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(Daily Kos)   Jealous of the other side getting all the derp, Daily Kos argues "beyond a reasonable doubt" is the wrong legal standards for rape cases and instead the rapist should be guilty until proven innocent   (dailykos.com) divider line 537
    More: Dumbass, burden of proof, Health Care, International, speedy trial, Susan Caringella, innocent until proven guilty, selective prosecution, reasonable doubt, insanity defense  
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2342 clicks; posted to Politics » on 01 Jun 2014 at 7:07 AM (51 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



537 Comments   (+0 »)
   
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2014-05-31 11:56:30 PM  
Italy welcomes them.
 
2014-06-01 12:11:12 AM  
My hand raped my penis. The penis was drunk but damn that hand just wanted it....stupid rape hand.
 
2014-06-01 01:22:34 AM  
Some guy on some blog says something and it spawns a conversation with intelligent rebuttals and this is an indication of....something. Is that what you're trying to say subby?

Mission accomplished.  Good job.
 
2014-06-01 03:04:12 AM  
Derpy Kos blogs are stupid because whenever they say something that crosses the line we're reminded it's just a blog, but otherwise they're damn near gospel, or something.

Those damn republicans anyway, they did this.
 
2014-06-01 04:46:02 AM  
Poorly written thought piece leads to mildly competent discussion. Oh the horror.
 
2014-06-01 07:08:44 AM  

violentsalvation: Derpy Kos blogs are stupid because whenever they say something that crosses the line we're reminded it's just a blog, but otherwise they're damn near gospel, or something.

Those damn republicans anyway, they did this.


Nope.
 
2014-06-01 07:09:16 AM  

violentsalvation: Derpy Kos blogs are stupid because whenever they say something that crosses the line we're reminded it's just a blog, but otherwise they're damn near gospel, or something.

Those damn republicans anyway, they did this.


Nah, Republicans don't want anyone prosecuted for rape. They don't think there's any such thing.
 
2014-06-01 07:12:59 AM  
Surely a woman would never lie about being raped.
 
2014-06-01 07:13:18 AM  

violentsalvation: Those damn republicans anyway, they did this.


No no no, if the GOP did this, there would have been incredible amounts of spending, recession and lots of dead soldiers.
 
2014-06-01 07:15:35 AM  
Let's see if anyone reads the article.

Yeah, it sounds like there is a problem, and it should be addressed, but the article doesn't say how, just suggests that we should start discussing it.  Alright.

I doubt it'll happen in a reasonable manner.
 
2014-06-01 07:18:09 AM  
 
2014-06-01 07:19:40 AM  

Tyrone Slothrop: Surely a woman would never lie about being raped.


How many men lie about being raped?
 
2014-06-01 07:19:51 AM  
But don't you dare accuse the author of being a shrill, screeching, "all men are rapists", man-hating harpy.  That would just be wrong and indefensible, like being male.
 
2014-06-01 07:23:28 AM  

Laobaojun: But don't you dare accuse the author of being a shrill, screeching, "all men are rapists", man-hating harpy.  That would just be wrong and indefensible, like being male.


Oh get off your cross.
 
2014-06-01 07:23:45 AM  

Laobaojun: But don't you dare accuse the author of being a shrill, screeching, "all men are rapists", man-hating harpy.  That would just be wrong and indefensible, like being male.


Go ahead, sweetie, call them feminazis, we know you want to.

/Another Republican who's forever alone.
 
2014-06-01 07:25:13 AM  

violentsalvation:  but otherwise they're damn near gospel


no.

what usually happens is someone says something along the lines of "Kos is just some stupid liberal blog. I don't believe what it says."

then everyone else points out that the link provided citations and links to other more mainstream articles to back it's claims.

then the guy who complained vanishes.
 
2014-06-01 07:26:31 AM  
Daily Kos is language rape.
 
2014-06-01 07:26:41 AM  
To correct the headline, the problem is that for rape, and only rape, you're expected to prove that you didn't give consent.  That doesn't happen for theft, burglary, murder.

'He stole 50 bucks from me!'

'Can you prove that you didn't consent to it?'
 
2014-06-01 07:27:36 AM  

Tyrone Slothrop: Surely a woman would never lie about being raped.


TAKE BACK THE NIGHT! BELIEVE THE CHILDREN!!!!
 
2014-06-01 07:30:19 AM  

Alphax: To correct the headline, the problem is that for rape, and only rape, you're expected to prove that you didn't give consent.  That doesn't happen for theft, burglary, murder.

'He stole 50 bucks from me!'

'Can you prove that you didn't consent to it?'


Trolls don't consent to education. You're raping them with logic and facts.
 
2014-06-01 07:34:51 AM  
aaaand....I can't take the article seriously.


Let's first address the problem, with the stats.  One quarter of women will be raped at least once in their lifetime.  Approximately 10% of men admit to having committed rape in studies when the word "rape" isn't used, but situations that are rape are described and the subjects are asked if they've done them.  Yet only the tiniest fraction of them will ever end up in jail.  We have a situation where, say, the vast majority of murderers end up in jail, but only a miniscule fraction of rapists.  This is clearly a massive problem - people can rape pretty much with impunity.  What's wrong here?

unfounded claims, assumptions, and hyperbole. then it really goes down hill...

The problem: the default legal assumption in rape cases is that consent was given.  It's up to the prosecution to prove beyond a reasonable doubt that it wasn't.  This is very different from the standard legal assumptions for other crimes.  It's not assumed that a murder victim consented to be murdered.  It's not assumed that a robbery victim consented to give their wallet over to a stranger.  It's not assumed that a identity theft victim consented to have someone else take their identity.  In such a case, yes, the prosecution has to prove "beyond a reasonable doubt" that the accused killed the victim, or took the victim's wallet, or took the victim's identity, etc.  But if that's proven, it's not up to the prosecution to prove that the victim didn't want it.

no.. the default legal assumption is that rape did not occur. not that there was consensual sex. a person can be falsely accused of rape without having ever had sex with the alleged victim.

I can't be bothered to read the rest.
 
2014-06-01 07:42:37 AM  

Wake Up Sheeple: Tyrone Slothrop: Surely a woman would never lie about being raped.

How many men lie brag about being raped?


Many
 
2014-06-01 07:44:00 AM  

log_jammin: aaaand....I can't take the article seriously.


Let's first address the problem, with the stats.  One quarter of women will be raped at least once in their lifetime.  Approximately 10% of men admit to having committed rape in studies when the word "rape" isn't used, but situations that are rape are described and the subjects are asked if they've done them.  Yet only the tiniest fraction of them will ever end up in jail.  We have a situation where, say, the vast majority of murderers end up in jail, but only a miniscule fraction of rapists.  This is clearly a massive problem - people can rape pretty much with impunity.  What's wrong here?

unfounded claims, assumptions, and hyperbole. then it really goes down hill...

The problem: the default legal assumption in rape cases is that consent was given.  It's up to the prosecution to prove beyond a reasonable doubt that it wasn't.  This is very different from the standard legal assumptions for other crimes.  It's not assumed that a murder victim consented to be murdered.  It's not assumed that a robbery victim consented to give their wallet over to a stranger.  It's not assumed that a identity theft victim consented to have someone else take their identity.  In such a case, yes, the prosecution has to prove "beyond a reasonable doubt" that the accused killed the victim, or took the victim's wallet, or took the victim's identity, etc.  But if that's proven, it's not up to the prosecution to prove that the victim didn't want it.

no.. the default legal assumption is that rape did not occur. not that there was consensual sex. a person can be falsely accused of rape without having ever had sex with the alleged victim.

I can't be bothered to read the rest.


Actually, it is. Continue reading.

It is a great legal system flaw that in most jurisdictions - not all, but most - the same standard for evaluating consent is not applied in rape cases.
The shifting of the twin burdens of production and proof is indeed widespread in defense arguments.  In "Addressing Rape Reform in Law and Practice", Susan Caringella, Professor of Criminal Justice at WMU and founding chairperson of the Division on Critical Criminology of the American Society of Criminology, writes:

It is noteworthy that this is not an unusual feature in criminal case processing. Berliner reports precident for shifting the burden of proof in rape statue in her comments about Washington's rape law.  Here the burden is placed on the defense if/when attempts are made to argue consent (1991:2693 n. 43)
 
2014-06-01 07:47:04 AM  
'Beyond a reasonable doubt' is just the theoretical standard.

The actual standard, as practiced by law enforcement and judges, is that the rape victim is guilty until proven innocent.
 
2014-06-01 07:53:43 AM  

Alphax: To correct the headline, the problem is that for rape, and only rape, you're expected to prove that you didn't give consent.  That doesn't happen for theft, burglary, murder.

'He stole 50 bucks from me!'

'Can you prove that you didn't consent to it?'


Screw it, I'm just going to jump in.  The problem with your reasoning is that each of those crimes has additional elements that indicate lack of consent, or that a reasonable person wouldn't consent to.  Use of a weapon to take money/property, breaking into someone's home, or killing someone all pretty much indicate lack of consent, and there's objective evidence of all these things.  In rape cases, if you can prove that some form of coercion, compulsion, or means to remove consent was used, that's evidence of non-consent.

That's why prosecuting rape is so hard, objective evidence corroborating an accusation is hard to come by.  Without actual evidence of that, people have consensual sex all the time, and a reasonable person might well have consented to having sex.  What the article seems to advocate is removing the objective evidence standard, making it so that a statement that there was coercion would be considered actual evidence of that coercion, without more being needed.  Let's remove rape from the discussion for the moment, and imagine just about any other crime.  Would it be acceptable to say "let's lower the burden of proof, because getting a conviction is just too darn hard right now" for, say, burglary?
 
2014-06-01 07:54:04 AM  

Wake Up Sheeple: Tyrone Slothrop: Surely a woman would never lie about being raped.

How many men lie about being raped?


Dear Penthouse Forum...
 
2014-06-01 07:54:36 AM  

IamKaiserSoze!!!: Wake Up Sheeple: Tyrone Slothrop: Surely a woman would never lie about being raped.

How many men lie brag about being raped?

Many


That makes no sense. But you still get a #notallmen highlight until I see otherwise.
 
2014-06-01 08:02:30 AM  

Last Man on Earth: Alphax: To correct the headline, the problem is that for rape, and only rape, you're expected to prove that you didn't give consent.  That doesn't happen for theft, burglary, murder.

'He stole 50 bucks from me!'

'Can you prove that you didn't consent to it?'

Screw it, I'm just going to jump in.  The problem with your reasoning is that each of those crimes has additional elements that indicate lack of consent, or that a reasonable person wouldn't consent to.  Use of a weapon to take money/property, breaking into someone's home, or killing someone all pretty much indicate lack of consent, and there's objective evidence of all these things.  In rape cases, if you can prove that some form of coercion, compulsion, or means to remove consent was used, that's evidence of non-consent.


Threat of physical violence? A fist isn't enough?

That's why prosecuting rape is so hard, objective evidence corroborating an accusation is hard to come by.  Without actual evidence of that, people have consensual sex all the time, and a reasonable person might well have consented to having sex.  What the article seems to advocate is removing the objective evidence standard, making it so that a statement that there was coercion would be considered actual evidence of that coercion, without more being needed.  Let's remove rape from the discussion for the moment, and imagine just about any other crime.  Would it be acceptable to say "let's lower the burden of proof, because getting a conviction is just too darn hard right now" for, say, burglary?

You have a more thought-out comment than others, but it still boils down to lying. Think about it this way, why would someone lie about rape? Why would a *man* lie about rape?
 
2014-06-01 08:02:33 AM  

ghare: violentsalvation: Derpy Kos blogs are stupid because whenever they say something that crosses the line we're reminded it's just a blog, but otherwise they're damn near gospel, or something.

Those damn republicans anyway, they did this.

Nah, Republicans don't want anyone prosecuted for rape. They don't think there's any such thing.


Of course they believe there's such a thing as rape, and it's committed by a black man against a white woman, and the punishment should be death.
 
2014-06-01 08:03:46 AM  
I feel terrible for all the poor men who now have to wait till some broad is sober to nail her, or other people will make them feel bad. How are they supposed to trick a girl into sex if they can't get her drunk?? Poor, poor men.
 
2014-06-01 08:04:02 AM  
Daily Kos article that may or may not be derpy is definitely equivalent to elected officials (you know, the ones responsible for legislation in this country) in the GOP making inane comments about rape. You see, both sides are bad.
 
2014-06-01 08:04:18 AM  

Kurmudgeon: violentsalvation: Those damn republicans anyway, they did this.

No no no, if the GOP did this, there would have been incredible amounts of spending, recession and lots of dead soldiers.


If the Republicans waged a war on rape, you'd end up with a bunch of guys who looked vaguely like rapists being held without trial in "executive detention", and a bunch of rape victims and their families dead and or homeless from all the bombing.
 
2014-06-01 08:05:31 AM  
"But it's not fair you see. I didn't rape that slut, she just regretted having sex with me."
 
2014-06-01 08:05:49 AM  
But for consent, the act would be a constitutionally protected one.  So I'm going to have to say that the "lack of consent" element of the crime is the most important one, and as with all other elements of said crime, the prosecution should have to prove it beyond a reasonable doubt.  This author is going about it as if arguing consent were an affirmative defense, which it is not.  Even if it were, the prosecution retains the burden of disproving the affirmative defense in many other crimes..like self-defense in a murder case.
 
2014-06-01 08:06:23 AM  
Isn't this the standard at colleges like Dartmouth now? If you are accused you are guilty.
 
2014-06-01 08:08:14 AM  

Alphax: To correct the headline, the problem is that for rape, and only rape, you're expected to prove that you didn't give consent.  That doesn't happen for theft, burglary, murder.

'He stole 50 bucks from me!'

'Can you prove that you didn't consent to it?'


Never known that happen for Rape either but maybe that is  uniquely American problem.
 
2014-06-01 08:08:44 AM  

what_now: I feel terrible for all the poor men who now have to wait till some broad is sober to nail her, or other people will make them feel bad. How are they supposed to trick a girl into sex if they can't get her drunk?? Poor, poor men.


Poor, poor women, who have no sayso when it comes to the consumption of alcohol. They don't get drunk, you see. Men "get" them drunk. . . .
 
2014-06-01 08:14:17 AM  

markfara: what_now: I feel terrible for all the poor men who now have to wait till some broad is sober to nail her, or other people will make them feel bad. How are they supposed to trick a girl into sex if they can't get her drunk?? Poor, poor men.

Poor, poor women, who have no sayso when it comes to the consumption of alcohol. They don't get drunk, you see. Men "get" them drunk. . . .




No, we get drunk on our own. Sometimes, we get so drunk we make bad decisions, especially when young. So do men. Of course, when men get so drunk they make bad decisions, it rarely ends in sexual assault.

If you aren't sure if you're sober enough to drive, you don't drive. The same standard should apply to having sex with someone else.
 
2014-06-01 08:16:07 AM  
With privatized prisons, para-military levels of local law enforcement, and the TSA leading the way, "Guilty until proven innocent" is currently how things work in this country.  So, I guess I don't really see the point of the Kossack's screed.
 
2014-06-01 08:16:55 AM  

what_now: markfara: what_now: I feel terrible for all the poor men who now have to wait till some broad is sober to nail her, or other people will make them feel bad. How are they supposed to trick a girl into sex if they can't get her drunk?? Poor, poor men.

Poor, poor women, who have no sayso when it comes to the consumption of alcohol. They don't get drunk, you see. Men "get" them drunk. . . .

No, we get drunk on our own. Sometimes, we get so drunk we make bad decisions, especially when young. So do men. Of course, when men get so drunk they make bad decisions, it rarely ends in sexual assault.

If you aren't sure if you're sober enough to drive, you don't drive. The same standard should apply to having sex with someone else.


That was pretty much my point. Thanks for responding rationally.
 
2014-06-01 08:19:12 AM  

markfara: what_now: markfara: what_now: I feel terrible for all the poor men who now have to wait till some broad is sober to nail her, or other people will make them feel bad. How are they supposed to trick a girl into sex if they can't get her drunk?? Poor, poor men.

Poor, poor women, who have no sayso when it comes to the consumption of alcohol. They don't get drunk, you see. Men "get" them drunk. . . .

No, we get drunk on our own. Sometimes, we get so drunk we make bad decisions, especially when young. So do men. Of course, when men get so drunk they make bad decisions, it rarely ends in sexual assault.

If you aren't sure if you're sober enough to drive, you don't drive. The same standard should apply to having sex with someone else.

That was pretty much my point. Thanks for responding rationally.


I could be wrong, but I believe what_now was disagreeing with you. Did you change your mind about what you wrote?
 
2014-06-01 08:19:51 AM  

what_now: "But it's not fair you see. I didn't rape that slut, she just regretted having sex with me."


If 'Causing Sexual Regret' were a crime, just about everybody on FARK would be guilty...yeah, the virgins with the crusty tube sock, too.
 
2014-06-01 08:21:17 AM  
We can apply the Salem Witch Trial standards: We strap them to a board and dunk them.  If the drown, they're aren't rapists.  If they don't drown, they're rapists and we burn them.
 
2014-06-01 08:21:37 AM  
Not sure murder is a good comparison, in most cases I don't think you're allowed to kill someone even if they do consent.
 
2014-06-01 08:23:42 AM  

Wyalt Derp: Not sure murder is a good comparison, in most cases I don't think you're allowed to kill someone even if they do consent.


Transference of wealth is perfectly legal, as long as there is consent. "Your honor, he *gave* me his wallet."
 
2014-06-01 08:25:06 AM  
In order to prosecute a crime, you have to show a crime was committed.  In this way, rape is no different than any other crime; it's just harder to prove it was a crime if the man admits to sex, but claims it was consensual.

We tend to skip this step on something like burglary because if a defendant tries to beat the charge by admitting to having done the act, but claiming it was consensual, the defendant would go straight to jail without collecting $200.  And rightfully so -- it's reasonable to entertain the possibility that sex can be consensual, but unreasonable to think the same about burglary.

Even mere torts have to prove a wrongful act was committed.  If you loan me money and I refuse to pay it back, claiming it was a gift, you have to prove (at least to a judge) that you loaned me the money and didn't just give it to me as a gift.
 
2014-06-01 08:25:37 AM  
This is the worst idea. Basically, this person is arguing to make every sex act per se illegal.

The crime of rape is "did you have sex with that person without their consent?" Lack of consent is an element of the crime of rape. If you shift the burden of proving consent onto the defense (therefore making it an affirmative defense), the crime of rape becomes "did you have sex with that person?"

Meaning that anytime you had sex with anyone, you would be guilty of rape unless you could prove, in court, that they consented. It turns the concept of "innocent until proven guilty" entirely on its head, unless you're OK with "having sex" being a crime.

Under this rule, in theory, anytime two people had sex, the government could arrest them, charge them both with rape, and force both of them to prove that the other consented. Now, what if a socially conservative movement wins a few elections and passes a law that says something like, "a person can only consent to sexual intercourse with their legal spouse"?

Making sex a crime is just inviting an insane amount of government control into the bedroom. Imagine how much the "sex is evil, ban all contraception" crowd would salivate over this blogger's preferred rape law.
 
2014-06-01 08:26:14 AM  

Wake Up Sheeple: Tyrone Slothrop: Surely a woman would never lie about being raped.

How many men lie about being raped?


Most that have been to prison.
 
2014-06-01 08:26:40 AM  

Ambivalence: Some guy on some blog says something and it spawns a conversation with intelligent rebuttals and this is an indication of....something. Is that what you're trying to say subby?

Mission accomplished.  Good job.


It's an indication that the internet gave a voice to people best left without one.
 
2014-06-01 08:27:43 AM  

slothbuddy: In order to prosecute a crime, you have to show a crime was committed.  In this way, rape is no different than any other crime; it's just harder to prove it was a crime if the man admits to sex, but claims it was consensual.

We tend to skip this step on something like burglary because if a defendant tries to beat the charge by admitting to having done the act, but claiming it was consensual, the defendant would go straight to jail without collecting $200.  And rightfully so -- it's reasonable to entertain the possibility that sex can be consensual, but unreasonable to think the same about burglary.

Even mere torts have to prove a wrongful act was committed.  If you loan me money and I refuse to pay it back, claiming it was a gift, you have to prove (at least to a judge) that you loaned me the money and didn't just give it to me as a gift.


"Your honor, I walked up to him and asked if I could borrow $100, and he gave it to me. I was going to pay it back next week, just like I promised."

Pretty sure you have to prove a loan even happened.
 
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