tag:blogger.com,1999:blog-4098620.post113310799714744770..comments2024-03-15T04:02:42.341-04:00Comments on CrimLaw: SexLaw - ConsentUnknownnoreply@blogger.comBlogger3125tag:blogger.com,1999:blog-4098620.post-1133271032594459382005-11-29T08:30:00.000-05:002005-11-29T08:30:00.000-05:00From a slightly different perspective, there seems...From a slightly different perspective, there seems to have been a number of high profile rape cases full of problems. The naming of the accused in the media causes them to loose their credibility and hence job. The problem surrounding consentual sex which then turns out to be non-consentual after the incident because one of the parties changes their mind. <BR/>An interesting statistic that has been bounded about was something like 80% of reported rapes accused someone the defendant knows, rather then a stranger. In those circumstances where the 2 people would have known each other for an amount of time, and probably be the only people in the room, how on earth would one really know if consent was given?<BR/>In this case, drunken consent was good enough to be consent. I find that fair. I don't intent to pull out a breathalizer out in a moment of passion, but then I might be more of a gentleman then someone appearing in the docks.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4098620.post-1133148805183129912005-11-27T22:33:00.000-05:002005-11-27T22:33:00.000-05:00Actually, I think the case was about actual consen...Actually, I think the case was about actual consent; hence "drunken consent is still consent."<BR/><BR/>The "honest belief" discussion is merely pointing out what the particular defense the law change was putatively meant to deny. The articles seem to indicate that the government confessed failure to prove lack of consent at close of its case in chief; thus the defendant put on no defense at all.<BR/><BR/>I think what you are describing is the state of the law prior to the change. At that time it appears that the government had to show lack of consent and then the defendant could try to put on an affirmative defense of reasonable belief.<BR/><BR/>It appears that the government no longer has to show lack of consent; it merely has to "prove that there was reasonable room for uncertainty over whether consent was given." That is pretty much the opposite of proof beyond a reasonable doubt; I spend my trial dates trying to convince juries and judges that there is "reasonable room for uncertainty." After the government has cleared that small hurdle, the defendant is now required to prove consent (probably to a preponderance level). Anyway, this case never got that far because the prosecutor seemed to believe that he could not show lack of consent and folded his tent before the defense began its case.Ken Lammershttps://www.blogger.com/profile/15646250142814585354noreply@blogger.comtag:blogger.com,1999:blog-4098620.post-1133138899688534872005-11-27T19:48:00.000-05:002005-11-27T19:48:00.000-05:00The essential element of rape is lack of consent."...The essential element of rape is lack of consent.<BR/><BR/>"The elements of rape . . . consist of engaging in sexual intercourse with the victim, against her will, by force, threat, or intimidation."<BR/><BR/>"[T]he Supreme Court stated as long ago as 1886, "[w]henever there is a carnal connection, and no consent in fact . . . there is evidently, in the wrongful act itself, all the force which the law demands as an element of the crime." <I>Bailey v. Commonwealth</I>, 82 Va. 107, 111 (1886). In other words, "[t]o determine whether the element of force has been proved in the crime [of rape], the inquiry is whether the act or acts were effected with or without the victim's consent." <I>Jones v. Commonwealth</I>, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979). Thus, if the victim did not consent . . . the use of force is shown by the act of non-consensual intercourse itself."<BR/><BR/><I>Gonzalez v. Commonwealth</I>, 611 S.E.2d 616, 45 Va.App. 375 (2005).<BR/><BR/>As I read the passage above all the government need prove is that it is possible that consent was not given ("reasonable room for uncertainty over whether consent was given"). Possible falls far short of proof beyond a reasonable doubt of <B><I>the</I></B> essemtial element of the crime. Upon showing of this possibility the burden then shifts to the defendant to prove he is not guilty because he must disprove an element of the offense which the prosecution never had to prove.<BR/><BR/>This is not an affirmative defense. An affirmative defense would be more along the lines of the prosecution proving every element of its case beyond a reasonable doubt and then the defendant standing before the jury and stating/ "Yes, I had sex with her without consent (she was unconscious), but if I didn't the guy standing in the corner with a pistol to my wife's head was going to kill her, me and the victim" (duress). I imagine the "honest belief" defense worked the same way.<BR/><BR/>Self defense works the same way - "Yes, I hit him (battery), but he hit me first."kenhttps://www.blogger.com/profile/05608941403581158574noreply@blogger.com