On Feb 6, 7:26 am, b...@nyx.net (Barry Gold) wrote:
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >{WRT evidentiary presumptions] 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 --
>
> Ah. There I have no problem. My problem is with absolute
> presumptions. And the particular case at issue _did_ in fact involve
> such an absolute presumption, namely that because the perp exchanged
> drugs for sex, there was a presumption that she didn't consent (or at
> least, that her consent didn't count for legal purposes).
Upon further reflection, maybe we _are_ talking about 2 different things. There is, on the one hand, the concept of evidentiary presumptions, generally rebuttable, which have the net effect of shifting the burden of proof onto the party disfavored by the presumption. And OTOH there are SUBSTANTIVE rules of law that rely on bright-line tests. IMO the misunderstanding we are having arises because you object to certain acts being statutorily criminalized by a bright-line test, but are looking at it more as a matter of what evidence is presumed irrelevant to a defense rather than focusing on the nature and elements of the act charged -- the substantive law -- which is what makes certain facts relevant or not in the first place. Consent is irrelevant to the sex acts under discussion simply because lack of consent is not a substantive element of the charged offense.
IMO, evidentiary presumptions are not only common, they are part and parcel of virtually every actual dispute, since for each disputed issue, one party or the other has to persuade the factfinder and therefore win (unlike in mediation, there is no "middle ground" in litigation) by the required standard of proof (beyond reasonable doubt, clear and convincing, or a mere preponderance). There is one party or the other whom the law considers to win by default if the other party fails in its burden of evidentiary proof. That's why those accused of criminal acts are presumed innocent until proven guilty BARD, why libel suits against media by a public figure are nonstarters unless the celebrity can prove malice by clear and convincing evidence, and why the verdict in a "he said, she said" civil dispute invariably is handed to the defendant if the factfinder has no way to break a 50-50 tie and be persuaded by a preponderance (51% or more). Beyond that, everyone is presumed to know the law; one is presumed to intend a result if one knows or should know with reasonable certainty that it will occur; and so on. Grounded party in human psychology, partly in logic, and mostly in social policy based on what worked in previous cases (stare decisis), such rules are the meat and potatoes of law.
OTOH we have the 2 kinds of sex offenses at issue in this thread: the original case, involving a statute creating something analogous to a felony murder rule when a sex act occurs during the commision of another felony -- let's call that the "felony rape rule"; and, as Barry has brought up in the latter part of this thread, statutory rape (presumed lack of consent) where the "victim" (his quotes, not mine) is a child of tender years (the exact "age of consent" to participating in sex varying as it does from state to state and also in relation to the age of the other participant, the potential defendant). In both of these examples, we are dealing with a rule of SUBSTANTIVE law more than a mere evidentiary presumption. The reason why consent of the underage participant is not a defense to the crime of statutory rape is that LACK of consent is not a substantive element of the crime charged and thus is irrelevant to the state's proving whether the defendant knowingly and willingly committed the prohibited act, i.e. having sex with a minor.
As with evidentiary presumptions, this is also an area where social policy is largely in play, but it is a different animal. The debates and choices over whether prohibiting a certain act were a good idea or not took place, or should have taken place, in the legislature BEFORE a statute was passed. One can imagine, for instance, such a debate occurring over whether the rules of the road should require that all drivers keep to the right of the roadway, or to the left. The choice may be completely arbitrary; but once it is made, violation of the rule is a crime. Likewise with a statute such as the ones criminalizing statutory rape (note well the "statutory" part, since if all we were talking about was COMMON LAW rape involving an alleged victim who happened to be a minor, then lack of consent WOULD be a defense. The legislature, perhaps not liking the precarious position in which such iffy prosecutions left their (and their constituents', since getting re-elected is every legislator's first priority) young daughters, made it a hard-line rule: no sex with minors below a certain age, period. Once they made that rule, that was the law, and as anyone who has ever referred to sexually precocious children as "jail bait" (i.e. virtually every potential statutory rapist) knows, this IS a bright-line test, which one crosses only at one's extreme peril.
Now, one may possibly argue -- as you apparently do below -- that in some cases, sex with a minor may not be immoral, and should not be criminalized, so that therefore the defendant should be allowed to raise all the same defenses -- including that of the victim's consent to the act -- which are allowed at common law rape prosecutions. But those are arguments that are properly directed to the legislature, either when they are contemplating passage of such a statute or in an effort to repeal an undesirable statute -- rather than to the prosecution of individual cases.
> And the above argument is why I suggested we should substitute a
> rebuttable presumption, or at least require testimony by the alleged
> victim that he/she really _was_ victimized. I would probably favor
> making the standard of proof as easy as that, but I _would_ require
> that the "victim" not be a willing participant.
Although it is tempting to make a straw man out of this argument, seeing it as simply an apologia for pedophiles who want a legitimate exception to the law so they can engage in child sex with willing participants, in all kindness I will not attribute that motivation to you. I understand that where you are coming from is a strongly libertarian philosophy that holds the best government to be the least government consistent with its primary purpose of protecting public safety, and that the law should simply keep its nose out of the "vice" field, de-criminalizing all kinds of "victimless" crimes such as drugs, consensual sex acts, gambling, etc. as well as get out of the business of regulating things like racial and other discrimination in housing and employment, consumer product safety, public health matters such as alcohol, tobacco, transfats, and vehicular emissions, protection of endangered species and ecosystems against development, regulation of markets with protective tarriffs and subsidies as well as disclosure rules and anti-fraud and antitrust laws, and virtually everything else government does except the police and the military. But the plain fact is, all these other areas of law grew over decades because one or the other person's ox was being gored with no apparent legal recourse, the people concerned lobbied the lawmakers to "do something about it", and they did, so it is now the law. And the real "victim" which ALL criminal laws seek to protect is SOCIETY as a whole, not the individual complainants, who indeed also have all their civil remedies available against the perp to get _personal_ rights vindicated.
Taking just statutory rape as an example, society feels that ON BALANCE, so much bad stuff is associated with child sex that it should just be prohibited outright, rather than diddling around with consent issues, whether the indivudal child at issue was really "harmed" or not, and so on. This is basically the same reasoning that led to criminzlization of other so-called "victimless" crimes like drugs, prostitution, and gambling. You can argue that criminalizing such acts creates more problems than it solves; some of us here may agree with you on one or the other of these areas. But the legislature clearly DOES have Constitutional power to criminalize such acts with bright-line tests if they bear _some_ rational relation to a legitimate government goal, in which the only intent that need be shown is the intent to do the act, not the intent to cause any harm or even to show that actual harm did occur from the particular act. And, I simply cannot see the "unfairness" you allege in such a situation, since the statutory bright-line rule IS known in advance and, being a bright-line test, it's not as though it creates a "trap for hte unwary" or something which a person may wander across inadvertently.
Some laws incorporate a substantive bright-line test, like "don't cross the double yellow line" or "don't have sex with minors". Others don't. If you want to eliminate the bright-line rules created by statutory law, complain to your legislature. All the cops and courts are doing is enforcing the law as written.
--
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Mike Jacobs
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