I need the alternatives and an explanation as to why the alternative is a better way to do things spelt out for me.
Innocent people are accused, charged and (hopefully) acquitted everyday. Only a handful get the protections offered in rape cases. I guess you could say they're all victims but what's the alternative? Only prosecute people when you're sure they're guilty?
Where'd this come from. I'm not against prosecutions I'm against the publics increasing tendancy to assume being charged =guilt.
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Who's assuming guilt? You? Me? The media? We can assume what we like but there are only 12 people whose decision matters. The same 12 people who, if there is a trial, will be asked to examine and consider all the evidence. How do you stop the public making assumptions about guilt or innocence? Don't allow the details of the case to be publicised at all?
I'm not sure what the argument is here. I already stated that I treat this, and any other case, as a trial with the presumption of innocence. Opinions are like the holes in our arses, we all have one. I prefer to stay in the realm of fact as much as possible.
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[B]So we'll be naming the kid in cases of pedophillia too I guess? Plaster pictures of abused 6 year olds on the front page of every newspaper? I know the argument for protecting her identity. Is there some reason why she should be identified other than fairness? How does identifying the victim stop people saying "if you're innocent, why are you being accused"?/B]
Where'd that come from but my position is that of equal protection and due process. You cannot, under the US constitution give priviledges to one innocent party and take away priviledges to another. Since both parties are assumed innocent, they should be treated equally. That means either no photographs or names or everybody get's photographed and named. If I'm accused wrongly for a crime and my face and name are plastered over the news, and I am aquitted..somebody is getting sued and somebody is going to be bankrupt. And if it isn't a case of mistaken identity I'll start with the "victim."
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I'm not sure whether you mean hide the rape or hide her past history. But I'll tell you this. We have similar protections for rape victims in Australia. Nevertheless, I'd think very carefully before going to the police if I was raped. Can't sue a rape case in our civil courts so money isn't an issue. I'm sure seeing the perpetrator convicted would bring some satisfaction but is it worth the months possibly years the case drags on? And the protection afforded the victim doesn't mean the trial would be a walk in the park or that the defendant's lawyer isn't going to try and make me look like a lying, faking bitch. And after all that, how am I going to feel if he's acquitted? Stopping him from doing it to anyone else would be a compelling reason but I'm not responsible for balancing the scales of justice.
From where I'm sitting, provided I could deal with the head stuff, I think just moving on and not looking back wouldn't be such a bad option. Now those are the pros and cons of reporting rape as I see it with all the protections for the victim applying. Take away the protections, name me, expose my sexual history in minute detail, infer in open court that I'm a slut who asked for it and you can forget it. If I'd just been raped then I think I'd like to preserve whatever dignity and self-respect I had left.
So what's the story here? Do you want to see rapists held to account or not? Or does the possibility of a false rape accusation mean we should only pay lip service to the victim?
Let me explain why I have my position. a friend of mine called me one night and told me her boyfriend had raped her. She was distraught. I got some of my friends and we proceeded to go to his home to handle the matter extra-judicially because we felt that she would be twice victimised by the court and we wanted to be sure that justice got served. We (7 of us) waited outside his house for about 2 hours. He failed to come home that night and we left, planning to return the next evening. That next day I got another call from the same friend who then recanted her story, She said what actually happened was that she went to his house and found a condom or some junk like that and decided that she wanted to get even with him. So here I was about to chance a felony assault charge and take in 6 of my friends who came on my word. from that day forward I vowed never, ever to assume that someone who is claiming to be raped has been raped. I wait until the evidence comes forward. I am 110% against violence against women, but so long as there are liars out there I will never agree with shielding the alleged victim or hobbling the defendant. And if it was your father I'm sure you would feel the same way.
Actually as OBJRA mentioned, civil suits are often filed after criminal proceedings because then you can use the criminal charge as further proof of liability.
Oh really!?!?
Sez me:
I realize that this is how it generally works, but I am talking about the very specific phenomenon...
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!!!!
Sondjata:
How does the rape shield law "hobble" a defendant?
This case proves that the rape shield laws don't hobble defendants. If there's a legitimate reason for sexual history evidence, which seems likely in this case, the judge can allow it. It just can't be introduced to argue "she's a slut."
Where'd this come from. I'm not against prosecutions I'm against the publics increasing tendancy to assume being charged =guilt.
Now don't go thinking I'm getting antsy. If I was there'd be derogatory references to the inadequacy of certain member's genitalia in my posts by now.
I don't know whether Kobe Bryant is guilty or not. I commented because I think rape cases are so emotionally charged and false accusations of rape even more so, that people lose perspective and start drawing conclusions that don't stand up to closer scrutiny. For instance, I don't think anybody who's said she's after the money has put forward a compelling case in support of that claim.
Nor do I think the arguments against rape shield laws have been very convincing. It hasn't been adequately explained to me how identifying the victim will stop people assuming he's guilty. I'm not even sure that's the conclusion the public has jumped to anyway. If there is a tendency for the general public to act as judge and jury before a trial even begins, I'm inclined to think it's probably got more to do with the way the media sensationalizes crime.
And I think the importance ascribed to false rape accusations has not been justified. Yes false accusations of rape occur and that's a dreadful thing but I cannot see why testing the validity of a rape allegation would be different to testing the validity of any other allegation. Rigorously examine the evidence for contradictions and inconsistencies. If it is proven this woman had sex soon after the alleged rape that's an interesting point but I need quite a bit more hard evidence than that to assume she made the whole thing up.
I feel like your saying that women who really have been raped should pay for those who make false allegations. I mean we've done the don't protect the victim thing where the victim is treated like a defendant and anything from her past is fair game. We did it for years. While there may have been fewer false accusations under that system, we changed that approach because there was overwhelming evidence that it discouraged many, many rape victims from coming forward and was a form of cruel and unusual punishment directed at the victim.
I also think when the issue of false rape accusations comes up, males become quite irrational and find it difficult to maintain objectivity. And that's an interesting phenomenon to observe.
Now don't go thinking I'm getting antsy. If I was there'd be derogatory references to the inadequacy of certain member's genitalia in my posts by now.
I don't know whether Kobe Bryant is guilty or not. I commented because I think rape cases are so emotionally charged and false accusations of rape even more so, that people lose perspective and start drawing conclusions that don't stand up to closer scrutiny. For instance, I don't think anybody who's said she's after the money has put forward a compelling case in support of that claim.
I agree with you there. No one has proven that she's after Kobe's money. That remains to be determined. That's why I'm more concerned with the criminal case. Again I agree, no one has proven money as a motive, though if put to me in a civil proceeding I would say it was "probable" ;-)
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Nor do I think the arguments against rape shield laws have been very convincing. It hasn't been adequately explained to me how identifying the victim will stop people assuming he's guilty. I'm not even sure that's the conclusion the public has jumped to anyway. If there is a tendency for the general public to act as judge and jury before a trial even begins, I'm inclined to think it's probably got more to do with the way the media sensationalizes crime.
I think you have decided to be for Rape Shield laws and that's why you remain unconvinced as to thier detrimental effect on the defendant. Rape sheild is about more than just the identity of the alleged victim, it also blocks discovery of thier own past patterns of behavoir while allowing the DA full access to the defendants past. That is inherently unequal. There's no convincing that needs to be done here. Either you agree that the defendant reserves the right to fully invetsigate the claimant or you don't.
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And I think the importance ascribed to false rape accusations has not been justified. Yes false accusations of rape occur and that's a dreadful thing but I cannot see why testing the validity of a rape allegation would be different to testing the validity of any other allegation. Rigorously examine the evidence for contradictions and inconsistencies. If it is proven this woman had sex soon after the alleged rape that's an interesting point but I need quite a bit more hard evidence than that to assume she made the whole thing up.
I agree, the investigation of a rape should be no different than the investigation of any other crime. And in any other crime the claimant's background is fair game so long as it is relevant to the trial.
Also I'm not saying she made the whole thing up. I'm saying that it is possible that Kobe raped her and then she had sex with another man soon after. It's possible but most experts will tell you that such behavior is abnormal. Thus given that it is the burden of the prosecution to prove that Kobe was indeed the rapist, the presence of third party sperm that was not found on Kobe, is damaging to that case because it opens up the <b>reasonable</b> question as to whether or not the third party was the rapist.
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I feel like your saying that women who really have been raped should pay for those who make false allegations. I mean we've done the don't protect the victim thing where the victim is treated like a defendant and anything from her past is fair game. We did it for years. While there may have been fewer false accusations under that system, we changed that approach because there was overwhelming evidence that it discouraged many, many rape victims from coming forward and was a form of cruel and unusual punishment directed at the victim.
I'm not saying that at all. I am saying that the rights of an innocent person must be maintained at all times. That means that the alleged victim must not be afforded any more rights than the accused. The point of doing this protects the system against false accusation. In a system where rape shield exists will actually promote false accusations because the accusor knows that she or he will not have to worry about their credibility being put on trial. You may argue that the numbers of false accusations are small, but I argue that the life and liberty of one innocent person outweighs rape shield.
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[B}I also think when the issue of false rape accusations comes up, males become quite irrational and find it difficult to maintain objectivity. And that's an interesting phenomenon to observe. [/B]
I think all parties on all sides become irrational and lose objectivity. Women tend to automatically believe the accusor mostly because they know it could have been them and they would like to have justice served if it was them.
Men know that false accusation happen too frequently and that the current system, in it's attempt to protect the alleged victim has tilted the tables where men can be railroaded into jail. Black men, such as myself, are in more danger because we know (and it has been proven) that the justice system is more likely to hand us long sentances and that police will lie, and that many white women who have sex with black men do so without the knowledge of thier parents and when found out risk alienation from the family and are likely ( however small) to cry rape. It has happened many many many times. that's not being irrational that is an educated observation.
I think you have decided to be for Rape Shield laws and that's why you remain unconvinced as to thier detrimental effect on the defendant. Rape sheild is about more than just the identity of the alleged victim, it also blocks discovery of thier own past patterns of behavoir while allowing the DA full access to the defendants past. That is inherently unequal. There's no convincing that needs to be done here. Either you agree that the defendant reserves the right to fully invetsigate the claimant or you don't.
I agree, the investigation of a rape should be no different than the investigation of any other crime. And in any other crime the claimant's background is fair game so long as it is relevant to the trial.
I'm not saying that at all. I am saying that the rights of an innocent person must be maintained at all times. That means that the alleged victim must not be afforded any more rights than the accused. The point of doing this protects the system against false accusation. In a system where rape shield exists will actually promote false accusations because the accusor knows that she or he will not have to worry about their credibility being put on trial. You may argue that the numbers of false accusations are small, but I argue that the life and liberty of one innocent person outweighs rape shield.
OK. These paragraphs address many of the aspects of rape shield that those who oppose it, including your fine self, seem to have a problem with. So.....
Say Woman A claims to have been raped by Man B. Let's assume neither of them are famous or rich and let's also assume that thorough research has not turned up any evidence of Woman A having made any previous false allegations of rape or any other crime against anyone. Also assume that, as is so often the case with rape, the physical evidence is inconclusive. It's her word against his.
Give me some specific examples of information about this woman that is currently protected by rape shield that could support or undermine her credibility.
I'm prepared to cop that rape shield may encourage false accusations to a degree. However, in the absence of rape shield, women are less inclined to report rape and fewer rapists are brought to trial.
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Originally posted by Sondjata
but I argue that the life and liberty of one innocent person outweighs rape shield
I think the judicial system is inherently flawed and that this is due to weaknesses created by the principles on which the system is based and/or human fallibility. I can't see that mistakes can ever be entirely avoided; only minimised. It's a balancing act between the rights of the victim and the rights of the accused. You say they should have equal rights. Is that what you get in practice if you remove rape shield? If one innocent person avoids a wrong conviction that's worth more than any number of rapists walking free? It's worth more than any number of rapes they may go on to commit? It's worth more than any number of unreported rapes?
It might give them equal rights but I'm not sure it minimises mistakes and maximizes justice.
Rape sheild is about more than just the identity of the alleged victim, it also blocks discovery of thier own past patterns of behavoir while allowing the DA full access to the defendants past.
The rape shield laws do not block discovery of the accuser's past.
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Men know that false accusation happen too frequently and that the current system, in it's attempt to protect the alleged victim has tilted the tables where men can be railroaded into jail.
Rape is heavily underreported. There are exponentially more silent victims than falsely accused.
[B]OK. These paragraphs address many of the aspects of rape shield that those who oppose it, including your fine self, seem to have a problem with. So.....
Say Woman A claims to have been raped by Man B. Let's assume neither of them are famous or rich and let's also assume that thorough research has not turned up any evidence of Woman A having made any previous false allegations of rape or any other crime against anyone. Also assume that, as is so often the case with rape, the physical evidence is inconclusive. It's her word against his.
Give me some specific examples of information about this woman that is currently protected by rape shield that could support or undermine her credibility.
Depends on the case. I can't say. I believe that the only time such a situation will happen is with a date-rape scenario where issues of consent are present. other cases such as "pounce-rapes" are far easier to convict.
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[B]I'm prepared to cop that rape shield may encourage false accusations to a degree. However, in the absence of rape shield, women are less inclined to report rape and fewer rapists are brought to trial.[B]
I think women are disinclined to report rapes because they often involve persons they know (husband, lover, ex-lover, relatives) or there is shame of the act. This is a social problem not a proceedural problem.
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I think the judicial system is inherently flawed and that this is due to weaknesses created by the principles on which the system is based and/or human fallibility. I can't see that mistakes can ever be entirely avoided; only minimised. It's a balancing act between the rights of the victim and the rights of the accused. You say they should have equal rights. Is that what you get in practice if you remove rape shield? If one innocent person avoids a wrong conviction that's worth more than any number of rapists walking free? It's worth more than any number of rapes they may go on to commit? It's worth more than any number of unreported rapes?
It might give them equal rights but I'm not sure it minimises mistakes and maximizes justice.
It is my position that not a single innnocent person should have thier life or liberty taken by the state. Period. No exceptions. Such a position argues strongly for affording both the defence and the prosecution all the resources neccessary to find the truth. Again, It is very easy to say, "what's a few innocents" but if that innocent was you or your loved one that position would change. Mine however would not.
You still haven't provided any specifics on how rape shield laws hurt defendants.
The defense can research anything they want, rape shield only determines what can be made public and what is admissable in court.
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I think women are disinclined to report rapes because they often involve persons they know (husband, lover, ex-lover, relatives) or there is shame of the act. This is a social problem not a proceedural problem.
Shame is a procedural problem? That's a social problem.
Look at what's going on in Sudan, women are not reporting mass rapes because of the social stigma. If you think the US is much different you are fooling yourself.
You still haven't provided any specifics on how rape shield laws hurt defendants.
The defense can research anything they want, rape shield only determines what can be made public and what is admissable in court.
Shame is a procedural problem? That's a social problem.
Look at what's going on in Sudan, women are not reporting mass rapes because of the social stigma. If you think the US is much different you are fooling yourself.
Our society hates rape victims.
Dude.. apparently you haven't read my post. Go re-read it and then post a reply.
Depends on the case. I can't say. I believe that the only time such a situation will happen is with a date-rape scenario where issues of consent are present. other cases such as "pounce-rapes" are far easier to convict.
I had a feeling you'd say that. Just wanted to see if you could convince me there was some background info about the woman that wouldn't judge her character. Oh well. So why specifically date rape?
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I think women are disinclined to report rapes because they often involve persons they know (husband, lover, ex-lover, relatives) or there is shame of the act. This is a social problem not a proceedural problem.
Yeah I'm sure that's true but the fact is the number of rapes reported has increased markedly since rape shield laws were introduced. I saw a doco a few years back about child sex abuse cases. The defense lawyer was merciless in his attempts to trip the child up and shoot holes in their evidence. You've got an 8 year old kid (sobbing) being grilled by a 45 year old guy with questions like "But you just said he put his penis in your mouth now you're saying he made you touch his penis first. You never said that before. Are you telling lies? I think you are!" That's what we do to little kids in an effort to ensure an innocent person isn't convicted and they're granted more protection than rape shield provides. A rape trial isn't a walk in the park for the victim just because the defense can't mention how many men she slept with last month.
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It is my position that not a single innnocent person should have thier life or liberty taken by the state. Period. No exceptions. Such a position argues strongly for affording both the defence and the prosecution all the resources neccessary to find the truth. Again, It is very easy to say, "what's a few innocents" but if that innocent was you or your loved one that position would change. Mine however would not.
You'll have to wrestle with the taking of innocent people's lives with your fellow Americans. We abandoned state sanctioned murder decades ago.
But I have a loved one who spent several years in prison so I know what it means to take away a person's liberty. It means locking people up in dangerous, barbaric, degrading shit holes. I don't take it lightly whether a person is innocent or guilty. So if you think I'm blithely saying "what's a few innocents", think again.
Nevertheless, I cannot imagine how you could design a workable justice system that never makes mistakes. The burden of proof would have to be "beyond ALL doubt" for starters. You'd end up making it impossibly hard to secure a conviction and a system so biased in the defendant's favor it would be even less fair than what we've got now.
I had a feeling you'd say that. Just wanted to see if you could convince me there was some background info about the woman that wouldn't judge her character. Oh well. So why specifically date rape?
Yeah I'm sure that's true but the fact is the number of rapes reported has increased markedly since rape shield laws were introduced. I saw a doco a few years back about child sex abuse cases. The defense lawyer was merciless in his attempts to trip the child up and shoot holes in their evidence. You've got an 8 year old kid (sobbing) being grilled by a 45 year old guy with questions like "But you just said he put his penis in your mouth now you're saying he made you touch his penis first. You never said that before. Are you telling lies? I think you are!" That's what we do to little kids in an effort to ensure an innocent person isn't convicted and they're granted more protection than rape shield provides. A rape trial isn't a walk in the park for the victim just because the defense can't mention how many men she slept with last month.
You'll have to wrestle with the taking of innocent people's lives with your fellow Americans. We abandoned state sanctioned murder decades ago.
But I have a loved one who spent several years in prison so I know what it means to take away a person's liberty. It means locking people up in dangerous, barbaric, degrading shit holes. I don't take it lightly whether a person is innocent or guilty. So if you think I'm blithely saying "what's a few innocents", think again.
Nevertheless, I cannot imagine how you could design a workable justice system that never makes mistakes. The burden of proof would have to be "beyond ALL doubt" for starters. You'd end up making it impossibly hard to secure a conviction and a system so biased in the defendant's favor it would be even less fair than what we've got now.
Well on the topic of children, I don't think that the Kobe situation and the situation of an 8 year old are the same. The biggest problem being that an 8 year old is legally unable to give consent to sexual behavior. I do know that the point of "Witness badgering" is to make sure that people have not been given stories to tell. I know it looks bad but you'd be surprised at the sheer number of set up there are. For example, 75% of child abuse calls made to family services in New Jersey. USA are found to be false. By your logic, simply because a claim is made and there "seems" to be evidence 75% of the people suspected of child abuse would have their homes wrecked.
As for perfect systems. I know no system in perfect. Again I choose, and the constitution of the US was written to err on the side of innocence in order to protect the innocent from wrongful prosecution. In this particular case the system is possibly failing not neccessarily because rape shiled laws were violated, but because the victim failed to follow proceedure. That is immediately report the rape and get the neccessary evidence collected to avoid contamination. She didn't do this so she partially failed herself.
Well on the topic of children, I don't think that the Kobe situation and the situation of an 8 year old are the same. The biggest problem being that an 8 year old is legally unable to give consent to sexual behavior. I do know that the point of "Witness badgering" is to make sure that people have not been given stories to tell. I know it looks bad but you'd be surprised at the sheer number of set up there are. For example, 75% of child abuse calls made to family services in New Jersey. USA are found to be false. By your logic, simply because a claim is made and there "seems" to be evidence 75% of the people suspected of child abuse would have their homes wrecked.
As for perfect systems. I know no system in perfect. Again I choose, and the constitution of the US was written to err on the side of innocence in order to protect the innocent from wrongful prosecution. In this particular case the system is possibly failing not neccessarily because rape shiled laws were violated, but because the victim failed to follow proceedure. That is immediately report the rape and get the neccessary evidence collected to avoid contamination. She didn't do this so she partially failed herself.
The child being unable to give consent is irrelevant to the point I was making. I understand perfectly why the defense was badgering the witness and why the judge permitted it to go as far as it did. You're the one arguing rape shield favors the accuser and makes it too easy to gain a (possibly wrongful) conviction. My point was that protections given to the accuser do not prevent the defense from rigorously challenging their evidence even when the accuser is a young child. And the defense would be permitted even more leeway against an adult woman accusing a man of rape. At no stage have I suggested that because a claim has been made and there seems to be evidence, the accused's guilt is a foregone conclusion. On the contrary, you seem to be the one saying rape shield rubber stamps a guilty verdict. If 75% of child abuse calls in NJ are found to be false, I'd say the system appears to be doing well at avoiding miscarriages of justice.
The victim failed to follow procedure makes it sound like there's some obligation to report a crime. As far as I know, this isn't the case. The only person disadvantaged by the woman not reporting the rape sooner is herself. Some of her rape shield protections have been reduced to specifically protect the defendant's right to be presumed innocent until proven guilty. I've already said I'm prepared to accept that. Whereas you seem to be saying false accusations of rape are so common, the defendant's right to challenge their accuser should be unlimited even if there is no evidence to indicate their right to be presumed innocent is being denied.
The child being unable to give consent is irrelevant to the point I was making. I understand perfectly why the defense was badgering the witness and why the judge permitted it to go as far as it did. You're the one arguing rape shield favors the accuser and makes it too easy to gain a (possibly wrongful) conviction. My point was that protections given to the accuser do not prevent the defense from rigorously challenging their evidence even when the accuser is a young child. And the defense would be permitted even more leeway against an adult woman accusing a man of rape. At no stage have I suggested that because a claim has been made and there seems to be evidence, the accused's guilt is a foregone conclusion. On the contrary, you seem to be the one saying rape shield rubber stamps a guilty verdict. If 75% of child abuse calls in NJ are found to be false, I'd say the system appears to be doing well at avoiding miscarriages of justice.
The victim failed to follow procedure makes it sound like there's some obligation to report a crime. As far as I know, this isn't the case. The only person disadvantaged by the woman not reporting the rape sooner is herself. Some of her rape shield protections have been reduced to specifically protect the defendant's right to be presumed innocent until proven guilty. I've already said I'm prepared to accept that. Whereas you seem to be saying false accusations of rape are so common, the defendant's right to challenge their accuser should be unlimited even if there is no evidence to indicate their right to be presumed innocent is being denied.
You have taken my comments completely wrong. I'll avoid a long response and just give the outine
1) Rape Shield laws that prevent the defense from investigating the accusor for possible motives for lying or whatever are wrong. Protecting the alleged victims identity while allow the assumed innocent persons identity to be known is wrong and is in direct violation of equal protection under the US constitution. Bottom line: both the accused and the accusor should have the same priviledges and rights where a trial is concerned.
2) As far as the system in concerned if a crime is not reported ( by the victim or the police) it has not legally happened. In the case of rape, only the stupid think that not immeditaly getting forensic evidence collected is a "good thing." It damages the alleged victims case.
1) Rape Shield laws that prevent the defense from investigating the accusor for possible motives for lying or whatever are wrong. Protecting the alleged victims identity while allow the assumed innocent persons identity to be known is wrong and is in direct violation of equal protection under the US constitution. Bottom line: both the accused and the accusor should have the same priviledges and rights where a trial is concerned.
That is laughable. Sorry, but are you a 1L? Have you taken your con-law classes yet?
While it is true that Rape-Shield can be a painful hinderance for th defense, and it might even seem unfair... it doesn't even come close to a consitutional crisis.
In case you were looking for a refresher, the 14th Amendment says:
"(no state shall) deny to any person within its jurisdiction the equal protection of the laws."
It means that States cannot enforce laws differently for different people. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. It makes it illegal, for example, to say that a certain race is precluded from obtaining driver's licenses because of their race.
The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application.
The rape-shield law only applies to victims. It would only be a violation if the law said that there was only a shield to victims that are white, or that it only applies to elderly victims.
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2) As far as the system in concerned if a crime is not reported ( by the victim or the police) it has not legally happened. In the case of rape, only the stupid think that not immeditaly getting forensic evidence collected is a "good thing." It damages the alleged victims case.
Actually, that's also not true. If you run a stoplight and no police officer sees you, you have still violated the law... committed a crime. You won't be prosecuted, but the law doesn't depend on a report to be violated.
That is laughable. Sorry, but are you a 1L? Have you taken your con-law classes yet?
While it is true that Rape-Shield can be a painful hinderance for th defense, and it might even seem unfair... it doesn't even come close to a consitutional crisis.
In case you were looking for a refresher, the 14th Amendment says:
"(no state shall) deny to any person within its jurisdiction the equal protection of the laws."
It means that States cannot enforce laws differently for different people. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. It makes it illegal, for example, to say that a certain race is precluded from obtaining driver's licenses because of their race.
The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application.
The rape-shield law only applies to victims. It would only be a violation if the law said that there was only a shield to victims that are white, or that it only applies to elderly victims.
Actually, that's also not true. If you run a stoplight and no police officer sees you, you have still violated the law... committed a crime. You won't be prosecuted, but the law doesn't depend on a report to be violated.
Recent IS history shows that even in the case of equal application is moot if the law itself is found to be unconstitutional. For example, it was law in many states that blacks were to be legally separated from whites. This violated the 14th Amendment and such laws, though equally applied, were found to be inherently unequal. This is similar to the upcoming challenges on Gay marriage. the charges are that they are legally enshrined discrimination which would be in violation of the Constitution. The laws specifcally state that marriage is between man and woman yet the challenges are that the laws themselves are discriminatory. What is clear to me is that rape shield laws have not been suffciently or properly challenged ( and I could be wrong) to test thier constitutionality.
Anyway, as you pointed out Rape Shield may result in <b> hinderance"</b> of the defences ability to refute the accusation, a hinderace that would not exist in any other criminal proceeding. I don't see how anyone could say that is not unfair. If one hinders a person then one explicitly gives an edge to another (some may say it levels the field and it may do so in some situations).
At this point, it seems the stress of the court case has been more harmful to both parties than the damage claimed from the alleged crime.
Not to take the emotional toll of rape lightly, but cases and public scrutiny like this leave lasting emotional marks for many years. Sometimes even for life. It is important to remember that lives are ruined no matter who is telling the truth.
Comments
Originally posted by crazychester
I need the alternatives and an explanation as to why the alternative is a better way to do things spelt out for me.
Innocent people are accused, charged and (hopefully) acquitted everyday. Only a handful get the protections offered in rape cases. I guess you could say they're all victims but what's the alternative? Only prosecute people when you're sure they're guilty?
Where'd this come from. I'm not against prosecutions I'm against the publics increasing tendancy to assume being charged =guilt.
Who's assuming guilt? You? Me? The media? We can assume what we like but there are only 12 people whose decision matters. The same 12 people who, if there is a trial, will be asked to examine and consider all the evidence. How do you stop the public making assumptions about guilt or innocence? Don't allow the details of the case to be publicised at all?
I'm not sure what the argument is here. I already stated that I treat this, and any other case, as a trial with the presumption of innocence. Opinions are like the holes in our arses, we all have one. I prefer to stay in the realm of fact as much as possible.
[B]So we'll be naming the kid in cases of pedophillia too I guess? Plaster pictures of abused 6 year olds on the front page of every newspaper? I know the argument for protecting her identity. Is there some reason why she should be identified other than fairness? How does identifying the victim stop people saying "if you're innocent, why are you being accused"?/B]
Where'd that come from but my position is that of equal protection and due process. You cannot, under the US constitution give priviledges to one innocent party and take away priviledges to another. Since both parties are assumed innocent, they should be treated equally. That means either no photographs or names or everybody get's photographed and named. If I'm accused wrongly for a crime and my face and name are plastered over the news, and I am aquitted..somebody is getting sued and somebody is going to be bankrupt. And if it isn't a case of mistaken identity I'll start with the "victim."
I'm not sure whether you mean hide the rape or hide her past history. But I'll tell you this. We have similar protections for rape victims in Australia. Nevertheless, I'd think very carefully before going to the police if I was raped. Can't sue a rape case in our civil courts so money isn't an issue. I'm sure seeing the perpetrator convicted would bring some satisfaction but is it worth the months possibly years the case drags on? And the protection afforded the victim doesn't mean the trial would be a walk in the park or that the defendant's lawyer isn't going to try and make me look like a lying, faking bitch. And after all that, how am I going to feel if he's acquitted? Stopping him from doing it to anyone else would be a compelling reason but I'm not responsible for balancing the scales of justice.
From where I'm sitting, provided I could deal with the head stuff, I think just moving on and not looking back wouldn't be such a bad option. Now those are the pros and cons of reporting rape as I see it with all the protections for the victim applying. Take away the protections, name me, expose my sexual history in minute detail, infer in open court that I'm a slut who asked for it and you can forget it. If I'd just been raped then I think I'd like to preserve whatever dignity and self-respect I had left.
So what's the story here? Do you want to see rapists held to account or not? Or does the possibility of a false rape accusation mean we should only pay lip service to the victim?
Let me explain why I have my position. a friend of mine called me one night and told me her boyfriend had raped her. She was distraught. I got some of my friends and we proceeded to go to his home to handle the matter extra-judicially because we felt that she would be twice victimised by the court and we wanted to be sure that justice got served. We (7 of us) waited outside his house for about 2 hours. He failed to come home that night and we left, planning to return the next evening. That next day I got another call from the same friend who then recanted her story, She said what actually happened was that she went to his house and found a condom or some junk like that and decided that she wanted to get even with him. So here I was about to chance a felony assault charge and take in 6 of my friends who came on my word. from that day forward I vowed never, ever to assume that someone who is claiming to be raped has been raped. I wait until the evidence comes forward. I am 110% against violence against women, but so long as there are liars out there I will never agree with shielding the alleged victim or hobbling the defendant. And if it was your father I'm sure you would feel the same way.
Actually as OBJRA mentioned, civil suits are often filed after criminal proceedings because then you can use the criminal charge as further proof of liability.
Oh really!?!?
Sez me:
I realize that this is how it generally works, but I am talking about the very specific phenomenon...
!
!!!!
Sondjata:
How does the rape shield law "hobble" a defendant?
Originally posted by Sondjata
Where'd this come from. I'm not against prosecutions I'm against the publics increasing tendancy to assume being charged =guilt.
Now don't go thinking I'm getting antsy. If I was there'd be derogatory references to the inadequacy of certain member's genitalia in my posts by now.
I don't know whether Kobe Bryant is guilty or not. I commented because I think rape cases are so emotionally charged and false accusations of rape even more so, that people lose perspective and start drawing conclusions that don't stand up to closer scrutiny. For instance, I don't think anybody who's said she's after the money has put forward a compelling case in support of that claim.
Nor do I think the arguments against rape shield laws have been very convincing. It hasn't been adequately explained to me how identifying the victim will stop people assuming he's guilty. I'm not even sure that's the conclusion the public has jumped to anyway. If there is a tendency for the general public to act as judge and jury before a trial even begins, I'm inclined to think it's probably got more to do with the way the media sensationalizes crime.
And I think the importance ascribed to false rape accusations has not been justified. Yes false accusations of rape occur and that's a dreadful thing but I cannot see why testing the validity of a rape allegation would be different to testing the validity of any other allegation. Rigorously examine the evidence for contradictions and inconsistencies. If it is proven this woman had sex soon after the alleged rape that's an interesting point but I need quite a bit more hard evidence than that to assume she made the whole thing up.
I feel like your saying that women who really have been raped should pay for those who make false allegations. I mean we've done the don't protect the victim thing where the victim is treated like a defendant and anything from her past is fair game. We did it for years. While there may have been fewer false accusations under that system, we changed that approach because there was overwhelming evidence that it discouraged many, many rape victims from coming forward and was a form of cruel and unusual punishment directed at the victim.
I also think when the issue of false rape accusations comes up, males become quite irrational and find it difficult to maintain objectivity. And that's an interesting phenomenon to observe.
Originally posted by crazychester
Now don't go thinking I'm getting antsy. If I was there'd be derogatory references to the inadequacy of certain member's genitalia in my posts by now.
I don't know whether Kobe Bryant is guilty or not. I commented because I think rape cases are so emotionally charged and false accusations of rape even more so, that people lose perspective and start drawing conclusions that don't stand up to closer scrutiny. For instance, I don't think anybody who's said she's after the money has put forward a compelling case in support of that claim.
I agree with you there. No one has proven that she's after Kobe's money. That remains to be determined. That's why I'm more concerned with the criminal case. Again I agree, no one has proven money as a motive, though if put to me in a civil proceeding I would say it was "probable" ;-)
Nor do I think the arguments against rape shield laws have been very convincing. It hasn't been adequately explained to me how identifying the victim will stop people assuming he's guilty. I'm not even sure that's the conclusion the public has jumped to anyway. If there is a tendency for the general public to act as judge and jury before a trial even begins, I'm inclined to think it's probably got more to do with the way the media sensationalizes crime.
I think you have decided to be for Rape Shield laws and that's why you remain unconvinced as to thier detrimental effect on the defendant. Rape sheild is about more than just the identity of the alleged victim, it also blocks discovery of thier own past patterns of behavoir while allowing the DA full access to the defendants past. That is inherently unequal. There's no convincing that needs to be done here. Either you agree that the defendant reserves the right to fully invetsigate the claimant or you don't.
And I think the importance ascribed to false rape accusations has not been justified. Yes false accusations of rape occur and that's a dreadful thing but I cannot see why testing the validity of a rape allegation would be different to testing the validity of any other allegation. Rigorously examine the evidence for contradictions and inconsistencies. If it is proven this woman had sex soon after the alleged rape that's an interesting point but I need quite a bit more hard evidence than that to assume she made the whole thing up.
I agree, the investigation of a rape should be no different than the investigation of any other crime. And in any other crime the claimant's background is fair game so long as it is relevant to the trial.
Also I'm not saying she made the whole thing up. I'm saying that it is possible that Kobe raped her and then she had sex with another man soon after. It's possible but most experts will tell you that such behavior is abnormal. Thus given that it is the burden of the prosecution to prove that Kobe was indeed the rapist, the presence of third party sperm that was not found on Kobe, is damaging to that case because it opens up the <b>reasonable</b> question as to whether or not the third party was the rapist.
I feel like your saying that women who really have been raped should pay for those who make false allegations. I mean we've done the don't protect the victim thing where the victim is treated like a defendant and anything from her past is fair game. We did it for years. While there may have been fewer false accusations under that system, we changed that approach because there was overwhelming evidence that it discouraged many, many rape victims from coming forward and was a form of cruel and unusual punishment directed at the victim.
I'm not saying that at all. I am saying that the rights of an innocent person must be maintained at all times. That means that the alleged victim must not be afforded any more rights than the accused. The point of doing this protects the system against false accusation. In a system where rape shield exists will actually promote false accusations because the accusor knows that she or he will not have to worry about their credibility being put on trial. You may argue that the numbers of false accusations are small, but I argue that the life and liberty of one innocent person outweighs rape shield.
[B}I also think when the issue of false rape accusations comes up, males become quite irrational and find it difficult to maintain objectivity. And that's an interesting phenomenon to observe. [/B]
I think all parties on all sides become irrational and lose objectivity. Women tend to automatically believe the accusor mostly because they know it could have been them and they would like to have justice served if it was them.
Men know that false accusation happen too frequently and that the current system, in it's attempt to protect the alleged victim has tilted the tables where men can be railroaded into jail. Black men, such as myself, are in more danger because we know (and it has been proven) that the justice system is more likely to hand us long sentances and that police will lie, and that many white women who have sex with black men do so without the knowledge of thier parents and when found out risk alienation from the family and are likely ( however small) to cry rape. It has happened many many many times. that's not being irrational that is an educated observation.
Originally posted by Sondjata
I think you have decided to be for Rape Shield laws and that's why you remain unconvinced as to thier detrimental effect on the defendant. Rape sheild is about more than just the identity of the alleged victim, it also blocks discovery of thier own past patterns of behavoir while allowing the DA full access to the defendants past. That is inherently unequal. There's no convincing that needs to be done here. Either you agree that the defendant reserves the right to fully invetsigate the claimant or you don't.
I agree, the investigation of a rape should be no different than the investigation of any other crime. And in any other crime the claimant's background is fair game so long as it is relevant to the trial.
I'm not saying that at all. I am saying that the rights of an innocent person must be maintained at all times. That means that the alleged victim must not be afforded any more rights than the accused. The point of doing this protects the system against false accusation. In a system where rape shield exists will actually promote false accusations because the accusor knows that she or he will not have to worry about their credibility being put on trial. You may argue that the numbers of false accusations are small, but I argue that the life and liberty of one innocent person outweighs rape shield.
OK. These paragraphs address many of the aspects of rape shield that those who oppose it, including your fine self, seem to have a problem with. So.....
Say Woman A claims to have been raped by Man B. Let's assume neither of them are famous or rich and let's also assume that thorough research has not turned up any evidence of Woman A having made any previous false allegations of rape or any other crime against anyone. Also assume that, as is so often the case with rape, the physical evidence is inconclusive. It's her word against his.
Give me some specific examples of information about this woman that is currently protected by rape shield that could support or undermine her credibility.
I'm prepared to cop that rape shield may encourage false accusations to a degree. However, in the absence of rape shield, women are less inclined to report rape and fewer rapists are brought to trial.
Originally posted by Sondjata
but I argue that the life and liberty of one innocent person outweighs rape shield
I think the judicial system is inherently flawed and that this is due to weaknesses created by the principles on which the system is based and/or human fallibility. I can't see that mistakes can ever be entirely avoided; only minimised. It's a balancing act between the rights of the victim and the rights of the accused. You say they should have equal rights. Is that what you get in practice if you remove rape shield? If one innocent person avoids a wrong conviction that's worth more than any number of rapists walking free? It's worth more than any number of rapes they may go on to commit? It's worth more than any number of unreported rapes?
It might give them equal rights but I'm not sure it minimises mistakes and maximizes justice.
Rape sheild is about more than just the identity of the alleged victim, it also blocks discovery of thier own past patterns of behavoir while allowing the DA full access to the defendants past.
The rape shield laws do not block discovery of the accuser's past.
Men know that false accusation happen too frequently and that the current system, in it's attempt to protect the alleged victim has tilted the tables where men can be railroaded into jail.
Rape is heavily underreported. There are exponentially more silent victims than falsely accused.
Originally posted by crazychester
[B]OK. These paragraphs address many of the aspects of rape shield that those who oppose it, including your fine self, seem to have a problem with. So.....
Say Woman A claims to have been raped by Man B. Let's assume neither of them are famous or rich and let's also assume that thorough research has not turned up any evidence of Woman A having made any previous false allegations of rape or any other crime against anyone. Also assume that, as is so often the case with rape, the physical evidence is inconclusive. It's her word against his.
Give me some specific examples of information about this woman that is currently protected by rape shield that could support or undermine her credibility.
Depends on the case. I can't say. I believe that the only time such a situation will happen is with a date-rape scenario where issues of consent are present. other cases such as "pounce-rapes" are far easier to convict.
[B]I'm prepared to cop that rape shield may encourage false accusations to a degree. However, in the absence of rape shield, women are less inclined to report rape and fewer rapists are brought to trial.[B]
I think women are disinclined to report rapes because they often involve persons they know (husband, lover, ex-lover, relatives) or there is shame of the act. This is a social problem not a proceedural problem.
I think the judicial system is inherently flawed and that this is due to weaknesses created by the principles on which the system is based and/or human fallibility. I can't see that mistakes can ever be entirely avoided; only minimised. It's a balancing act between the rights of the victim and the rights of the accused. You say they should have equal rights. Is that what you get in practice if you remove rape shield? If one innocent person avoids a wrong conviction that's worth more than any number of rapists walking free? It's worth more than any number of rapes they may go on to commit? It's worth more than any number of unreported rapes?
It might give them equal rights but I'm not sure it minimises mistakes and maximizes justice.
It is my position that not a single innnocent person should have thier life or liberty taken by the state. Period. No exceptions. Such a position argues strongly for affording both the defence and the prosecution all the resources neccessary to find the truth. Again, It is very easy to say, "what's a few innocents" but if that innocent was you or your loved one that position would change. Mine however would not.
The defense can research anything they want, rape shield only determines what can be made public and what is admissable in court.
I think women are disinclined to report rapes because they often involve persons they know (husband, lover, ex-lover, relatives) or there is shame of the act. This is a social problem not a proceedural problem.
Shame is a procedural problem? That's a social problem.
Look at what's going on in Sudan, women are not reporting mass rapes because of the social stigma. If you think the US is much different you are fooling yourself.
Our society hates rape victims.
Originally posted by groverat
You still haven't provided any specifics on how rape shield laws hurt defendants.
The defense can research anything they want, rape shield only determines what can be made public and what is admissable in court.
Shame is a procedural problem? That's a social problem.
Look at what's going on in Sudan, women are not reporting mass rapes because of the social stigma. If you think the US is much different you are fooling yourself.
Our society hates rape victims.
Dude.. apparently you haven't read my post. Go re-read it and then post a reply.
Originally posted by Sondjata
Depends on the case. I can't say. I believe that the only time such a situation will happen is with a date-rape scenario where issues of consent are present. other cases such as "pounce-rapes" are far easier to convict.
I had a feeling you'd say that. Just wanted to see if you could convince me there was some background info about the woman that wouldn't judge her character. Oh well. So why specifically date rape?
I think women are disinclined to report rapes because they often involve persons they know (husband, lover, ex-lover, relatives) or there is shame of the act. This is a social problem not a proceedural problem.
Yeah I'm sure that's true but the fact is the number of rapes reported has increased markedly since rape shield laws were introduced. I saw a doco a few years back about child sex abuse cases. The defense lawyer was merciless in his attempts to trip the child up and shoot holes in their evidence. You've got an 8 year old kid (sobbing) being grilled by a 45 year old guy with questions like "But you just said he put his penis in your mouth now you're saying he made you touch his penis first. You never said that before. Are you telling lies? I think you are!" That's what we do to little kids in an effort to ensure an innocent person isn't convicted and they're granted more protection than rape shield provides. A rape trial isn't a walk in the park for the victim just because the defense can't mention how many men she slept with last month.
It is my position that not a single innnocent person should have thier life or liberty taken by the state. Period. No exceptions. Such a position argues strongly for affording both the defence and the prosecution all the resources neccessary to find the truth. Again, It is very easy to say, "what's a few innocents" but if that innocent was you or your loved one that position would change. Mine however would not.
You'll have to wrestle with the taking of innocent people's lives with your fellow Americans. We abandoned state sanctioned murder decades ago.
But I have a loved one who spent several years in prison so I know what it means to take away a person's liberty. It means locking people up in dangerous, barbaric, degrading shit holes. I don't take it lightly whether a person is innocent or guilty. So if you think I'm blithely saying "what's a few innocents", think again.
Nevertheless, I cannot imagine how you could design a workable justice system that never makes mistakes. The burden of proof would have to be "beyond ALL doubt" for starters. You'd end up making it impossibly hard to secure a conviction and a system so biased in the defendant's favor it would be even less fair than what we've got now.
Originally posted by crazychester
I had a feeling you'd say that. Just wanted to see if you could convince me there was some background info about the woman that wouldn't judge her character. Oh well. So why specifically date rape?
Yeah I'm sure that's true but the fact is the number of rapes reported has increased markedly since rape shield laws were introduced. I saw a doco a few years back about child sex abuse cases. The defense lawyer was merciless in his attempts to trip the child up and shoot holes in their evidence. You've got an 8 year old kid (sobbing) being grilled by a 45 year old guy with questions like "But you just said he put his penis in your mouth now you're saying he made you touch his penis first. You never said that before. Are you telling lies? I think you are!" That's what we do to little kids in an effort to ensure an innocent person isn't convicted and they're granted more protection than rape shield provides. A rape trial isn't a walk in the park for the victim just because the defense can't mention how many men she slept with last month.
You'll have to wrestle with the taking of innocent people's lives with your fellow Americans. We abandoned state sanctioned murder decades ago.
But I have a loved one who spent several years in prison so I know what it means to take away a person's liberty. It means locking people up in dangerous, barbaric, degrading shit holes. I don't take it lightly whether a person is innocent or guilty. So if you think I'm blithely saying "what's a few innocents", think again.
Nevertheless, I cannot imagine how you could design a workable justice system that never makes mistakes. The burden of proof would have to be "beyond ALL doubt" for starters. You'd end up making it impossibly hard to secure a conviction and a system so biased in the defendant's favor it would be even less fair than what we've got now.
Well on the topic of children, I don't think that the Kobe situation and the situation of an 8 year old are the same. The biggest problem being that an 8 year old is legally unable to give consent to sexual behavior. I do know that the point of "Witness badgering" is to make sure that people have not been given stories to tell. I know it looks bad but you'd be surprised at the sheer number of set up there are. For example, 75% of child abuse calls made to family services in New Jersey. USA are found to be false. By your logic, simply because a claim is made and there "seems" to be evidence 75% of the people suspected of child abuse would have their homes wrecked.
As for perfect systems. I know no system in perfect. Again I choose, and the constitution of the US was written to err on the side of innocence in order to protect the innocent from wrongful prosecution. In this particular case the system is possibly failing not neccessarily because rape shiled laws were violated, but because the victim failed to follow proceedure. That is immediately report the rape and get the neccessary evidence collected to avoid contamination. She didn't do this so she partially failed herself.
Originally posted by Sondjata
Well on the topic of children, I don't think that the Kobe situation and the situation of an 8 year old are the same. The biggest problem being that an 8 year old is legally unable to give consent to sexual behavior. I do know that the point of "Witness badgering" is to make sure that people have not been given stories to tell. I know it looks bad but you'd be surprised at the sheer number of set up there are. For example, 75% of child abuse calls made to family services in New Jersey. USA are found to be false. By your logic, simply because a claim is made and there "seems" to be evidence 75% of the people suspected of child abuse would have their homes wrecked.
As for perfect systems. I know no system in perfect. Again I choose, and the constitution of the US was written to err on the side of innocence in order to protect the innocent from wrongful prosecution. In this particular case the system is possibly failing not neccessarily because rape shiled laws were violated, but because the victim failed to follow proceedure. That is immediately report the rape and get the neccessary evidence collected to avoid contamination. She didn't do this so she partially failed herself.
The child being unable to give consent is irrelevant to the point I was making. I understand perfectly why the defense was badgering the witness and why the judge permitted it to go as far as it did. You're the one arguing rape shield favors the accuser and makes it too easy to gain a (possibly wrongful) conviction. My point was that protections given to the accuser do not prevent the defense from rigorously challenging their evidence even when the accuser is a young child. And the defense would be permitted even more leeway against an adult woman accusing a man of rape. At no stage have I suggested that because a claim has been made and there seems to be evidence, the accused's guilt is a foregone conclusion. On the contrary, you seem to be the one saying rape shield rubber stamps a guilty verdict. If 75% of child abuse calls in NJ are found to be false, I'd say the system appears to be doing well at avoiding miscarriages of justice.
The victim failed to follow procedure makes it sound like there's some obligation to report a crime. As far as I know, this isn't the case. The only person disadvantaged by the woman not reporting the rape sooner is herself. Some of her rape shield protections have been reduced to specifically protect the defendant's right to be presumed innocent until proven guilty. I've already said I'm prepared to accept that. Whereas you seem to be saying false accusations of rape are so common, the defendant's right to challenge their accuser should be unlimited even if there is no evidence to indicate their right to be presumed innocent is being denied.
Originally posted by crazychester
The child being unable to give consent is irrelevant to the point I was making. I understand perfectly why the defense was badgering the witness and why the judge permitted it to go as far as it did. You're the one arguing rape shield favors the accuser and makes it too easy to gain a (possibly wrongful) conviction. My point was that protections given to the accuser do not prevent the defense from rigorously challenging their evidence even when the accuser is a young child. And the defense would be permitted even more leeway against an adult woman accusing a man of rape. At no stage have I suggested that because a claim has been made and there seems to be evidence, the accused's guilt is a foregone conclusion. On the contrary, you seem to be the one saying rape shield rubber stamps a guilty verdict. If 75% of child abuse calls in NJ are found to be false, I'd say the system appears to be doing well at avoiding miscarriages of justice.
The victim failed to follow procedure makes it sound like there's some obligation to report a crime. As far as I know, this isn't the case. The only person disadvantaged by the woman not reporting the rape sooner is herself. Some of her rape shield protections have been reduced to specifically protect the defendant's right to be presumed innocent until proven guilty. I've already said I'm prepared to accept that. Whereas you seem to be saying false accusations of rape are so common, the defendant's right to challenge their accuser should be unlimited even if there is no evidence to indicate their right to be presumed innocent is being denied.
You have taken my comments completely wrong. I'll avoid a long response and just give the outine
1) Rape Shield laws that prevent the defense from investigating the accusor for possible motives for lying or whatever are wrong. Protecting the alleged victims identity while allow the assumed innocent persons identity to be known is wrong and is in direct violation of equal protection under the US constitution. Bottom line: both the accused and the accusor should have the same priviledges and rights where a trial is concerned.
2) As far as the system in concerned if a crime is not reported ( by the victim or the police) it has not legally happened. In the case of rape, only the stupid think that not immeditaly getting forensic evidence collected is a "good thing." It damages the alleged victims case.
that's all.
1) Rape Shield laws that prevent the defense from investigating the accusor for possible motives for lying or whatever are wrong. Protecting the alleged victims identity while allow the assumed innocent persons identity to be known is wrong and is in direct violation of equal protection under the US constitution. Bottom line: both the accused and the accusor should have the same priviledges and rights where a trial is concerned.
That is laughable. Sorry, but are you a 1L? Have you taken your con-law classes yet?
While it is true that Rape-Shield can be a painful hinderance for th defense, and it might even seem unfair... it doesn't even come close to a consitutional crisis.
In case you were looking for a refresher, the 14th Amendment says:
"(no state shall) deny to any person within its jurisdiction the equal protection of the laws."
It means that States cannot enforce laws differently for different people. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. It makes it illegal, for example, to say that a certain race is precluded from obtaining driver's licenses because of their race.
The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application.
The rape-shield law only applies to victims. It would only be a violation if the law said that there was only a shield to victims that are white, or that it only applies to elderly victims.
2) As far as the system in concerned if a crime is not reported ( by the victim or the police) it has not legally happened. In the case of rape, only the stupid think that not immeditaly getting forensic evidence collected is a "good thing." It damages the alleged victims case.
Actually, that's also not true. If you run a stoplight and no police officer sees you, you have still violated the law... committed a crime. You won't be prosecuted, but the law doesn't depend on a report to be violated.
Originally posted by OBJRA10
That is laughable. Sorry, but are you a 1L? Have you taken your con-law classes yet?
While it is true that Rape-Shield can be a painful hinderance for th defense, and it might even seem unfair... it doesn't even come close to a consitutional crisis.
In case you were looking for a refresher, the 14th Amendment says:
"(no state shall) deny to any person within its jurisdiction the equal protection of the laws."
It means that States cannot enforce laws differently for different people. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. It makes it illegal, for example, to say that a certain race is precluded from obtaining driver's licenses because of their race.
The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application.
The rape-shield law only applies to victims. It would only be a violation if the law said that there was only a shield to victims that are white, or that it only applies to elderly victims.
Actually, that's also not true. If you run a stoplight and no police officer sees you, you have still violated the law... committed a crime. You won't be prosecuted, but the law doesn't depend on a report to be violated.
Recent IS history shows that even in the case of equal application is moot if the law itself is found to be unconstitutional. For example, it was law in many states that blacks were to be legally separated from whites. This violated the 14th Amendment and such laws, though equally applied, were found to be inherently unequal. This is similar to the upcoming challenges on Gay marriage. the charges are that they are legally enshrined discrimination which would be in violation of the Constitution. The laws specifcally state that marriage is between man and woman yet the challenges are that the laws themselves are discriminatory. What is clear to me is that rape shield laws have not been suffciently or properly challenged ( and I could be wrong) to test thier constitutionality.
Anyway, as you pointed out Rape Shield may result in <b> hinderance"</b> of the defences ability to refute the accusation, a hinderace that would not exist in any other criminal proceeding. I don't see how anyone could say that is not unfair. If one hinders a person then one explicitly gives an edge to another (some may say it levels the field and it may do so in some situations).
Not to take the emotional toll of rape lightly, but cases and public scrutiny like this leave lasting emotional marks for many years. Sometimes even for life. It is important to remember that lives are ruined no matter who is telling the truth.
without prejudice so they could refile charges.