Indeed Playfull - That is the sound of a large can of wriggly worms… And ‘no’ I don’t think I could be impartial… I’ve read too much…

Swann is right of course – trial by jury is the worst method - apart from all the others. However; there are always ways inequalities in the system can be addressed.

For instance – changing the way in which certain cases can be presented – i.e. if the defendant’s previous sexual history cannot be examined; then neither should the (alleged) victims… ‘She was a slag and was asking for it your honour’ is all too well used – however politely it’s dressed up.


Sexual Offenders:
I’m digging back in my mind now – but some years ago I read an article (or it could have been a paper) on sex crimes. It explained how there is usually an escalation involved - that in a large proportion of the cases of ‘sexually motivated’ murders – the men convicted often had a ‘history’ of sexually motivated crimes that would ‘escalate’.

The bit I recall the most – was that often in their ‘history’, they had a number of offences for which they were accused and either never charged or were acquitted.

Taking these into consideration and later ‘confessions’ the authors hypothesised that – on the balance of probabilities (rather than proof beyond reasonable doubt) - there was high likelihood that they had also committed these crimes… Some calculations were involved to come up with a guestimate of the number of cases that were likely ‘falsely’ acquitted. It was a high percentage – I’d like to quote it but as I can’t remember it – I can’t (Damn it!)

Adman’s Case:
The above being the case - I'm curious about how Adman came to the conclusion that theses two ‘alleged’ rape cases were in actuality how they were explained above? Did these women ‘admit’ afterwards that these rather contrived explanations were what had really happened? Or was that what conclusion the jury came to because the case for the defence put it that way?

I only ask because the 'morning after shame' defence to which you purport one of those cases is the most classically used defence of all!

I agree that ‘lying’ as a behaviour - for whatever benefit - is not at all gender biased… So just talking statistically… (i.e. not counting for the fact that the police only prosecute those cases which they consider strong enough – which should have already rooted out some of the weaker cases… and not counting for those who plead ‘Guilty’); Considering that SOMEONE must have been lying - wouldn’t the figures logically then be 50%, rather than 6%?

And the 35 cases of victim attrition are explained - in my experience - by the rules of evidence in which the defendant has an advantage over the victim. Under U.S. rules of evidence, the victim's sexual history can be deemed as relevant to demonstrate that the victim acted in accordance with certain past practices or habits (she always took them to the bedroom, she always had two glasses of bourbon, etc.).

Pattern and practice evidence is for most jurors a smoking gun. She did it before, she did it here. Period. That's why in most criminal trials, it's hard to get it in. If we put someone on trial for shoplifting, it is very hard to get pattern and practice evidence (like the evidence above is called) in front of a jury. That's because we want to make sure that people aren't using the lazy reasoning - he did it before, he'll do it again. We want the system - in order to be fair - to prove that they guy shoplifted THIS time - the time he is on trial for.

But the victim in the rape trial doesn't have this same protection against pattern and practice evidence. When he or she is on the stand, the victim has to let her past sexual history wash over the jurors. And the jurors can use the age old reasoning under the pattern and practice rule - well, she had a drink when she screwed Morris, so if she had a drink here, she probably screwed the defendant willingly here.

Besides being damning and humiliating for the victim, it protects the defendant too much and is unlikely to produce useful information for the jury. I think it would be better -and I think the 35 victims who sod off would be more likely to testify - if there was no pattern and practice evidence that could be used against the victim.

That is of course not to say that the accused rapist shouldn't have a defense, he should, but it should be very difficult for the defense to make the victim's sexual history that defense.

Abuse crimes are historically underreported according to experts. If we want that to change, then we should change the rules of evidence so that those 35 aren't scared away.

A little preaching from your former courtroom dynamo,

Swann

quote:

Originally posted by MsMinxy:
Swann is right of course – . . . Considering that SOMEONE must have been lying - wouldn’t the figures logically then be 50%, rather than 6%?

Hello my Minxy. Your e-mail makes a good point but it is that phrase Swann is right of course that I will be staring at for a while. Yippee!

Swann

Interesting how you talk about 'victim' and 'defendant', is this pre-determined then, in American law?

quote:

I'm curious about how Adman came to the conclusion that theses two ‘alleged’ rape cases were in actuality how they were explained above?

Neither went to court, although the investigations took many weeks on the former and about two weeks on the latter.

In the 'gang set-up' case, somebody within the gang informed on those that were setting up the alleged rapist (rats often bite each other). When the gang-members were arrested a search of their property revealed photographs of the complainant that they all supposedly had never met and did not know, plus records of payments to her. One of the gang then admitted it was a set-up.

In the other case, during routine police enquiries in the first ten days or so, the investigating officer couldn't understand how the man knew so much of the woman's life when she alleged that she barely knew him. She then broke down and admitted to having known him for a while before having a fully concensual one-night-stand with him.

quote:

Originally posted by shyboy:
Swann

Interesting how you talk about 'victim' and 'defendant', is this pre-determined then, in American law?

Come on Shyboy, you usually don't take such cheap shots! Defendant is the proper term, because whether you are guilty or not, you are a defendant when you are charged with a crime. Victim - you're right, I probably should have said 'alleged victim' or even more vaguely 'witness' but since I was making a point with some subtlety, I wanted to keep the players clear.

Claimant (formerly plaintiff)

Sorry lovely Swann, it was only tongue-in-cheek, you know from a previous thread that I love you lot, lots and lots x

You are sweet! Thanks! I love you back!

quote:

So just talking statistically… (i.e. not counting for the fact that the police only prosecute those cases which they consider strong enough – which should have already rooted out some of the weaker cases… and not counting for those who plead ‘Guilty’); Considering that SOMEONE must have been lying - wouldn’t the figures logically then be 50%, rather than 6%?

The 50% argument is interesting.

50% of the successful prosecutions are on a guilty plea. So of all the men found guilty, 50% admit it, 50% don't.

Of the 15 cases that go to court of every 100 initially reported, 9 are found Not Guilty and 6 Guilty. With only a swing of 1 case, it would be 8 and 7, which would be near enough 50%. Yeah, I know that's a swing from 66%/34% to 54%/46%, and that on a larger scale we're talking about a lot of cases - but it's not such as swing as 6% to 50%!

Because surely you can't say that of 100 cases reported 50 are surely guilty, rather than 6, just because 'someone must be lying and there are two of them'? Even by current police statistics, 45% of the reports are in themselves either totally false or lacking even enough basic credibility to investigate beyond the mere first-interview stage. And, believe me, the police try really damn hard to establish credibility for a rape case - most of the time it's a WPC either heading or investigating anyway!

I agree with everyone; the system is horribly flawed. But (to take Swann's point) the defendant, who is already in the dock and therefore quite possibly tainted in the minds of some jurors - see Playfull's comments - may only, legitimately, have the complainant's true sexual proclivity to use as a defence!

The pattern-and-practise evidence is much discussed during the 2 years of police training, and never more deeply than in sexual offences. The problem is that in criminal cases in this country, it's up to the prosecution to prove someone did something - but in most defended rape cases there's no question of what was done, because nobody denies the act!

The question therefore HAS to revert to the likelihood or not of the complainant either having misled the defendant about, not been clear about or - frankly - lying about consent before and during the act! You're right - the complainants' honesty, character and background is what the jury are being asked to consider - not that of the defendant; effectively, who do you believe about the basis of the sexual act?

And no - before anyone suggests that this justifies bringing up the defendant's 'previous form', that's just not feasible either; the complainant isn't in danger of going to prison for life TODAY because the Jury becomes convinced 'she's possibly done this sort of thing before' but the defendant IS in that danger TODAY.

And before anyone has a go - I agree it's all horrendous for the complainant who is a genuine victim, and I can't think of a better system either!

quote:

Originally posted by Adman 1961:
[QUOTE]

The question therefore HAS to revert to the likelihood or not of the complainant either having misled the defendant about, not been clear about or - frankly - lying about consent before and during the act! You're right - the complainants' honesty, character and background is what the jury are being asked to consider - not that of the defendant; effectively, who do you believe about the basis of the sexual act?

!

Have you seen Mamet's play Oleanna? Maybe it's not as easy as whether or not the complainant misled the defendant about her intentions. Maybe people can genuinely fail to communicate things like consent (or lack thereof) without intending to mislead. Sometimes no doesn't mean no. Two rational, sober people can have very different takes on the same interaction. It's disquieting but true.

Also, while I think Adman's response is largely very smart, I can't help but quibble with the idea that all rape cases are fine line questions of consent. While Adman has more experience than me in this area, the rapes I have known about first hand were just brutal force.

Wow, all this cheery talk. Can we go back to talking about the ethics of adventure sport now?

Your friendly neighbourhood

SWANN

Harriet - I'll see you in hell.

quote:

Also, while I think Adman's response is largely very smart, I can't help but quibble with the idea that all rape cases are fine line questions of consent. While Adman has more experience than me in this area, the rapes I have known about first hand were just brutal force.

Wow, all this cheery talk. Can we go back to talking about the ethics of adventure sport now?

Swanny - I agree, let's go back and talk abouit more cheery things - but can I just add one, brief addendum

I wasn't actually trying to be smart; merely indicate that it's never as cut-and-dried as it can sometimes appear. Yes, some rapes are brutal, horrendous acts of physical terror against another person who clearly does not consent - where the actual sexual nature of the act is almost irrelevant and actus reus - 'the guilty act' is almost without defence. These incontrovertibly guilty ones, with multiple witnesses and even a Guilty plea? Maim them, that's my opinion, medically and under anaesthetic, so that they can never, ever harm anyone again. And still throw away the key.

But there are many, many others where mens rea - 'the guilty knowledge' is harder to prove. It's like the civil law of trespass; to be found guilty of trespassing you not only have to be proved to have been on someone's land or property, but THEY have to prove you must have KNOWN you were on someone else's property. It's not just the act; but the circumstances of the act and your knowledge of it as being an undoubtedly illegal act - and if that's difficult to prove in rape (as it is) then some defendants will walk when they are guilty.

I truly hate myself for saying this - but I think that if the price of a guilty defendant walking smugly away from court is that an innocent one also walks away, then it must be so; for the guilty one will probably 'get his just deserts' from society in some way at some time - but the innocent one can never, ever be recompensed for the social, emotional and psychological outcome.

Okay - anyone think England have a chance against Poland, then?!

based on the Austria performance, not really. would be nice though, we can but dream.

My local radio station rang the Polish Football Association this morning posing as a UK bookmaker and asked them if they'd throw the game! I don't normally approve of that sort of stupid call, but wow, it was a scream!

Jury service only once
and again one case.
Had to decide who was telling the truth:
Ms A
or
Mr B.
We found him not guilty since neither was a credible witness.
To find any one guilty it has to be
beyond reasonable doubt.
We couldn't, so we didn't!

If you put your life under a microscope Lewes do you think you'd sound credible? If you were playing devils advocate and wanted to call into question the value of your evidence - do you think you could?

I don't think I'd stand a hope in hell, considering my history of a non-hetro sexuality and hanging out with musicians - I could easily be painted as some skanky groupie...

That's why – should I find myself in that terrible position - I wouldn't go to court... I think it's much easier to reek revenge and then – should you get prosecuted - hang your head and look sorry; plead temporary insanity... whatever...

I have little doubt that it would be easier to assassinate his credibility and be acquitted of ABH/GBH than to prosecute for a sexual attack… plus it might stop him doing it again – as ‘getting away with it’ could never become part of the thrill.

quote:

Originally posted by Adman 1961:

Okay - anyone think England have a chance against Poland, then?!

2-0 to England

MsMinxy, I hope I did not sound glib.

The case wasn't one of sexual assault, thankfully. I think I would have asked to be excused.

If I remember: there were questions such as
What do you live on Ms A
Ms A: Money from friends (don't want to give names)
Mr B: She lives on the ten grand I gave her to look after.
Who owns the property in flat:
Ms A: Kind friends give me things (same anonymous friends)
Mr B I do, I got it off guys I know, can't remember names too well.
Who owns the flat?
Ms A:A kind friend lets me live there
Mr B: I pay a low life who scams flats of the council.
Did Mr B threaten to kill Ms A?
Did he really mean it?
Did Ms A believe it?
Was Ms A put in fear of her life?
These were people whose mood of life was totally alien to one's own.
How could we decide who was telling the truth?

Ah I see... Those strange alien sub-humans that the courts are full of.

These days I find I need an interpreter listening to the MTV news - I don't think I'd be any good in such cases either!

Ms Minxy

I think all of us on here have come to realise what an honest, intelligent and strong-minded woman you are. Of course our opinions differ, that's great debate, but what saddens me (in your post above 19:35) is the indication that you feel impotent to achieve justice, in a British Court of Law. I've gotta say that really shocks me and is clearly unacceptable in 2005. I don't know the answer... but there must be one, and it must be found.

what the hell have all these essays got to do with "Touching the Void" ?? they belittle it

That Moonbird is the funniest post i have seen for ages.


What an example that comedy is all about context!

I get your drift playfull but I am still quizzical

quote:

Originally posted by MsMinxy:

That's why – should I find myself in that terrible position - I wouldn't go to court... I think it's much easier to reek revenge and then – should you get prosecuted - hang your head and look sorry; plead temporary insanity... whatever...

Sometimes, Lewes, it is easier to ask forgiveness than permission. I guess that it isn't that shocking to me that people intent on self-preservation who are smart but who have been alienated by the system would not choose to trust that system. I agree that it's not the best possible situation. But isn't Minxy just being realistic? I mean, the government has a lot of power over people - it can section, imprison, spy, sit in judgment. I think a crucual component of this culture is that there seems to be a fundamental consensus of what is appropriate behaviour. If you transgress these social mores, the state is quick to take away your privileges as a citizen - freedon, insurance, driving (a few I have lost or had to live without). Minxy and I could be brave and go to court but for all the good it would do it would be like we were speaking Cantonese.

I agree it's sad.