Let's first address the problem, with the stats. One quarter of women will be raped at least once in their lifetime. Approximately 10% of men admit to having committed rape in studies when the word "rape" isn't used, but situations that are rape are described and the subjects are asked if they've done them. Yet only the tiniest fraction of them will ever end up in jail. We have a situation where, say, the vast majority of murderers end up in jail, but only a miniscule fraction of rapists. This is clearly a massive problem - people can rape pretty much with impunity. What's wrong here?

The problem: the default legal assumption in rape cases is that consent was given. It's up to the prosecution to prove beyond a reasonable doubt that it wasn't. This is very different from the standard legal assumptions for other crimes. It's not assumed that a murder victim consented to be murdered. It's not assumed that a robbery victim consented to give their wallet over to a stranger. It's not assumed that a identity theft victim consented to have someone else take their identity. In such a case, yes, the prosecution has to prove "beyond a reasonable doubt" that the accused killed the victim, or took the victim's wallet, or took the victim's identity, etc. But if that's proven, it's not up to the prosecution to prove that the victim didn't want it.

But it is that way with rape. The legal assumption is that if any two random people have sex, no matter how implausible, that consent was given to it - and the prosecution has to prove otherwise, beyond a reasonable doubt. And for this reason, rape is exceedingly difficult to prosecute.

To put it another way: If tomorrow you went to the police bleeding and reporting being gang-raped by a group of guys while they choked you and inserted a bottle into your rectum, and it went to court, with all of the forensic evidence matching what you said, they would have to prove beyond a reasonable doubt - typically without any witnesses to the event - that you weren't secretly into autoerotic asphyxiation and anal pentration, had a "wild night", then changed your mind.

Does that sound reasonable to you, that the default legal assumption is that you're into autoerotic asphyxiation group bottle sex with anonymous guys?

Now, there are many different legal standards used for different things in the judicial system. To name some: reasonable suspicion, reason to believe, probable cause, credible evidence, substantial evidence, preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt, and beyond a shadow of a doubt.

In criminal cases, the facts of the case must be established beyond a reasonable doubt. But the defense's arguments for why the facts are what they are do not, and typically involve shifts in the burden of proof. You can't use an insanity defense by saying "I'm insane" and require the state to prove beyond a reasonable doubt that you're not - a preponderance of evidence burden falls on you to show that you are. You can't use a self defense argument and require the state to prove that it wasn't self-defense - you have to present evidence to show that it was, and have it be more convincing than the state's arguments that it wasn't. "She consented" should in no way be treated any differently than other defense arguments. The preponderance of evidence standard should require the defense to argue and present evidence that there was consent given, and have it be more convincing than the state's argument that it wasn't. If the defense wants to argue that the plaintiff was into anonymous gay S&M bottle sex, the state shouldn't be required to find evidence to prove that you weren't "beyond a reasonable doubt", any more than if a random, seemingly rational person saying "it was self defense" should be able to get off easy for whatever crime they want unless the state can prove beyond a reasonable doubt that it wasn't. "Hey, that mob of elementary school kids was pretty scary in the dark! I thought they had guns. Prove that I didn't!"

If I was a stranger reached into your wallet and took out $400 when nobody was looking and bought myself some new rims, and you got me charged with theft, and the prosecution proved beyond a reasonable doubt that it was your money, that I took it, and that I used it to buy new rims, and I argued in court, "Hey, he was feeling bad about me not having new rims, was feeling charitable, and gave me the money to buy rims," this is something that would be extremely hard to be proved beyond a reasonable doubt. But I would typically be convicted nonetheless, because my defense argument - that you consented to give me the money - would not be evaluated on a reasonable doubt standard, but a preponderance of evidence standard.

It is a great legal system flaw that in most jurisdictions - not all, but most - the same standard for evaluating consent is not applied in rape cases.

The shifting of the twin burdens of production and proof is indeed widespread in defense arguments. In "Addressing Rape Reform in Law and Practice", Susan Caringella, Professor of Criminal Justice at WMU and founding chairperson of the Division on Critical Criminology of the American Society of Criminology, writes:



It is noteworthy that this is not an unusual feature in criminal case processing. Berliner reports precident for shifting the burden of proof in rape statue in her comments about Washington's rape law. Here the burden is placed on the defense if/when attempts are made to argue consent (1991:2693 n. 43). In addition to shifting the burden of proof, as Kadish and Schulhofer point out, "in some instances state law may require the defense to bear both burdens" of production and proof (2001:45). Tchen (1983) describes a similar requirement in court decisions. The Supreme Court in Illinois upheld a statute that required "the defendant to prove the existence of the exculpating factor beyond a reasonable doubt" (1552, citing People v. Smith 71 Ill. 2nd 95, 105, 374 N.E. 2nd 472, 476 [1978}, n. 195). Tschen cites other examples of the legality of shifting the burden to the defense. She notes, for instance, that "a common law affirmative defense has existed in Michigan for nearly ten years" (1552). Other examples of shifting the burden of proof are easily found. One is seen with self-defense. Here the defense has the burden to prove that force was necessary for protection against imminent harm (Black 1991: 947). Another example is found when the defense wants to argue discriminatory prosecution, where the burden of proof shifts to the defense to show that harm resulted from the selective prosecution of a criminal statute not typically enforced. In a similar vein, if the defense wants to argue that the defendant's right to a speedy trial was violated, the burden of proof once again shifts to the defense to show prejudice was caused because of this violation. "Defendant bears the burden of showing prejudice. The moving party has the burden of proof" (Michigan Judicial Institute 2001: 109; also see Michigan Judicial Institute 2002: 287). The defense is the moving party in counsel substitution or withdrawal and so bears the burde of proof in Michigan (Michigan Judicial Institute 2001:104). The list could go on; the point is there is precedence for shifting the burden of proof.

The book is an excellent read on all aspects of current and proposed law on sexual assault, on maintaining the balance between protecting the innocent and the prosecution of the guilty, and so forth. I strongly recommend at least browsing it at the link above. Indeed, as Caringella points out, juries already have an established and well-documented record of tending to disbelieve claimants on rape cases as it is. Applying an unreasonable and legally-inconsistant standard which makes it so that even in wildly implausible sexual situations the assumption should still be that consent was given, is a core fault of rape law in many jurisdictions.

In short, I strongly agree with the following principles:

* There is a massive problem with sexual assault with impunity in most of the world that has gone largely unaddressed.

* There is a massive problem currently in terms of prosecution of rape versus prosecution of other crimes, with the balance on the scales of justice far too far in favor of underprosecution than overprosecution. This should be remedied.

* There is already a well-documented balance in favor of believing the arguments of defendants in rape cases, regardless of the legal standard applied for evaluating their claims.

* The problem of underprosecution stems from the misapplication of a standard used for establishing the facts of a case to what should be treated as a defense argument ("she consented").

* "Beyond a reasonable doubt" is seldom applied to defense arguments unrelated to basic facts of the case - aka, "I'm insane", "It was self defense", etc. The defense typically bears the burden to prove their arguments for why the established facts are as they are, with a "preponderance of evidence" standard.

To put it plainly: such a reform is clearly needed, remedies an easily documented inbalance in the scales of justice between prosecution and defense rather than creating one, and leads to consistency between claims of consent between crimes.

I hope that this post will spur healthy debate on the topic.

