Tuesday, May 17, 2011

Shifting the burden of proof for rape cases

An interesting post on the False Rape Society and some citations by feminists. We start with Jessica Valenti (creator of Feministing):

". . . we should look to [Swedish rape laws] as a potential model for our own legislation. [...] "In fact, some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it."
Continue with that:
"What all this means is a shift in the burden of proof to the defense would entail that the defense establish, with a preponderance of the evidence, that it was more likely than not that the woman alleging the rape did give clear indications of freely chosen agreement to engage in the sex acts. Affirmative consent constitutes the kind of consent that would be . . . necessary to overcome the presumptive or implied nonagreement in the law. . . . . What the defense would be required to do would be to introduce adequate evidence to show that the alleged victim did openly and affirmatively express a yes of her own free accord.
And finally:

Criminal law professor and feminist Michele Alexandre wants to junk all of that and severely limit the way consent may be legally manifested. She insists that the contract theory of consent treats women’s bodies as goods and proposes to change criminal law so that all the non-verbal manifestations of assent are invalid to show legal consent. Specifically, “express consent entails verbal or written assent that leaves no doubt as to the victim’s agreement to the sexual interaction. . . .” (The other-worldly reference to "written assent" is a dead giveaway that this professor is operating in a different universe than the typical bedroom where real couples are getting it on.)
She would make the sex act a presumed crime whenever a woman cries rape. The burden would be on the defendant to prove “that express and present consent was explicitly obtained at the time of the actual sexual interaction, not before or after . . . .” Only if the defendant is able to establish “express, present, and uncontroverted consent to the sexual interaction at issue” does the burden shift to the prosecution to prove withdrawal of consent, and “withdrawal of consent can happen at any time during the sexual interaction.”  (The latter point about withdrawal is not objectionable under the contract law theory of consent.)
In practice that would mean guilty until proven innocent and not innocent until proven guilty as it is the norm today.


  1. Given that rape is the subject of false accusations more often than any other crime the burden should be on the accuser, and far more so than in other crimes.

  2. Wanting and having are, hopefully, two very different things here.

    I don't think our system of justice will change anytime soon regardless of what the Swedes do.