On Feb 3, 8:12 am, b...@nyx.net (Barry Gold) wrote:
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >fill in the gap where
> >"everybody knows" what "really" is happening, but where the frail
> >tools of the law (evidence, proof) may otherwise be lacking, allowing
> >some clever crooks to "slip thru the cracks" because what they did
> >wrong was too subtle to pin down.
>
> I missed that sentence when I was commenting earlier. What a
> dangerous concept -- that the law should somehow be able to "get"
> people even though the evidence and proof may be lacking, because "what
> they did wrong was too subtle to pin down".
Sorry, Barry, I think we just have a misunderstanding. I'm not suggesting that, and while I am also not contemplating that you are setting this up as a "straw man" argument so you can knock it down easily, I think you know from our years of mutual participation in this NG that I am more reasonable than that.
In a nutshell all I am saying is that presumptions have a useful and valid role in the law, and their purpose indeed is to fill in gaps in proof where it would otherwise be lacking, but where based on decades or centuries of worldy experience and common sense, we know that a certain combination of facts is enough to infer more likely than not that a certain other, needed-to-be-proven fact exists. And just to be extra clear, I am talking mainly about rebuttable presumptions -- those which substitute for missing evidence, but which the jury may or may not accept depending on what other evidence the opponent comes up with that tends to reduce the likelihood that the pertinent missing fact exists; and also we are only talking about presumptions that, AFTER they are created by statute or a judicial ruling, become the law, presumably known to all and providing a guide to behavior, for acts that occur AFTER that point.
> Again, why apply this only to sex?
We do not. Just to give a few other examples:
Res ipsa loquitur. When an accident happens involving some instrumentality that is completely within the defendant's control, and something happens to it that normally does not happen except in the absence of negligence, and there is no other plausible explanation offered, the jury is free to infer from the happening of the accident that it was due to the defendant's negligence. This presumption is an exception to the usual rule that negligence cannot be inferred from the mere happening of an accident. It is applied, for example, in the case of something like an elevator accident, where nobody (except the building operator, and they're not talking) seems to know exactly what happened, but it is simply agreed in society that it is unacceptable for an elevator door to open when the car is not there so that people fall thru the door and get injured.
Strict product liability in tort. Arising from situations where the law of negligence proved inadequate to pin down exactly what a defendant manufacturer did wrong to cause a product to be defective, this rule (a kind of presumption, really) allows a jury to impose tort liability on a manufacturer where the plaintiff's proof shows that defendant placed the product in commerce and that, in the condition where it left the factory, it was unreasonably dangerous in a way that was beyond the expectations of the average reasonable consumer when used in a foreseeable,not necessarily intended, way, by the consumer. Thus, for instance, a folding chair that collapses when someone stands on it and causes injury can be prosecuted as defective even though the maker intended the chair to be sat upon, not stood upon, because it is foreseeable that some people will use the chair as a stepstool and stand on it.
Rear-end collisions. Many states have rules, usually created by judicial holding in prior cases rather than by statute, which make it presumptively negligent for a driver to run into the rear of another car, rebuttable if the defendant driver can come up with some other valid explanation for the event than his own negligence. It's just too hard and a waste of judicial resources to make the rear-end victim prove exactly what the defendant was doing -- chewing a Burger Queen, twiddling with the radio knobs, having his girlfriend in the right seat twirling with _his_ knob (don't laugh, I actually prosecuted a case like that once), or whatever -- again, since often only the defendant knows, and he's not talking. So the mere fact that he runs into you from the rear is sufficient to prove he was negligent, unless he comes up with a better explanation that the jury believes.
Contractual presumptions. The law asssumes that if you signed something, you read it, or at least that you should be held to the same standard of knowing and agreeing to what it contains as if you had read it. Interestingly, for some special kinds of clauses, the law presumes that they are NOT binding, even if you DID read it, unless they are printed conspicuously and in a certain minimum size of type, etc., such as some indemnification agreements, disclaimers of implied warranties on consumer products, etc. The reason for this is to protect the perceived weaker party in such transactions and place the burden of proof on the powerful party to show that what he did was reasonable.
Property law presumptions. Adverse possession, for example, presumes that property is yours rightfully if you have held it for a certain length of time openly, notoriously (that doesn't mean or imply anything bad, just means that the fact is widely known and "noted"), and against the interest of the adverse claimant (ie without his permission). This obviates the need to prove that the adverse party really didn't want it anyway; he proved that by not caring and not doing anything about your notorious occupancy of the property for decades.
Constitutional presumptions. The Miranda rule, and the Gideon rule, are examples of the court setting guidelines for the cops, which (after the rule is in place) they are presumed to know that they cannot cross that line without imperiling their case and getting it thrown out, as a punishment for police misconduct, not because the perp is proven innocent.
Criminal presumptions. Statutory rape, of course, which is what we've been discussing in this branch of the thread. Another example is the felony murder rule, under which a person committing any felony can be charged with murder if someone dies in the course of commission of that felony. It is presumed by law that the evil intent which motivated the commission of the original crime is extended to the intent to cause that death -- even if the person who died was the perp's own partner in crime, or a'la Bonnie and Clyde, someone the perp really cared about and specifically did _not_ want to die. No matter; they're still guilty of felony murder under the transferred intent presumption. One could argue that what the MI legislature was trying to do, in the statute that got this thread started, was create an analog to the felony murder rule with regard to sex crimes -- we could call it the "felony rape rule."
Many so-called "strict liability" crimes, such as traffic violations, pollution citations, zoning violations, etc. are in a similar vein. The state is relieved of the burden of having to prove criminal intent for these minor crimes where all they have to prove is that you did the act. If you drift your car across the double yellow centerline, and a cop catches you, it doesn't matter why you did it or whether you intended to create a danger to others -- that fact alone is enough to prove you guilty.
Note, it does not CONCLUSIVELY prove you are guilty, any more than strict liability in tort means that the next time your Firestone tire on your Ford Exploder explodes, and the SUV rolls over and its roof collapses, crushing you and your buddies inside, that Ford and Firestone are going to roll over themselves and just throw money at you. You have a right to defend the double-yellow charge by arguing that you swerved to avoid a baby that was crawling across the road in front of you; Ford has a right to defend and to show that other factors caused the crash, or that you were exceeding even the foreseeable uses of the vehicle because you drunkenly ran into a bridge abutment shortly before the tire exploded and the SUV flipped. But, as with all presumptions, the fact that the presumption supplies fills a gap that would otherwise exist in the required minimum elements of proof to ALLOW YOUR CASE TO AT LEAST GET TO THE JURY and not be dismissed before trial, on summary judgment, for failure to prove that essential element of your case -- in the SUV example, by proving some specific way that the vehicle and/or tire makers were somehow negligent in their design of the product. If the case, as it gets to the jury, is sufficiently convincing that they WILL believe in the existence of the missing fact of which you have no direct proof, you can still win even without direct proof of the missing fact. That's all we're talking about.
> May be we should just make it a
> general rule of law: if you do something that "everybody knows" is
> wrong, we will punish you even though we haven't specifically made a
> law against it.
Now you know that goes beyond what I was talking about, don't you? We were talking about bright-line tests that are known IN ADVANCE of the perp's actions being taken, and which he therefore undertakes only at his peril, whether or not those culpable facts in fact directly exist in his case. Humbert Humbert could be charged with statutory rape for having sex with Lolita even if, as in the book, she was the sexual agressor or at least a fully willing and knowing participant.
> I would like to try substituting another test instead of the "bright
> line"(*). When certain legally-defined kinds of power imbalance
> exist, there is a _rebuttable_ presumption of undue influence and/or
> non-physical coercion. The standard for rebutting that presumption
> could slide, depending on the age of the "victim". At one end we
> would have a "victim" who is only slightly below legal age, where it
> would be sufficient for the defendant to establish reasonable
> doubt.(+) Somewhere in the middle would be a younger post-puberty
> "victim", and the defendant would have to establish by "preponderance
> of evidence" that the consent was uncoerced. At the other extreme
> would be a pre-puberty "victim", where the defendant would have to
> prove beyond a reasonable doubt that consent was uncoerced.
Well, what actually has happened in most cases is the exact opposite. We started out with a "fuzzy" test, requiring strict proof of every required element of a charge or claim, and when it became apparent that many defendants who "everybody knew" were guilty were getting off the hook, the law as a matter of social policy CREATED a bright-line test and then forbade everyone to cross that line regardless of what their actual intent was.
> Or maybe that's too complicated.
No, that's the way most cases of every kind develop their evidence, in the absence of an applicable presumption. Presumptions are useful mainly in the kind of cases where it is too difficult most of the time to do that AND where social policy dictates that "something must be done" about the matter even if the full formal rigid proof of each required element of an affirmative claim was lacking, usually because the only person who knew what _really_ happened had no motive, and no compulsion, to reveal it.
> (*) Not so bright line -- even when the "victim" is underage, a
> prosecutor (usually) won't bother with a case when the "perpetrator"
> is fairly close in age (2-3 years). At least partly because they know
> a jury is going to be reluctant to convict somebody under those
> circumstances. Some states have enshrined that rule in their
> "statutory rape" laws, in others it's a matter of prosecutorial
> discretion.
That is in fact what MD does in statutory rape cases, by statute. I don't remember the exact numbers for the age difference since I don't do criminal law regularly, but if an 18- or 19-year old adult has sex with a 17-year old minor, that is not a prosecutable crime here.
--
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Mike Jacobs
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