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How Rape Laws Remove the Presumption of Innocence

August 10, 2012

Stop Abusive and Violent Environments
August 9, 2012

Over the last 40 years, rape laws have undergone a fundamental transformation. In some ways, these changes have removed barriers to rape victims receiving a fair trial and have helped bring many rapists to justice. But in other ways the reforms have gone too far, upending traditional tenets of criminal procedure and removing due process protections for the accused.

The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual.”

As a result, false allegations have increased, thus diluting the availability of services and protections for victims, and eventually diminishing the credibility of victims’ claims.

These are the ways that due process protections and related practices have been weakened or removed:*

1. Definition of Rape. In the past, the definition of rape included the forcible genital penetration of a person without her (or his) consent. Now, some groups define rape in terms of genital penetration in which either person has consumed any alcohol or drugs, thus rendering the person unable to give consent.”

2. Statute of Limitations: For most felonies such as rape, the statute of limitations is five years. But as of 2004, only three states required prompt reporting of the allegation, and several states have abolished the statute of limitations for rape cases altogether.

3. Adjudicating Rape Allegations under Civil Law. In the past, allegations of rape were adjudicated under criminal law. Now the Department of Education mandates that sexual assault allegations against university students be processed by college disciplinary committees.

4. Courtroom Terminology: During courtroom trials, it is not uncommon for the complainant to be referred to as the “victim,” even though that fact has not been established.

5. Shielding the Identify of the Accuser: Our system of justice requires that the court process be open to the public, and the First Amendment allows the press to report the names of parties to a case. But many states now have statutes that specifically prohibit the identification of a woman alleging rape.

6. Right to Confront One’s Accuser: In the past, defense attorneys were allowed to ask detailed, often intrusive questions about the accuser’s prior sexual history. Now under Federal Rules of Evidence 412, such questions generally may not be posed.
7. Guilty Mind (“mens rea”): Criminal law has long held that if a man believed in good faith that the woman was consenting to intercourse, then he could not be found to have committed rape. Now, that requirement has been largely removed.

8. Affirmative Consent: In the past, a man could reasonably infer that a woman was consenting to intercourse based on her behavior. Now, the woman must give affirmative permission through “words or overt actions” – although there is a lack of consensus regarding which specific overt actions constitute consent.

9. Corroborating Evidence: The 1962 Model Penal Code stated there should be no conviction for sexual offenses “upon the uncorroborated testimony of the alleged victim.” Now the situation has been completely reversed, and not a single state generally requires an alleged victim of rape to provide corroborating evidence.

10. Reasonable Resistance: In 1951 the Oregon Supreme Court ruled, “The woman must resist by more than mere words. Her resistance must be reasonable proportionate to her strength and her opportunities.” Now, only half of all states require there to have been physical resistance.

11. Admission of Evidence of Prior Sexual Assaults: A basic tenet of our criminal justice system is that jurors generally are not informed of any prior criminal record of the defendant in order to preclude bias. But under Federal Rule of Evidence 413, in a “criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible.” Note that the rule allows admission not only of prior convictions, but of any evidence including arrests or mere allegations. Evidence of the complainant’s prior false allegations may not be introduced as evidence, however.

12. Rape Trauma Syndrome: In some states, the prosecutor may have an expert witness testify that the alleged victim is suffering from “rape trauma syndrome” — even though the validity of the syndrome has been questioned and the expert witness may have never spoken with the alleged victim to evaluate her mental state.

13. Civil Commitment of Offender After Penal Release: In the past, society believed that once a man served his sentence and paid his debt to society, he should be allowed to re-integrate into the community and pursue a reasonably normal existence. But as of 2007, 19 states passed civil detention statutes for sexual offenders that may have the effect of keeping a man in prison-like conditions for the rest of his life.

* Unless otherwise noted, the source of this information is a law review by Richard Klein: An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fairness. 41 Akron Law Review 981 (2008).

** For example, see Department of Education Office for Civil Rights. Dear Colleague Letter dated April 4, 2011.




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9 Responses to How Rape Laws Remove the Presumption of Innocence

  1. Danny on March 26, 2013 at 10:05 AM

    Many people have mental issues that encourage them to do and say things for pity and sympathy. I married a woman who related to me during our short courtship the many instances of abuse she was subjected to by her physician husband. Amoung the many emotionally and physically brutal things he did to her was to force her to have sex with another physician whom he hoped to be brought into practice with; constant infidelities that were thrown in her face; insisting on abortions when she became pregnant; allowing her to be gang raped for his pleasure…. She was very convincing in her portrayal of the abusive marriage she finally escaped. Unfortunately, all of this was made up. Her husband was in fact a victim to her delusional mind as I turned out to be. He is and was, by all accounts, a nice, normal guy. I was subjected to the most irrational jealousy induced rages over non-existent allegations of marital misconduct she attributed to me. In the course of 3 years she had 6 miscarried pregnancies which were attributed (by her) to God’s punishment for the things her ex forced her to do. In fact, all of her allegations against her first husband turned out to be false. The reality of the situation was that it was she and not her husband who was a serial cheat during their marriage. None of her allegations of abuse were true as were none of the miscarriages she claimed. They turned out to be abortions. The hysteria she displayed to me and her family after each faux miscarriage was so convincing that we spent thousands of dollars with specialists to find out what the medical problem was. It wasn’t until I insisted on going to the ER after the last such miscarriage and we were referred to another specialist for a D and C that the truth came out. After the procedure, the doctor disclosed to her that he was on to her game. After a few more years of trying to figure out how to help her with the mental problems she refused to acknowledge, we finally divorced. I can only imagine the stories she is telling her latest victim about me! People lie and that includes women who lie about sexual assault and rape. The founding fathers knew allegations are not facts and built in protections against people being caught up in the hysteria of the day. Let’s not lose those protections.

  2. k.w on August 29, 2012 at 6:36 AM

    i recently turned down an offer for a one hour personal training session by a female at my gym. i had one session with her and felt uncomfortable. something just didn’t feel right because she would offer me sessions that i would turn down. i agreed to have a session with her, on the day of i thanked her but cancelled, i haven’t heard from her since, absolutely no reply. a guy i know couldn’t understand why i cancelled. i know all this girl has to do is say i touched her or made her feel uncomfortable in some way and that would be it for me. all women are not this way but men have to be careful.

  3. Shirley Kelley on August 28, 2012 at 11:07 AM

    My son was falsely accused and wrongly convicted. He has been in prison for 4 years. All a girl has to do is say that someone touched her, and the man is gone. The mother of his children, who was gone for 4 years, decided she wanted them back for the welfare she could get from them, and she got her teenaged daughter to lie, and with the help from her detective friend,within 3 days they got a sealed indictment, threw him in jail on a million dollar bond,
    then took her for a rape test, and found that her hymen was intact, with no rips no tears and no notches. Yet he was charged with 58 counts and after 2 years of coaching, she told the most incredible lies in court, and they even paid his attorney off, and he did not help him at all. She jumped the justice system, and he is innocent, and trying to appeal his case…with the vindictive prosecutor trying to stop him at every step. This goes on all the time. When are they going to stop letting women lie on men, and the women are free to do what they want, and the men are locked up like a caged animal, in this case his sentence was 39 years. He lost his first appeal, because of attorney error. They came in my house without knocking, and took the children and gave them straight to her…and he has not seen them for 6 years. He was the best father and they loved him dearly. She was a stripper, a prostitute, and was on probation for 6 years for selling cocaine. This did not matter. He had a beautiful home for them….she lives in a run down shack with her boyfriend. This woman made all of the accusations, and they hid the police report, and we have never been able to find it. The police erased 247 files from the computer, and added almost as many. They added 25 pictures to it the day of the trial, which made it 58 counts instead of the 33 at first. This is overkill. The pictures they added had no times or dates. We had proof that he was not even there when the other pictures were taken…and the atty did not show any of his evidence. All of the lies they told…we had proof to back them up, that they were lies, and he never used any of it. My son could not testify…he would not let him…and he would not let me be in the courtroom. He would not call any of his witnesses…only 4 out of 25, and there was no evidence of any kind…she got to say everything…and he got to say nothing. They got by with perjury, and they tampered with evidence..and he never had any police record, but the prosecutor told the jury he had a history of domestic violence..and the judge did not know that he did not have a police record, until after he sentenced him. They drug the transcripts out for 18 months, and they erased parts from them, such as when they had a nurse practitioner get up there and say that a 5 year old girl could accomodate a coke bottle and her hymen would still be intact. They said a woman could have a baby and still have her hymen. This is a nightmare. My son has never drank any liquor, smoked any cigarettes, and he has never done any drugs in his life. He is a Christian, and a good person. Those children need their dad. These women have to be stopped. Too many mens lives have been ruined by lies. Too many children are being kept from their fathers, and are living in poverty. This woman don’t work…she is living off the childrens welfare. My son owned his own business and paid for everything for them. He even took care of her daughter, that she also left for 4 years, like she was his own. Then she got her to stab him in the back, to get rid of him, so she could get them back. This happened in Rutherford County Tennessee, and it has the most corrupted police system in the state, and the most corrupted Justice system…there is NO JUSTICE. The girl went straight to live with her mom and was meeting boys on the internet and she was sleeping with them when she was 16…and got pregnant by one. She could not do that at my sons house. They made all of his charges aggravated also. They were at my house every day. She was never abused. His son took up for him the night they took them away, and he was interviewed. After 2 years of coaching he lied on his dad….then cried and cried. He will never be right over this. His little girl would not lie. This is a nightmare that has cost me thousands of dollars and it is not over, yet. Our lives have all been ruined.

  4. Richard on August 26, 2012 at 7:05 AM

    There seems to be a witch hunt mentality when it comes to rape. Which I believe in part influences a very toxic idea which I hear being discussed more often than I’d like. The idea that rape conviction rates are not as high as they ought to be. So the solution is to make conviction easier. Which is disgusting it isn’t justice it is someones sick attempt to skew the numbers of those convicted.

  5. Ray on August 12, 2012 at 5:38 PM

    Rape witch-hunting and domestic violence witch-hunting are major staples in the overall witch-hunting of males (War on Males), that’s being waged by gender feminists – as shown in “Witch-Hunting Males” at Youtube.

  6. calltojustice on August 12, 2012 at 12:23 AM

    Check the link. It is outrageous how they twist the truth, totally disregard common sense and list every indicative of a false accusation as reasons for police “erroneously” dismissing cases of sexual assault.

  7. Doc Savage on August 11, 2012 at 10:51 PM

    this just proves my point that women have rights without responsibilty and men have responsibilities without rights.

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