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Some defendant is accused of rape by the woman he had sexual intercourse with.
Let's just say (for the sake of an easy and not totally uncommon example) that he climaxed leaving behind (and inside her vagina) a lot of genetic proof that he is the only person to have had his penis inside her vagina.
Do we imagine that the "defense" will be a denial along the lines of "I never had sexual relations with that woman?" OF COURSE NOT.
Thus, the "defense" is almost certainly going to be "it was consensual."
SHE is going to be denying that it was consensual. Bruises etc might support her claim that it was forcible. At that point, the State has enough evidence to support a conviction. But the defense has a right to present its own defense. It's defense is "consent!"
So why shouldn't the defense have some duty to prove up its own claim? The State already has at that point.
All that said, I do disagree with the idea that a defendant has any duty to prove it. They have a right to raise that defense (by evidence of some kind, as a rule), and once placed into issue, it should be the obligation of the State (the ones making the charge) to prove to the satisfaction of the jury beyond a reasonable doubt that there was no consent.
You had it exactly right until the last paragraph. It's the burden of the defendant to prove his defense.
No. I had it right all along. In our system, the defense generally has no burden of proof. The State always has it and it is not transferable.
That said, there IS such a thing as an "affirmative" defense. But that only imposes a duty on the defense to put forward evidence sufficient to raise the defense for the jury. The State has the burden of then overcoming it by -- proof beyond a reasonable doubt.
Florida Criminal Law Defenses | Criminal Affirmative DefensesFlorida Affirmative Defenses - Justification and Excuse
Under Florida law, an Affirmative Defense is a defense that operates to avoid (or cancel) the legal effect of a criminal act, which would ordinarily subject the accused to criminal liability. In an affirmative defense, the defendant admits the truth of the essential act (the act forming the basis of the prosecutors allegations), but justifies or excuses the act so as to avoid being subjected to criminal punishment. In effect, the defendant says: Yes, I committed the act. However, I am not subject to criminal liability because, under the facts and circumstances of my case, the act was justifiable or excusable.
For affirmative defenses raised in the course of a Florida jury trial, the defendant must present some evidence supporting an affirmative defense before the Court will grant a jury instruction on that defense. If the defendant presents evidence to support the instruction, then the jury will be instructed on the law as to that defense and will consider the defense during their deliberations.
That ^ is the basic proposition according to a Florida attorney.
http://www.floridasupremecourt.org/...ers/entireversion/onlinejurryinstructions.pdf at p. 77.The Florida Supreme Court has often decided, however, that once a defendant meets the burden
of production on an affirmative defense, the burden of persuasion is on the State to disprove the
affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary
prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See
the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
Those are the Florida pattern criminal jury instructions and it sets forth the basic proposition pretty well.
On an affirmative defense, of course the proponent (the defense) has the burden of coming forward with such evidence as will justify getting the proper charge to the jury. However, once that is accomplished, the STATE retains the obligation to disprove it beyond a reasonable doubt.
I suspect such a charge will be given to the jury by the presiding judge at Zimmerman's trial (assuming the defense comes forward with almost any evidence sufficient to raise the affirmative defense).
Some defendant is accused of rape by the woman he had sexual intercourse with.
Let's just say (for the sake of an easy and not totally uncommon example) that he climaxed leaving behind (and inside her vagina) a lot of genetic proof that he is the only person to have had his penis inside her vagina.
Do we imagine that the "defense" will be a denial along the lines of "I never had sexual relations with that woman?" OF COURSE NOT.
Thus, the "defense" is almost certainly going to be "it was consensual."
SHE is going to be denying that it was consensual. Bruises etc might support her claim that it was forcible. At that point, the State has enough evidence to support a conviction. But the defense has a right to present its own defense. It's defense is "consent!"
So why shouldn't the defense have some duty to prove up its own claim? The State already has at that point.
All that said, I do disagree with the idea that a defendant has any duty to prove it. They have a right to raise that defense (by evidence of some kind, as a rule), and once placed into issue, it should be the obligation of the State (the ones making the charge) to prove to the satisfaction of the jury beyond a reasonable doubt that there was no consent.
You had it exactly right until the last paragraph. It's the burden of the defendant to prove his defense.
: Criminal law has long held that if a man believed in good faith that the woman was consenting to intercourse, then he could not be found to have committed rape. Now, that requirement has been largely removed.
And noting that most rapes aren't reported, worrying about over-prosecution is a weird concern.
The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual."
Ok, for the people lambasting the OP as a "rape defender" or whatever, do you honestly think that this isn't just a little bit scary?
Given that the majority of sex still occurs between just 2 people, in a private location, this seems like a practically insurmountable challenge. The defendent has to effectively prove that his accuser is lying, in a situation where the only likely evidence is one person's word against another's.
?
You had it exactly right until the last paragraph. It's the burden of the defendant to prove his defense.
No. I had it right all along. In our system, the defense generally has no burden of proof. The State always has it and it is not transferable.
That said, there IS such a thing as an "affirmative" defense. But that only imposes a duty on the defense to put forward evidence sufficient to raise the defense for the jury. The State has the burden of then overcoming it by -- proof beyond a reasonable doubt.
Florida Criminal Law Defenses | Criminal Affirmative Defenses
That ^ is the basic proposition according to a Florida attorney.
http://www.floridasupremecourt.org/...ers/entireversion/onlinejurryinstructions.pdf at p. 77.The Florida Supreme Court has often decided, however, that once a defendant meets the burden
of production on an affirmative defense, the burden of persuasion is on the State to disprove the
affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary
prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See
the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
Those are the Florida pattern criminal jury instructions and it sets forth the basic proposition pretty well.
On an affirmative defense, of course the proponent (the defense) has the burden of coming forward with such evidence as will justify getting the proper charge to the jury. However, once that is accomplished, the STATE retains the obligation to disprove it beyond a reasonable doubt.
I suspect such a charge will be given to the jury by the presiding judge at Zimmerman's trial (assuming the defense comes forward with almost any evidence sufficient to raise the affirmative defense).
You really don't understand what you're reading. From your own source, "If the defendant presents evidence to support the instruction." That places a burden on the defendant to prove the defense. Just stating the defense, contrary to your claim, is not sufficient.
I would be very, very doubtful of no statute of limitations on a crime like rape. Relationships between people change and it is far too easy for anyone vindictive to charge press charges of rape. If the previous source is correct, 10% of false charges for something which can lead to long prison terms and stigmatize the innocent for life is far beyond the pale o acceptability.
How have the laws removed the presumption of innocence?
You just dismissed the OP's link and then post something diametrically opposed and equally easy to dismiss. If that doesn't give you pause for thought, nothing will. As dubious as I am about the stats provided, that does not counter the fact that rape is obviously open to abuse. Unlike charges of murder, for example, where you have to produce a body, allegations of rape can be made and are sometimes prosecuted without any physical evidence. That would almost certainly be the case of an accusation which takes place long after the alleged offense.I would be very, very doubtful of no statute of limitations on a crime like rape. Relationships between people change and it is far too easy for anyone vindictive to charge press charges of rape. If the previous source is correct, 10% of false charges for something which can lead to long prison terms and stigmatize the innocent for life is far beyond the pale o acceptability.
Contrary to what the OP is suggesting, rape is a very difficult crime to prove and is rarely reported. In fact rape is one of the most under reported crimes, less then half of rape victims report it to the police. On average 1 out of every 4 reported rapes lead to an arrest, and 3 out of every 100 rapists will see any jail time at all.
97 of Every 100 Rapists Receive No Punishment, RAINN Analysis Shows | RAINN | Rape, Abuse and Incest National Network
You just dismissed the OP's link and then post something diametrically opposed equally easy to dismiss. If that doesn't give you pause for thought, nothing will. As dubious as I am about the stats provided, that does not counter the fact that rape is obviously open to abuse. Unlike charges of murder, for example, where you have to produce a body, allegations of rape can be made and are sometimes prosecuted without any physical evidence. That would almost certainly be the case of an accusation which takes place long after the alleged offense.I would be very, very doubtful of no statute of limitations on a crime like rape. Relationships between people change and it is far too easy for anyone vindictive to charge press charges of rape. If the previous source is correct, 10% of false charges for something which can lead to long prison terms and stigmatize the innocent for life is far beyond the pale o acceptability.
Contrary to what the OP is suggesting, rape is a very difficult crime to prove and is rarely reported. In fact rape is one of the most under reported crimes, less then half of rape victims report it to the police. On average 1 out of every 4 reported rapes lead to an arrest, and 3 out of every 100 rapists will see any jail time at all.
97 of Every 100 Rapists Receive No Punishment, RAINN Analysis Shows | RAINN | Rape, Abuse and Incest National Network
BTW, link that laments the fact that its now illegal to have sex with a passed out girl is worth dismissing.[b\You just dismissed the OP's link [/b]and then post something diametrically opposed and equally easy to dismiss. If that doesn't give you pause for thought, nothing will. As dubious as I am about the stats provided, that does not counter the fact that rape is obviously open to abuse. Unlike charges of murder, for example, where you have to produce a body, allegations of rape can be made and are sometimes prosecuted without any physical evidence. That would almost certainly be the case of an accusation which takes place long after the alleged offense.I would be very, very doubtful of no statute of limitations on a crime like rape. Relationships between people change and it is far too easy for anyone vindictive to charge press charges of rape. If the previous source is correct, 10% of false charges for something which can lead to long prison terms and stigmatize the innocent for life is far beyond the pale o acceptability.
Contrary to what the OP is suggesting, rape is a very difficult crime to prove and is rarely reported. In fact rape is one of the most under reported crimes, less then half of rape victims report it to the police. On average 1 out of every 4 reported rapes lead to an arrest, and 3 out of every 100 rapists will see any jail time at all.
97 of Every 100 Rapists Receive No Punishment, RAINN Analysis Shows | RAINN | Rape, Abuse and Incest National Network
I found the statistics you provided through some organization for rape, incest and so on dubious at best. It also assumes that everyone accuse of rape is a rapist. Even if they were true, we could also easily infer that so few are prosecuted because so many were false. You would have to do far better than that to make the argument you wish. We are not children and this is not a issue for children.You just dismissed the OP's link and then post something diametrically opposed equally easy to dismiss. If that doesn't give you pause for thought, nothing will. As dubious as I am about the stats provided, that does not counter the fact that rape is obviously open to abuse. Unlike charges of murder, for example, where you have to produce a body, allegations of rape can be made and are sometimes prosecuted without any physical evidence. That would almost certainly be the case of an accusation which takes place long after the alleged offense.Contrary to what the OP is suggesting, rape is a very difficult crime to prove and is rarely reported. In fact rape is one of the most under reported crimes, less then half of rape victims report it to the police. On average 1 out of every 4 reported rapes lead to an arrest, and 3 out of every 100 rapists will see any jail time at all.
97 of Every 100 Rapists Receive No Punishment, RAINN Analysis Shows | RAINN | Rape, Abuse and Incest National Network
Of course rape is open to abuse, every crime is open to abuse. However, looking at the statistics, its very clear that rape is still a difficult crime to prove, most accusations never lead to an arrest and even less lead to a conviction.You still need more then your word to prove rape.
"1. Definition of Rape. In the past, the definition of rape included the forcible genital penetration of a person without her (or his) consent. Now, some groups define rape in terms of genital penetration in which either person has consumed any alcohol or drugs, thus rendering the person unable to give consent.
Having sex with someone who can't say yes, is rape. Laws that reflect that are a good thing.
"1. Definition of Rape. In the past, the definition of rape included the forcible genital penetration of a person without her (or his) consent. Now, some groups define rape in terms of genital penetration in which either person has consumed any alcohol or drugs, thus rendering the person unable to give consent.
Having sex with someone who can't say yes, is rape. Laws that reflect that are a good thing.
Case in point : The Steubenville "Rape" case:
It was never established by the prosecution that she was in fact unable to consent at the time the alleged acts occurred.
It was never established by the prosecution that she did not consent prior to consuming alcohol.
.
I see this as a reversal of the Abortion debate. A lot of Conservatives have taken the approach of "If you don't want to get pregnant, don't have sex". Now the shoe is on the other foot. If you don't want to get accused of rape, don't have sex.
