An ehtical issue: Rape
Posted in the Atheism Forum
#1 Aug 30, 2012
http://www.economist.com/node/21561883... |hig|8-30-2012|3296333|3939297 0|UK
President of the USA, Mr Obama, says "rape is rape".
Can one rape one's wife/husband?
Must you wake your partner before starting any sexual intercourse?
Should you get her to say "There's a moose loose aboot the hoose' or some other saying to ensure you have 'proof of consciousness'?
And other questions..
#3 Aug 30, 2012
Thanks for your replies Burnt Offerings.
Proof of force (assault) was necessary for a partner to prove they had been raped inside a marriage, prior to 1982 (in the UK. I am unsure about the USA).
Since then, courts can determine whether rape has occurred based (essentially) on who is most believable, the defendant or the plaintiff. And this article suggests that the law can be applied retrospectively in some territories. From:
Prosecutors claimed the Ferryden Park man raped his wife in 1963. He argued he was immune from charges as common law held sex was a matrimonial right. In 2010, the District Court postponed the man's trial pending his High Court challenge....
Law Society SA president-elect John White said the case, which has attracted keen interest from the state's legal community, reinforced modern standards. "There have been rape in marriage cases and quite clearly the modern view, which everyone would share, is rape is rape, whether it's in marriage or not," he said. Unquote.
Of course there are no witnesses or evidence regarding rape in marriage, so it is only balance of probability or likelihood that juries can judge. Men commit far more serious crime (especially rapes) than women and everyone wants to protect married women and their rights. However, if a woman were to try to hit back at her husband by accusing him of rape there might be occasions when the husband is innocent and can provide no proof to that effect.
If someone can be convicted of rape in marriage on the simple balance of probability that he is guilty, why not apply that standard in other cases? This may be happening and rape in marriage seems to be the precedent for it. Arguably, a dangerous development.
I am not suggesting that rape in marriage should be legal. I am simply pointing out that it is not a simple matter of 'rape is rape'.'Murder is murder' but perhaps one still needs to prove murder beyond the 'balance of probability' that is all that seems to be necessary for a successful prosecution of marital rape.
As far as retrospective legislation is concerned - every case of retrospective case proves that one is not safe from prosecution merely by staying within the law.
This is on the Atheism forum because there are no humanism or ethics forums on Topix, so many of us feel it is permissible to introduce humanist or ethical Topix here, where religionists are uncommon and atheists are many. I am interested in a strictly rationalist view of this issue.
#6 Aug 30, 2012
It isn't a matter of being found guilty on a 'balance of probability'. The standard in criminal prosecution is proof beyond a reasonable doubt. The burden of proof is always upon the prosecution, and all presumptions are in favor of innocence. This does not mean that it is impossible for the prosecution to get a conviction where the case is one person's word against the other. It does mean that to convict, the jury would need to find the defendant's version, if he chose to testify, completely not credible. Of course, here in the US, a defendant has an absolute right to remain silent, and not to have his silence used against him in any way. Even in cases where the defendant elects not to testify, befoe he can be convicted, the jury must be persuaded by the government's evidence beyond a reasonable doubt.
For this reason, prosecutors rarely bring cases where there is no corroborating evidence to bolster the testimony of the alleged victim. Rape cases in general have lower conviction rates compared to other criminal cases, with the exception of drunk driving cases, where juries are notorious for saying , "there but for the grace of god go I". Rape cases where the parties know each other ("date rape") have abysmal conviction rates. Prosecutors know this all to well. I don't think I'v ever met a prosecutor who was such a zealot, or who had so few cases that he/she would push a case like this to trial without considerable proof beyond the victim's testimony.
#7 Aug 31, 2012
Reject a 'balance of probability' if the term is objectionable. The point is that surely there is no physical evidence of marital rape (and some others types) that can be produced to prove the case?
Anyone know how common are prosecutions for m-rape there have been and what percentage are successful?
Today, there are three recognized forms of marital rape: battering rape, force-only rape, and obsessive rape. Unquote.
It seems quite a difficult area of crime to legislate for or to enforce.
#9 Sep 8, 2012
It is much more than a matter of semantics. Requiring proof beyond a reasonable doubt is a powerful protection against the kind of wrongful convictions you are envisioning.
In the absence of physical evidence, in cases of "she said, he said", the requirement of proof beyond a reasonable doubt means that to get a conviction, it is not enough for the jury to find the complainant more credible than the defendant. The complainant's testimony must be so convincing that the jury completely rejects the defendant's testimony as completely not credible.
If, after all the evidence is in, the jury is left in the position where, while they believe the complainant more than the defendant, yet cannot say they are convinced to a moral certainty that the defendant's testimony is false, that's a reasonable doubt.
For that very reason. the vast majority of prosecutors won't take on such a case without corroborating evidence, either physical or circumstantial. For that matter, I don't accept your premise that there is never physical evidence in marital rape cases. If sex is non consensual and is accomplished by force, a wife is as likely to be bruised to otherwise injured as any other woman to whom the same force is applied. For that matter, injuries to the perpratrator, like fingernail scratches are not uncommon. If there is resistance, there is often physical evidence of the resistance.
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