a good case, she why didn't she bring it earlier?



Oh hell no.  There are so many variables that make rape a unique crime, that it is just ridiculous to ask that question.  Since it's a family member, she might of been under all sorts of pressure to "keep it in the family."  She might have consented  to sex act A but objected to sex act B and not understood for years that yes to one thing does not mean yes to everything else.

There's also the usual shame, avoidance, denial, etc.  Really I don't understand the concept of a statue of limitations at all.  Either you can prove your case or you can't.  Giving a potential felon a freebie because it was too long ago does not compute with me.
 
2014-05-04 01:37:17 PM  

edmo: Countersue his ass for the cash. If the prosecutors had enough to go on but ran out of time, that evidence is just as good to nail him in this proceeding.


It's unlikely that if the statute has run for criminal charges that it has not also run for a civil suit.  Appropriate law seems to be § 95.11 (7), Fla. Stat. (2013) - it's either 7 years or 4 years.  TFA doesn't have dates of the alleged abuse or the specific nature of the alleged abuse, so it's impossible to determine if it's actually run from what we've got in TFA.

Her alleged defamatory conduct is ongoing, therefore he can bring a suit.  His alleged conduct has, presumably, stopped as the criminal statute has run, if the civil statute has run as well, she's time barred from a suit.

If that's the case, she can still present a defense of truth to the defamation allegations.
 
2014-05-04 01:44:55 PM  

DarkVader: edmo: Countersue his ass for the cash. If the prosecutors had enough to go on but ran out of time, that evidence is just as good to nail him in this proceeding.

It's unlikely that if the statute has run for criminal charges that it has not also run for a civil suit.  Appropriate law seems to be § 95.11 (7), Fla. Stat. (2013) - it's either 7 years or 4 years.  TFA doesn't have dates of the alleged abuse or the specific nature of the alleged abuse, so it's impossible to determine if it's actually run from what we've got in TFA.

Her alleged defamatory conduct is ongoing, therefore he can bring a suit.  His alleged conduct has, presumably, stopped as the criminal statute has run, if the civil statute has run as well, she's time barred from a suit.

If that's the case, she can still present a defense of truth to the defamation allegations.


Ok, looks like she likely can bring a suit.  I found an article where she is apparently 22, limit is 7 years from age of majority.
 
2014-05-04 01:58:55 PM  

EvilEgg: He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.


TRUE
And the AWESOME NEWS is that during this trial she will be able to put on an affirmative defense.
Strangely ENOUGH the truth is pretty much her only defense.

So buy suing her, she is now allowed to testify in open court about what he did to her.
THANKS ASSHOLE for opening the door and letting her let her story in court.

The jury will be left to determine the facts of the case.
If they believe her, he will lose in court.
Not as good as his going to prison for abuse, but it's a start.
 
2014-05-04 02:07:01 PM  

inglixthemad: EvilEgg:

He was never convicted of anything. He might have done it, he might not have. Since just the accusation will destroy his life there needs to be some protection.

Yes. Don't get me wrong, if he did it: a$$hole.

The problem being he was never convicted so being tagged like this isn't right either.


This.


/On the other hand it looks like I never will get due credit for being on that grassy knoll.
 
2014-05-04 02:12:59 PM  

jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?


that he is innocent and didnt do it?!
HAH

at least he will get to testify in court, right?
OH WAIT, his lawyer will not let him take the stand!
Otherwise he will have to answer questions from the defense!!

Did you abuse her on this day? or this day? or this day?
were you ever alone with her? and did this? or this? or this?

so many opportunities
want to bet that he drops the case before trial?
 
2014-05-04 02:16:36 PM  

Loren: I wouldn't take it as a given that she was molested in the first place.


But don't you know you have to BELIEVE THE VICTIM? Or it's like you're raping her yourself! And don't forget about The Courage To Heal: I'll bet she has even worse cellular memories that hypnosis can bring out.


/ Yes I'm being facetious.
 
2014-05-04 02:23:22 PM  

DarkVader: edmo: Countersue his ass for the cash. If the prosecutors had enough to go on but ran out of time, that evidence is just as good to nail him in this proceeding.

It's unlikely that if the statute has run for criminal charges that it has not also run for a civil suit.  Appropriate law seems to be § 95.11 (7), Fla. Stat. (2013) - it's either 7 years or 4 years.  TFA doesn't have dates of the alleged abuse or the specific nature of the alleged abuse, so it's impossible to determine if it's actually run from what we've got in TFA.

Her alleged defamatory conduct is ongoing, therefore he can bring a suit.  His alleged conduct has, presumably, stopped as the criminal statute has run, if the civil statute has run as well, she's time barred from a suit.

If that's the case, she can still present a defense of truth to the defamation allegations.


yes no sort of ....
example:
criminal charges run out on friday
she starts accusing him today ...
her act of defamation statute of limitations counter starts when she commits the act of defamation, not when he committed the act of abuse.
 
2014-05-04 02:27:09 PM  
"Ashley Foster had a strong case against her cousin with help from investigators at the Boynton Beach Police Department. But they could never prosecute because the statute of limitations had run out. "

If this went to trial, which it probably wont, those investigators would be able to testify about the case.
They would be able to present all the testimony and evidence that they discovered.
That evidence and their investigation doesnt evaporate because the criminal statute ran out.

The truth is allowed as a defense in defamation case.
LOL
 
2014-05-04 02:27:29 PM  
Burden of proof is different from standard of proof.  Standard of proof is, for example, preponderance versus beyond reasonable doubt.  Burden is who needs to show what to survive a motion to dismiss or prevail on the merits.

How the burden works depends on the claims. Although defamation is a common law claim in every state, some have statutory overlay relating to defamation, and how the burden works may vary by state.  Also, multiple claims may be based on the same alleged facts.  Here you would expect to see a claim for invasion of privacy by placing the cousin in a false light, in addition to libel.

In defamation, the burden typically is initially on the plaintiff to plead and then prove each element of the claim (such as that def made a defamatory statement, possibly with malice if required, of and concerning the plaintiff that caused damages).  If the plaintiff meets the initial burden and the def raises an affirmative defense, such as that the statements were true, then the burden shift to the def to prove the truth of the statements.
 
2014-05-04 02:29:13 PM  

HighlanderRPI: 60 days past the statute of limitations when she finally went to police? Ouch...


they really need to extend the limits on abuse ... 
And dont get me started on rape. 
WHY is there a statute of limitation on rape? FFS

csb
Some counties are making charges against the DNA, stopping the clock from running out.
Once they discover the owner of the DNA, the case can move forward.
/csb
 
2014-05-04 02:30:38 PM  

gerbilpox: Reminds me of the O.J. Simpson and Robert Blake cases. Both got acquitted of the crime, but civilly liable for huge judgements. Either they were innocents robbed by the system, or murderers who got away with nothing but a fine. No justice either way.


This argument always bothers me. It is quite reasonable to have two different outcomes with the same evidence in civil and criminal proceedings. As a society we have determined that freedom is more valuable than money and should be commensurately more difficult to take from an individual. As such we have set the bar much higher for criminal proceedings than for civil ones.

"I think it's more likely that the accused is guilty than innocent but I'm not certain" wins a lawsuit but loses a prosecution. It's not a difficult concept.
 
2014-05-04 02:31:27 PM  

4tehsnowflakes: Burden of proof is different from standard of proof.  Standard of proof is, for example, preponderance versus beyond reasonable doubt.  Burden is who needs to show what to survive a motion to dismiss or prevail on the merits.

How the burden works depends on the claims. Although defamation is a common law claim in every state, some have statutory overlay relating to defamation, and how the burden works may vary by state.  Also, multiple claims may be based on the same alleged facts.  Here you would expect to see a claim for invasion of privacy by placing the cousin in a false light, in addition to libel.

In defamation, the burden typically is initially on the plaintiff to plead and then prove each element of the claim (such as that def made a defamatory statement, possibly with malice if required, of and concerning the plaintiff that caused damages).  If the plaintiff meets the initial burden and the def raises an affirmative defense, such as that the statements were true, then the burden shift to the def to prove the truth of the statements.


^^
 
2014-05-04 02:31:45 PM  

notatrollorami: "I think it's more likely that the accused is guilty than innocent but I'm not certain" wins a lawsuit but loses a prosecution. It's not a difficult concept.


It's not difficult, it's just not logical.
 
2014-05-04 02:33:33 PM  

notatrollorami: gerbilpox: Reminds me of the O.J. Simpson and Robert Blake cases. Both got acquitted of the crime, but civilly liable for huge judgements. Either they were innocents robbed by the system, or murderers who got away with nothing but a fine. No justice either way.

This argument always bothers me. It is quite reasonable to have two different outcomes with the same evidence in civil and criminal proceedings. As a society we have determined that freedom is more valuable than money and should be commensurately more difficult to take from an individual. As such we have set the bar much higher for criminal proceedings than for civil ones.

"I think it's more likely that the accused is guilty than innocent but I'm not certain" wins a lawsuit but loses a prosecution. It's not a difficult concept.


OJ was perfect example of this.
EVERYONE ON THE PLANET KNOWS THAT OJ IS A MURDERER.
But they couldnt prove it in a criminal court because of show boating and the judge being a moron letting the cameras in the court room.

But civil claims against OJ? MEH
I have no problem with the family suing for damages and be required to meet lesser standards.
 
2014-05-04 02:34:52 PM  
The number of people in this thread who are saying, on one hand, that he wasn't convicted and the burden of proof is on the accuser and therefore he's innocent and having his name smeared in the mud wrongly, and then on the other hand are cheering on his civil suit and demanding that the burden of proof is on the accused to prove that she was raped, is absurd.

Since that number is greater than zero, and the above logic is ridiculously dumb.
 
2014-05-04 03:19:48 PM  
Two comments:

1.  The police either were not asked for comment, or declined to comment.  So 'strong case' is Ashley's assessment.

2.  The article says the cousin is seeking an injunction.  Nowhere does the article say he is suing for defamation.
 
2014-05-04 03:36:56 PM  

namatad: jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?

that he is innocent and didnt do it?!
HAH

at least he will get to testify in court, right?
OH WAIT, his lawyer will not let him take the stand!
Otherwise he will have to answer questions from the defense!!

Did you abuse her on this day? or this day? or this day?
were you ever alone with her? and did this? or this? or this?

so many opportunities
want to bet that he drops the case before trial?


Actually in civil court there is no option for a party to refuse to testify. She can subpoena him and he is required to take the stand.
 
2014-05-04 05:06:24 PM  

4tehsnowflakes: Burden of proof is different from standard of proof.  Standard of proof is, for example, preponderance versus beyond reasonable doubt.  Burden is who needs to show what to survive a motion to dismiss or prevail on the merits.

How the burden works depends on the claims. Although defamation is a common law claim in every state, some have statutory overlay relating to defamation, and how the burden works may vary by state.  Also, multiple claims may be based on the same alleged facts.  Here you would expect to see a claim for invasion of privacy by placing the cousin in a false light, in addition to libel.

In defamation, the burden typically is initially on the plaintiff to plead and then prove each element of the claim (such as that def made a defamatory statement, possibly with malice if required, of and concerning the plaintiff that caused damages).  If the plaintiff meets the initial burden and the def raises an affirmative defense, such as that the statements were true, then the burden shift to the def to prove the truth of the statements.


Is an accusation of rape always damaging?
And is the fact that he wasn't convicted any defense for him?
 
2014-05-04 05:07:54 PM  

BizarreMan: namatad: jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?

that he is innocent and didnt do it?!
HAH

at least he will get to testify in court, right?
OH WAIT, his lawyer will not let him take the stand!
Otherwise he will have to answer questions from the defense!!

Did you abuse her on this day? or this day? or this day?
were you ever alone with her? and did this? or this? or this?

so many opportunities
want to bet that he drops the case before trial?

Actually in civil court there is no option for a party to refuse to testify. She can subpoena him and he is required to take the stand.


the more you know ... and since he can no longer be charged with her abuse, he can not plead the 5th.
nice
 
2014-05-04 05:24:52 PM  

namatad: BizarreMan: namatad: jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?

that he is innocent and didnt do it?!
HAH

at least he will get to testify in court, right?
OH WAIT, his lawyer will not let him take the stand!
Otherwise he will have to answer questions from the defense!!

Did you abuse her on this day? or this day? or this day?
were you ever alone with her? and did this? or this? or this?

so many opportunities
want to bet that he drops the case before trial?

Actually in civil court there is no option for a party to refuse to testify. She can subpoena him and he is required to take the stand.

the more you know ... and since he can no longer be charged with her abuse, he can not plead the 5th.
nice


Yep.

The more I think about it, for him to make his case, he has to take the stand.  He is the only one who can testify to the damage her statements have made.
 
2014-05-04 05:33:47 PM  

BizarreMan: Actually in civil court there is no option for a party to refuse to testify. She can subpoena him and he is required to take the stand.the more you know ... and since he can no longer be charged with her abuse, he can not plead the 5th.niceYep.The more I think about it, for him to make his case, he has to take the stand. He is the only one who can testify to the damage her statements have made.


Clearly he did not think his cunning plan all the way through, and his lawyer sucks for not discouraging him from doing this.
 
2014-05-04 06:18:40 PM  

corn-bread: I guess on one level she should be thanking him.  By filing suit he has given her an opportunity she otherwise wouldn't have.


Not really.  If she wants a day in court, she can always file civil suit against him for damages, no?
 
2014-05-04 06:20:44 PM  

namegoeshere: Clearly he did not think his cunning plan all the way through, and his lawyer sucks for not discouraging him from doing this.


Either that, or he's not afraid of testifying.
 
2014-05-04 06:28:57 PM  
Let him sue her.  Let her go to court and finally present her evidence.  He may not be convicted criminally, but he might end up looking like a huge ass and proving himself to be a rapist.
 
2014-05-04 06:29:03 PM  
I dunno, why would she lie about something like that besides "biatches be crazy"?
 
2014-05-04 06:35:15 PM  
Oh, good grief.

As some of the folks above have pointed out, defamation is an old common-law cause of action in each of the 50 states.  Accusing someone of committing a criminal offense (like, say, child molesting) is considered to be defamation per se, which means that the plaintiff is presumed to be damaged as a matter of law.

As plaintiff, the cousin needs to show that he was accused of a criminal offense.  That's his burden of proof in this case.  I'm pretty sure the website Ashley put up will do a bang-up job of carrying this burden.

One a plaintiff has established his burden of proof, the defendant has the ability to raise affirmative defenses, such as truth in a defamation case, but THEY have the burden to prove that the allegations are, in fact, true, and not just defamatory.  So, if Ashley wants to argue that her cousin molested her, yes, she is absolutely going to have to prove that in court.  It's her burden.

Now, it's true that both parties only have a burden of preponderance of the evidence, but they both have burdens: he has to prove that she defamed him (easy), she has to prove that he molested her (not easy at all).  For everyone crowing that the cousin "hasn't thought his cunning plan all the way thru", the law is VERY much in his favor, and I suspect that he's going to come out of this far better than she is.

/Lawyer
 
2014-05-04 06:54:55 PM  

jackrazz: Oh, good grief.

...  For everyone crowing that the cousin "hasn't thought his cunning plan all the way thru", the law is VERY much in his favor, and I suspect that he's going to come out of this far better than she is.


She has already come out ahead in the sense that she has established herself in a community of supporters for victims of childhood sexual abuse.  Being sued for being brave enough to speak up should cause the community to rally to her defense, whatever the true facts may be.  That could include a legal defense fund.  He on the other hand, if in fact he has a defense other than expiry of the statute, faces a long slog probably with no community support.  He may fold up after he gets the first couple of invoices from his professional services provider, because who would take this for him on contingency?  To say nothing of the Streisand effect.  So the big picture for him may not be so rosy.

Bertuccio: 4tehsnowflakes:

Is an accusation of rape always damaging?


Yes?

And is the fact that he wasn't convicted any defense for him?

No, as someone said up-thread the cops/DA did not clear him, they just declined to charge him, maybe because it was too late.
 
2014-05-04 07:05:06 PM  

jackrazz: Oh, good grief.

As some of the folks above have pointed out, defamation is an old common-law cause of action in each of the 50 states.  Accusing someone of committing a criminal offense (like, say, child molesting) is considered to be defamation per se, which means that the plaintiff is presumed to be damaged as a matter of law.


Does that standard change if the person being slandered is a public figure?  We had a thread a few weeks ago, and I got dogpiled when I suggested you can't just accuse someone of running a Ponzi scheme, even if he's a public figure; it could open the door to a defamation claim.  (high-profile CEO, iirc)

/lawyer
//not my field
 
2014-05-04 07:22:50 PM  

namatad: HighlanderRPI: 60 days past the statute of limitations when she finally went to police? Ouch...

they really need to extend the limits on abuse ... 
And dont get me started on rape. 
WHY is there a statute of limitation on rape? FFS

csb
Some counties are making charges against the DNA, stopping the clock from running out.
Once they discover the owner of the DNA, the case can move forward.
/csb


Because defendants are presumed innocent and having to recall witnesses from twenty years ago is generally an unreasonable burden to make them meet. Absolutely, criminals can escape justice by waiting out the statue. But innocent people would be significantly more likely to be falsely convicted if they had to use their own resources to prepare a defense against the infinite resources of the state when evidence has disappeared and witnesses died.
 
2014-05-04 07:31:56 PM  

Mugato: notatrollorami: "I think it's more likely that the accused is guilty than innocent but I'm not certain" wins a lawsuit but loses a prosecution. It's not a difficult concept.

It's not difficult, it's just not logical.


You think that plaintiffs in civil lawsuits should have to prove their cases beyond a reasonable doubt? Ugh.
 
2014-05-04 07:35:19 PM  

jackrazz: Oh, good grief.

As some of the folks above have pointed out, defamation is an old common-law cause of action in each of the 50 states.  Accusing someone of committing a criminal offense (like, say, child molesting) is considered to be defamation per se, which means that the plaintiff is presumed to be damaged as a matter of law.

As plaintiff, the cousin needs to show that he was accused of a criminal offense.  That's his burden of proof in this case.  I'm pretty sure the website Ashley put up will do a bang-up job of carrying this burden.

One a plaintiff has established his burden of proof, the defendant has the ability to raise affirmative defenses, such as truth in a defamation case, but THEY have the burden to prove that the allegations are, in fact, true, and not just defamatory.  So, if Ashley wants to argue that her cousin molested her, yes, she is absolutely going to have to prove that in court.  It's her burden.

Now, it's true that both parties only have a burden of preponderance of the evidence, but they both have burdens: he has to prove that she defamed him (easy), she has to prove that he molested her (not easy at all).  For everyone crowing that the cousin "hasn't thought his cunning plan all the way thru", the law is VERY much in his favor, and I suspect that he's going to come out of this far better than she is.

/Lawyer


Tighten this up a little bit or risk losing a few points on the final exam.
 
2014-05-04 07:37:57 PM  

The Only Jeff: namatad: HighlanderRPI: 60 days past the statute of limitations when she finally went to police? Ouch...

they really need to extend the limits on abuse ... 
And dont get me started on rape. 
WHY is there a statute of limitation on rape? FFS

csb
Some counties are making charges against the DNA, stopping the clock from running out.
Once they discover the owner of the DNA, the case can move forward.
/csb

Because defendants are presumed innocent and having to recall witnesses from twenty years ago is generally an unreasonable burden to make them meet. Absolutely, criminals can escape justice by waiting out the statue. But innocent people would be significantly more likely to be falsely convicted if they had to use their own resources to prepare a defense against the infinite resources of the state when evidence has disappeared and witnesses died.


yes .... but in the case of stranger rape, when a rape kit was done at the time, a case opened, and the case goes COLD .... well, I have no problems with the case being kept open and charging the DNA ...

I certainly understand the need for limitations on non-capital cases.
It is long past time to move rape into the capital case column.
 
2014-05-04 07:45:40 PM  

namatad: The Only Jeff: namatad: HighlanderRPI: 60 days past the statute of limitations when she finally went to police? Ouch...

they really need to extend the limits on abuse ... 
And dont get me started on rape. 
WHY is there a statute of limitation on rape? FFS

csb
Some counties are making charges against the DNA, stopping the clock from running out.
Once they discover the owner of the DNA, the case can move forward.
/csb

Because defendants are presumed innocent and having to recall witnesses from twenty years ago is generally an unreasonable burden to make them meet. Absolutely, criminals can escape justice by waiting out the statue. But innocent people would be significantly more likely to be falsely convicted if they had to use their own resources to prepare a defense against the infinite resources of the state when evidence has disappeared and witnesses died.

yes .... but in the case of stranger rape, when a rape kit was done at the time, a case opened, and the case goes COLD .... well, I have no problems with the case being kept open and charging the DNA ...

I certainly understand the need for limitations on non-capital cases.
It is long past time to move rape into the capital case column.


Who did the rape kit? Can you subpoena the lab tech? The police? The investigators? Can you review the methods used? You have multiple Sixth Amendment issues when your evidence goes stale.

Why should rape be a capital offense? Why should you face death when you are not yourself a killer? Why should the punishment exceed the crime?
 
2014-05-04 07:48:43 PM  

jackrazz: Oh, good grief.

As some of the folks above have pointed out, defamation is an old common-law cause of action in each of the 50 states.  Accusing someone of committing a criminal offense (like, say, child molesting) is considered to be defamation per se, which means that the plaintiff is presumed to be damaged as a matter of law.

As plaintiff, the cousin needs to show that he was accused of a criminal offense.  That's his burden of proof in this case.  I'm pretty sure the website Ashley put up will do a bang-up job of carrying this burden.

One a plaintiff has established his burden of proof, the defendant has the ability to raise affirmative defenses, such as truth in a defamation case, but THEY have the burden to prove that the allegations are, in fact, true, and not just defamatory.  So, if Ashley wants to argue that her cousin molested her, yes, she is absolutely going to have to prove that in court.  It's her burden.

Now, it's true that both parties only have a burden of preponderance of the evidence, but they both have burdens: he has to prove that she defamed him (easy), she has to prove that he molested her (not easy at all).  For everyone crowing that the cousin "hasn't thought his cunning plan all the way thru", the law is VERY much in his favor, and I suspect that he's going to come out of this far better than she is.

/Lawyer

Isnt he kind of screwed, if he actually abused her?
Wont he have to take the stand to assert the damages? And wont he be opened up to questioning about the alleged abuse?

Sure, he can lie. But the defense could ask about case after case after case, effectively smearing him just by asking the questions? 
did you touch her on this date? were you with her on this date? did you talk to her about sex? etc etc
At some point the streisand effect alone has had to make things worse for him in at least some sense.

Worst part is that assuming that he is completely innocent, there is almost no way to clear your name, short of her recanting.
This is why claims of false rape make me so completely nutty.
 
2014-05-04 07:52:39 PM  

The Only Jeff: Who did the rape kit? Can you subpoena the lab tech? The police? The investigators? Can you review the methods used? You have multiple Sixth Amendment issues when your evidence goes stale.


truth, which is an issue for the state to maintain the evidence and sworn testimony, etc

Why should rape be a capital offense? Why should you face death when you are not yourself a killer? Why should the punishment exceed the crime?

meh - I am willing to forgo death, but life without parole is a fitting sentence for rape rape.
FFS - in the current system, drug dealers and users (possession distribution weight ) get longer prison sentences than rapists. sigh
 
2014-05-04 07:57:22 PM  

Gunboat


So says Ashley.  If she really had a good case, she why didn't she bring it earlier?
And it's not like she's some unsophisticated rube, either.  She's got a Facebook page, she's lobbied the Legislature, she's gotten media attention.  She can do all that, but she can't get it together to have charges filed within five years?


Since the article says "molested" instead of "raped" or "sexually assaulted"I'm presuming that the alleged abuse took place when she was a kid.

Thunderpipes: I smell Duke.


Why does this come up in literally every thread about rape? Why do people always insist that the alleged victim is lying despite statistical evidence to the contrary about false rape accusations?

If I ever meet Crystal Gail Magnum I'm going to punch her for making the lives of real rape survivors even more difficult.
 
2014-05-04 07:57:26 PM  

The Only Jeff: Why should the punishment exceed the crime?


this question is both funny and disingenuous.
the 3 classic consensual crimes harm no one and therefore should have zero punish and in fact should be legal given that question.
 
2014-05-04 08:01:01 PM  

namatad: truth, which is an issue for the state to maintain the evidence and sworn testimony, etc


You can't maintain evidence that isn't gathered. If the state says 20 years ago this lab tech (who is now dead) ran a rape kit (that has since been discarded) that resulted in a match to you, what do you do? The risk of false conviction is too high. The obvious violation of the Sixth Amendment is impermissible. 

meh - I am willing to forgo death, but life without parole is a fitting sentence for rape rape.
FFS - in the current system, drug dealers and users (possession distribution weight ) get longer prison sentences than rapists. sigh


As I understand it, you can get life without parole for rape rape in numerous jurisdictions, including federally.

As far as the disparity between drug dealer sentences and rapist sentences, that sounds like a greater problem with drug law than with rape law.
 
2014-05-04 08:01:55 PM  

namatad: The Only Jeff: Why should the punishment exceed the crime?

this question is both funny and disingenuous.
the 3 classic consensual crimes harm no one and therefore should have zero punish and in fact should be legal given that question.


To what crimes are you referring/when did I refer to those crimes?
 
2014-05-04 08:06:03 PM  

The Only Jeff: namatad: truth, which is an issue for the state to maintain the evidence and sworn testimony, etc

You can't maintain evidence that isn't gathered. If the state says 20 years ago this lab tech (who is now dead) ran a rape kit (that has since been discarded) that resulted in a match to you, what do you do? The risk of false conviction is too high. The obvious violation of the Sixth Amendment is impermissible.


Of course.  If you dont have the evidence any more it is pretty much impossible to present a case. But some states have no limits or very long ones:  http://www.rainn.org/pdf-files-and-other-documents/Public-Policy/Lega l -resources/2012/Statute%20of%20Limitations%20Summary.pdf
So we can assume that state makes every effort to keep the needed evidence required to present a case if and when the accused is ever caught. No different than a murder case.


meh - I am willing to forgo death, but life without parole is a fitting sentence for rape rape.
FFS - in the current system, drug dealers and users (possession distribution weight ) get longer prison sentences than rapists. sigh

As I understand it, you can get life without parole for rape rape in numerous jurisdictions, including federally.

As far as the disparity between drug dealer sentences and rapist sentences, that sounds like a greater problem with drug law than with rape law.


In both directions. The drug sentences are embarrassingly high and the rape sentences are embarrassing low. Which makes it two separate issues. but still.

/I am also confused. You are some kind of adult and havent called me an idiot yet. Is this some alternative fark.com I have fallen into? :D
 
2014-05-04 08:08:57 PM  

The Only Jeff: namatad: The Only Jeff: Why should the punishment exceed the crime?

this question is both funny and disingenuous.
the 3 classic consensual crimes harm no one and therefore should have zero punish and in fact should be legal given that question.

To what crimes are you referring/when did I refer to those crimes?


prostitution, drug use, gambling.
victimless crimes
 
2014-05-04 08:12:26 PM  
Truth is an absolute defense against defamation.  I don't believe someone has to be convicted in order to prove in that court that it happened.  If she has the recording of him admitting to the abuse she says she has, she'll probably win.
 
2014-05-04 08:17:39 PM  

namatad: Of course.  If you dont have the evidence any more it is pretty much impossible to present a case. But some states have no limits or very long ones:  http://www.rainn.org/pdf-files-and-other-documents/Public-Policy/Lega l -resources/2012/Statute%20of%20Limitations%20Summary.pdf
So we can assume that state makes every effort to keep the needed evidence required to present a case if and when the accused is ever caught. No different than a murder case.


You misunderstand me, my apologies. Absolutely, the state will maintain ITS evidence. But it will not maintain evidence the defense needs to show reasonable doubt. The state will say that so-and-so did such and such on this date and therefore the defendant is guilty. It will not cross examine so-and-so like the defense needs to in order to provide an effective defense. The defense cannot try to discredit an expert who cannot appear in court because he or she is dead. The defense cannot question the validity of the testing methods when everyone connected with them has forgotten about them or died. So at trial, all the judge and jury will see is that the last word on the matter was guilt.

The flexibility from state-to-state on statutes of limitations is understandable. Not every crime is equal and not every mistake is fatal. But I personally feel that with extremely rare exception, statutes of limitations prevent more harm than they cause.

In both directions. The drug sentences are embarrassingly high and the rape sentences are embarrassing low. Which makes it two separate issues. but still.

But a large part of that is that a person is more likely to be convicted multiple times for drug infractions than for rape. The rapist either learns his lesson or gets better about hiding it.

/I am also confused. You are some kind of adult and havent called me an idiot yet. Is this some alternative fark.com I have fallen into? :D

I haven't put your name in red, so you haven't said something totally ridiculous yet :P

prostitution, drug use, gambling.
victimless crimes


Although it's strawmanny, I'll tackle it. I think prostitution should be largely legal, perhaps regulated so you don't have street walkers or brothels across from a day care, but men and women should largely be allowed to boink whoever they want for whatever reason they want.

Drug use is tricky. The guy who tokes or shoots up and vegges out on his couch all day isn't really a problem. The guy who does those things then gets in his car and kills someone is. I think that overall, drugs should be more in line with alcohol laws. But some drugs like LSD and PCP are much more difficult to use safely. Maybe bring back the opium dens of yore?

Gambling I think should be relaxed as well. You shouldn't let someone gamble who obviously has a problem, just like you can't serve alcohol to someone obviously drunk. But overall I agree with you that your victimless crimes are more harshly punished than justice requires.
 
2014-05-04 08:48:26 PM  

The Only Jeff: Although it's strawmanny, I'll tackle it. I think prostitution should be largely legal, perhaps regulated so you don't have street walkers or brothels across from a day care, but men and women should largely be allowed to boink whoever they want for whatever reason they want.


I think you're underestimating how difficult prostitution will be.  We've got a thriving sex slave trade in the U.S., and well regulated brothels won't get rid of guys who want to pay a fraction as much at a "massage" parlor with fewer rules and condoms.  That would have to be planned for.
 
2014-05-04 08:53:36 PM  

4tehsnowflakes: jackrazz: Oh, good grief.

...  For everyone crowing that the cousin "hasn't thought his cunning plan all the way thru", the law is VERY much in his favor, and I suspect that he's going to come out of this far better than she is.

She has already come out ahead in the sense that she has established herself in a community of supporters for victims of childhood sexual abuse.  Being sued for being brave enough to speak up should cause the community to rally to her defense, whatever the true facts may be.  That could include a legal defense fund.  He on the other hand, if in fact he has a defense other than expiry of the statute, faces a long slog probably with no community support.  He may fold up after he gets the first couple of invoices from his professional services provider, because who would take this for him on contingency?  To say nothing of the Streisand effect.  So the big picture for him may not be so rosy.

Bertuccio: 4tehsnowflakes:

Is an accusation of rape always damaging?

Yes?

And is the fact that he wasn't convicted any defense for him?

No, as someone said up-thread the cops/DA did not clear him, they just declined to charge him, maybe because it was too late.


Thanks you and jackrazz for the clarifications.

And on whether she wins in the meta-game, FTFA her goal in lieu of prosecuting him was to change the statute of limitations, which she did. So winning this would just be icing.
 
2014-05-04 08:54:37 PM  

msqualia: I think you're underestimating how difficult prostitution will be.  We've got a thriving sex slave trade in the U.S., and well regulated brothels won't get rid of guys who want to pay a fraction as much at a "massage" parlor with fewer rules and condoms.  That would have to be planned for.


Why should condoms be mandatory? If a person can consent to condomless sex for free, why shouldn't they be able to consent for condomless sex when they're being paid for it?

And categorically, sex slave trade is bad and not something we should do.
 
2014-05-04 11:06:26 PM  

PunGent: jackrazz: Oh, good grief.

As some of the folks above have pointed out, defamation is an old common-law cause of action in each of the 50 states.  Accusing someone of committing a criminal offense (like, say, child molesting) is considered to be defamation per se, which means that the plaintiff is presumed to be damaged as a matter of law.

Does that standard change if the person being slandered is a public figure?  We had a thread a few weeks ago, and I got dogpiled when I suggested you can't just accuse someone of running a Ponzi scheme, even if he's a public figure; it could open the door to a defamation claim.  (high-profile CEO, iirc)

/lawyer
//not my field


I can't remember the exact case, but there is a US Supreme Court case directly on point that discusses slander and libel against public figures.  Effectively, the slander has to be made with reckless disregard for the truth.  So, yes, if the New York Times ran an article (possibly even an editorial) outright calling a public figure a criminal, the NY Times would be facing a nice little defamation suit.

Papers like the National Enquirer and the Weekly World News get a pass, IIRC, because they're very careful to use innuendo rather than outright accusation.  This hasn't kept them from getting sued in the past, however.
 
2014-05-04 11:15:14 PM  

4tehsnowflakes: jackrazz: Oh, good grief.

...  For everyone crowing that the cousin "hasn't thought his cunning plan all the way thru", the law is VERY much in his favor, and I suspect that he's going to come out of this far better than she is.

She has already come out ahead in the sense that she has established herself in a community of supporters for victims of childhood sexual abuse.  Being sued for being brave enough to speak up should cause the community to rally to her defense, whatever the true facts may be.  That could include a legal defense fund.  He on the other hand, if in fact he has a defense other than expiry of the statute, faces a long slog probably with no community support.  He may fold up after he gets the first couple of invoices from his professional services provider, because who would take this for him on contingency?  To say nothing of the Streisand effect.  So the big picture for him may not be so rosy.


I will concede that the knee-jerk reaction of victim's rights groups will be to support Ashley, no matter what the real truth is.  To that end, sure, she "wins".

This is what ticks me off about these rape cases.  In no other body of law will you find a group of people who will unquestioningly and automatically accept an accuser's word with nothing else to go on, because NOBODY would ever make something like this up.  Except all the cases where people DO make it up.  Like my client's step-daughter, who got him thrown out of the house by telling CPS that he touched her in the naughty place.  No other evidence, just her word.  He own mother caught her on tape a month later bragging that she'd call CPS again and accuse Mom of helping Dad touch her inappropriately if Mom went thru with a threat to ground her.  We've turned that tape over to the prosecutor, and his response is to insist on the trial going forward.  Justice in action, people.

But just be careful if you ever critically ask about someone's motivations in making an accusation like this, lest you get tarred as a supporter of so-called "rape culture".
 
2014-05-05 01:38:24 AM  
From another article about her, it says prior to the law being changed, the statute of limitations for molesting a child older than 12 was 3 years from the abuse.  The abuse allegedly started at 13, when her cousin was 23, until she was 19.  She went to police when she was 21.
 
Skr
2014-05-05 03:59:36 AM  

bpsoup: From another article about her, it says prior to the law being changed, the statute of limitations for molesting a child older than 12 was 3 years from the abuse.  The abuse allegedly started at 13, when her cousin was 23, until she was 19.  She went to police when she was 21.


3 years seems way too short of time considering the head games that kids can go through while being abused.
 
2014-05-05 04:15:36 AM  

jso2897: Just as an aside:
"My picture appeared on Facebook as 'a predator', which I have never been arrested, prosecuted, or convicted of," Foster's cousin writes In Broward County court documents."

Anybody notice anything conspicuously absent from his statement?


The presumption of innocence?

Guys. All this talk of burdens gives me a headache. As a plaintiff, in order to make it to trial, you have to make a prima facie case to survive summary judgment

Summary judgment is what lawyers move for by saying "Even if you accept everything in the plaintiffs complaint as true he will undoubtedly lose at trial because he's failed to allege some element of the claim"

So yes. There are burdens in a civil case on the plaintiff to prove each element of his claim to a preponderance (51% likely)
 
2014-05-05 09:04:09 AM  

jackrazz: PunGent: jackrazz: Oh, good grief.

As some of the folks above have pointed out, defamation is an old common-law cause of action in each of the 50 states.  Accusing someone of committing a criminal offense (like, say, child molesting) is considered to be defamation per se, which means that the plaintiff is presumed to be damaged as a matter of law.

Does that standard change if the person being slandered is a public figure?  We had a thread a few weeks ago, and I got dogpiled when I suggested you can't just accuse someone of running a Ponzi scheme, even if he's a public figure; it could open the door to a defamation claim.  (high-profile CEO, iirc)

/lawyer
//not my field

I can't remember the exact case, but there is a US Supreme Court case directly on point that discusses slander and libel against public figures.  Effectively, the slander has to be made with reckless disregard for the truth.  So, yes, if the New York Times ran an article (possibly even an editorial) outright calling a public figure a criminal, the NY Times would be facing a nice little defamation suit.

Papers like the National Enquirer and the Weekly World News get a pass, IIRC, because they're very careful to use innuendo rather than outright accusation.  This hasn't kept them from getting sued in the past, however.


Yeah, that was my take on it.  Other FarkAttorneys seemed to disagree, however...quite vehemently :)
 
2014-05-05 11:19:18 AM  

Babwa Wawa: corn-bread: I guess on one level she should be thanking him.  By filing suit he has given her an opportunity she otherwise wouldn't have.

Not really.  If she wants a day in court, she can always file civil suit against him for damages, no?


I don't know what the statute of limitations is in Florida, but typically it's far shorter for civil cases than criminal ones.  While the SOL for the felony may be 25 years or more, it wouldn't at all surprise me if the civil SOL was only four or five years.
 
2014-05-05 12:02:10 PM  
Bullshiat...I hope he sues the fark out of her and wins...
SO DAMN TIRED of all these farkin wimps claiming whatever happened to them DECADES ago...
But NOW...NOW...after decades have passed...
NOW they want their "justice", their time in the sun...
Again...bullshiat...
I have nothing but disdain for rapists and child molesters...
But I also have nothing but disdain for victims that keep quiet, continue being victims, then a hundred years later...they wanna bring it to light.
NO!
Accuse the attacker, press charges, and get your justice at the time of the incident.
Right now, this story is nothing but "he said/she said"...there's no evidence, there's no witnesses, there's nothing but her stupid voice ruining this man's life because SHE SAID IT HAPPENED! Nothing more.
I hope she pays him a lot of money and keeps his name out of her mouth/off the internet.
Ridiculous!
Imagine this happening to you...innocent as the day is long...
All of a sudden, you find out there's a Facebook page dedicated to ruining your reputation.
fark THAT!!!
 
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