Rape, law, & evidence
August 8, 2008 4:24 PM Subscribe
Rape and the legal system: I am confused about how the crime of rape is typically handled in the criminal justice system. Obviously rape is a horrible crime for the victim (male or female), but superficially, in my mind, it is a virtually unprovable crime because it happens between two adults in private in a manner that cannot easily be distinguished from consensual sex from the vantage point of third parties who are not witnesses.
posted by fucker to Law & Government (15 answers total) 4 users marked this as a favorite
Some possible evidence, for example, might be indications of force on the body (say bruises on the neck or arms), although even this becomes murky with the fact that many people consensually participate in and prefer "rough sex". Another kind of evidence might be unusual circumstances, say a married woman assaulted by a stranger at night in a public park. To a third-party non-witness this would seem suspiciously nonconsensual. But then again 1) many married people have sex with people who are not their spouses, 2) many people often have sex with strangers, and 3) many people often have sex in public places (hell, I've personally had sneaky night sex in the park!).
So one question is are these "suspicious signs" used as "evidence" in court cases, and can they really justifiably be used as "evidence" since they are all based on prejudices or folk or statistical notions about what is "normal" sexual behavior? (how can 'averages' or tendencies establish whether something happened or not anyway. No one is average)
If they are used as "evidence" it seems like laws the prohibit the use of sexual history of the victim may or may not be counter-productive. After all, the "plausibility" that the victim would have sex with strangers in the park, or have bruises from sex can't be weighted until we begin to establish the victim's past sexual behaviors and preferences relating to these kinds of sexuality.
So, from my superficial vantage point, adjudicating rape has a certain tragic insolubility, being largely, necessarily the word of the accuser against the word of the accused.
I do see in some manner how this could apply to other crimes: 'Oh, I have her TV and jewelry... she told me I could take them!'. And perhaps less comparably: 'What, I broke the window to get in?... She told me to do that if I couldn't find my key.'
So my questions are: What kinds of evidence go into court cases concerning rape? Is this evidence more or less objective than evidence used in other crimes, that might not have the same extreme privacy and variability of sexual transactions? And perhaps more chat-filtery, but still important, is the evidence used in deciding rape cases (and perhaps other kinds of crime too) really 'evidence' at all? Can we really establish "beyond a reasonable doubt" that a private transaction was nonconsensual, or is it just a crude matter of fudging our notions of "plausibility" to side with one side or the other based on larger political currents?