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Author Topic: Putting the victim on trial  (Read 744 times)
jt84
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« on: July 12, 2013, 07:16:23 PM »

This isn't about a specific case, but rather a point about a complaint I often hear about our justice system.  If the mods think it'd be better in another section, I'd feel fine about it being moved.  I don't feel like the Detention Hall is the right place for it, though, and don't want it to devolve thanks to the nature of that segment of the boards since it is, I feel, an important issue.

I've been thinking.  About rape and how it is handled by our justice system.

Rape cases are hard to prosecute and can be very hard to defend as well.  I'm NOT discussing, nor am I going to discuss, the prevalence of rape accusations that aren't true.  Or "sexual assault" or "sexual misconduct" based on impaired judgment and bad decisions.  Nor am I trying to discuss the definition of rape to discuss whether "suck me or you can walk home" is a crime.  I'm solely discussing CASES in the criminal justice system.

Our system in the US, unlike a lot of other systems throughout history, places the burden of proof on the prosecution.  The defendant doesn't have to prove anything.  The defendant can't be compelled to testify.  The defendant can literally just sit there and say and do nothing and if the prosecution doesn't meet the burden of proving all elements of a crime "beyond a reasonable doubt" can still be acquitted.  Even if the defendant did it, if the prosecution cannot meet their burden of proof the defendant can be acquitted.

So our system doesn't JUST put the defendant on trial.  Every witness is also on trial - whether they be a witness for the prosecution or the defense.  Because we have to determine how much weight to give their testimony.  We have to determine; 1, is this witness lying about what they saw(or heard, or whatever)?  2, If the witness is not lying, how reliable is their testimony (how good is their eyesight?  What were the conditions?  Were they on anything?  Was their view/hearing/knowledge of the facts in any way distorted or impaired?  Has anything happened that might influence their testimony, particularly their interpretation of what they saw - such as interpreting rough foreplay as a sexual assault?)?  It's not enough to prove that, in a rape case, the defendant engaged in rough intercourse with the witness (victim).  It must also be proved that the intercourse was not consensual.  It must also be proved that the witness is truthful.  And that the witness' account of what happened is not only truthful and factual but is reliable.  ("I was drunk and I don't REMEMBER giving consent" is not the same as "I did not give consent."  And if that's the case, then the prosecution must prove that the defendant knew or should have known the "victim" was too drunk.)

I'll use the NC state code's version of "sexual offense in the second degree."

(a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:
(1) By force and against the will of the other person; or
(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.


I hear a lot of complaints about sexual assault cases putting the victim on trial.  But (and I know I'm not going to make any friends with this statement) it's a GOOD THING they do.  We should put ANY witness, in ANY case on trial to determine not just their honesty but also how reliable their testimony about events is.  We SHOULD force the prosecution to prove EVERY element of EVERY charge in EVERY case.  No free passes just because it's a rape case.  No easy convictions just because of what crime the defendant is charged with.  I prepare witnesses in every case I take to testify.  I prepare them roughly.  I've made them cry.  I've verbally abused and assaulted them, insulted them, marginalized them, and attacked them.  I don't do it to be mean to them.  I do it to prepare them for what the other side might do.  I try to make sure their testimony will be consistent, and that their testimony IS as reliable as it can be before putting them on the stand.  Because if I've got a burden (or am trying to rebut the other side's attempts to meet their burden) I know that the witnesses and evidence are how I will meet that burden.  And that means they are on trial too.  And that's the way it should be.  We don't want someone to be able to get up there and say "I saw in their window him fucking her and she was fighting back" and that's all they have to say.  We don't want a victim to get up there and say simply "he/she raped me" and that's it.  We want the prosecution to PROVE the elements of the charge.  We want them to prove all the elements are there.  And we want to prove that the witnesses are not just honest but also reliable.

Not just for rape but for every crime.  So... I suppose I'm in favor of putting the victim (as a witness) on trial just as much as we do any other witness.
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loverquest
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« Reply #1 on: July 12, 2013, 11:56:40 PM »

 emot_kiss.gif hi JT, playing into this discussion....



SO, Just because i LIKE SEX, and have been fairly indiscriminate {downright slutty, at times}, i dress {GRINS} showing as much as i can without being indecent, and my personal idea of privacy is nonexistent.. and i have made some poor choices... then.. i am fair game for any sexual predator and deserve to be abused??
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jt84
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« Reply #2 on: July 13, 2013, 02:11:18 AM »

Being serious in my response: no, and nowhere did I say that any of that makes you "fair game" or makes you "deserve" it or says that you were "asking" for it.  In no way does my saying we should put the witness (even if they are the victim) on trial like we do all witnesses to verify the witness' testimony imply that I think it's okay for a sexual predator to force or take advantage or coerce someone.

The fact that we put witnesses on trial has nothing to do with whether or not it's "okay" to make someone into a victim.  It does, however, make the idea of coming forward very intimidating since the victim's testimony is often crucial to actually being able to convict and it is obviously not something one would want to relive or be attacked over on the witness stand.  No witness - even ones who were not victims - wants to be attacked on the witness stand and put on trial.  But we do it anyway because of the need to attack their story, to prove them not just honest but also credible and reliable.

I'm not talking about the police's behavior toward rape reports, either.  I'm not discussing cops who ignore/dismiss reports from victims who do come forward.  I'm talking about what happens when the case is actually pursued, after someone has come forward.  The witness (victim) is put on the stand and attacked just like any other witness.  Their testimony is attacked.  Their truthfulness is attacked to try and determine if it holds up or if they are lying or embellishing or making any part of it up.  Their reliability is attacked to determine whether what they think they saw is actually what was happening (and so on and so forth).  If they put their character or sexual promiscuity at issue ("I'm a good girl, I would never consent to a one night stand" and all of a sudden those things are an issue because the witness/victim MADE them an issue by opening the door) then that is attacked.

If you testify in a trial, under oath, your testimony deserves to be poked and prodded and attacked to determine its veracity and reliability.  That has nothing to do with whether you deserve to be made a victim.
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loverquest
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« Reply #3 on: July 13, 2013, 03:03:02 AM »

Okay, on one hand i do agree with you,
BUT- {grins}

For instance.....I am a very honest person.... and usually if someone is a witness, they do not have a choice.. right?
and being HONEST... if your case depends on me you are screwed, because i would make a shit-ty witness.
1) i only remember things after {over}processing
2)I am not good under pressure.

so knowing there are others out there similar to me... that is messed up for those that must rely on a witness "like me"


just sayin.
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« Reply #4 on: July 13, 2013, 05:42:59 AM »

How aggressively is anyone that is robbed questions about if it actually happened?
There have been cases where an employee has claimed to have been robbed and it's been an attempt to cover their own theft.
If anything I think there is to much leeway given to rape victims in that they can report it days or weeks after the "event" when there is no hope of recovering any physical evidence in the form of DNA.
I don't doubt that being raped is a traumatic experience, but so is driving a car into a lightpole and there is no leeway in when it must be reported if the driver is able to walk away from the accident
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« Reply #5 on: July 15, 2013, 08:13:34 PM »

lover, that's one of the reasons prosecuting sexual crimes is so difficult.  And one of the reasons why it goes unreported so much.  The witness (victim) doesn't want to get up on the stand and get accused of being a slut who decided to cry rape after willingly sleeping with someone, they don't want their sexual history brought up (that's character evidence, which is normally not admissible UNLESS a witness makes character relevant such as by claiming "I don't do things like one-night stands, I'm a good girl."  Which is often one of the first lines you'll hear from someone who doesn't want to seem like they sleep around, even if they do.  Not that I'm saying sleeping around means you deserve to get raped, not at all.).  They don't want to be called a liar on the stand.  Made to relive the experience that traumatized them not just in re-telling the story (in detail) but in being poked and prodded and attacked over every single detail, every little inconsistency.  And if a defense attorney doesn't go after every detail, every inconsistency, they're not doing their job.

Even the cops who investigate such crimes shouldn't JUST take the witness (victim) at their word.  They should ask questions, gather information, and follow up if something doesn't seem to fit.  No, the cops shouldn't just dismiss a rape claim out of hand.  Nor should the courts.  But police investigations should be done with prosecution in mind and the important thing about the criminal justice system (as everyone seems to forget) is that it's not there to convict someone because that person did something wrong, it's there to convict someone because the prosecution PROVED BEYOND A REASONABLE DOUBT that the person did something wrong.  That's why "innocent" isn't one of the verdicts in a criminal trial.  Only Guilty or Not Guilty.  It's not "you didn't do it."  It's "they didn't PROVE to a sufficient degree of certainty that you did it."
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« Reply #6 on: July 15, 2013, 08:23:57 PM »

Good post JT  :)
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loverquest
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« Reply #7 on: July 16, 2013, 05:14:43 AM »

I have known for a long time that the phrase "innocent until proven guilty" is a farce. a misnomer{?} it isn't part of our justice system.

however, SOMETIMES {they} ARE mistaken. and {they} label an innocent as "GUILTY".
in that case, it WAS proven by whatever standards... but looks, proof- what have you- were misleading. deceptive even.
i do understand that for different crimes there is different 'requirements' for proof.
also that there are variables.
now i am rambling. so i will stop.

 emot_kiss.gif
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« Reply #8 on: July 16, 2013, 07:29:48 AM »

The O.J. Simpson saga proved the lie of "Innocent until proven guilty" (I'm not trying to bring up did he or didn't he)
He was found Not Guilty in the criminal trial yet a lower standard of proof was enough to eventually see him in jail. Without the civil case and judgement he never would have attempted to retrieve what was once his.
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« Reply #9 on: November 26, 2016, 01:19:16 AM »

When Angela placed a restraining order against me, it felt a bit like a mini-rape trial because she was accusing me of inappropriate sexual advances.  Albeit the allegations weren't as serious--I was not accused of touching or threatening her--and the potential consequences for me weren't as serious.  But it did have a bit of that feel and it did feel a bit like both parties were on trial.  Both my sexuality and Angela's sexuality were put on display in an open courtroom to be judged.
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« Reply #10 on: November 30, 2016, 09:10:47 AM »

What people who complain about the treatment of the "victim" always seem to overlook, is how serious a charge of rape is.  Of course victims of burglary or plain assault don't get their lives scrutinized in court.  Because the punishment for those crimes is peanuts compared to rape.  We give rape so much significance that being convicted could land you more prison time than murder.  And if it was possible for a  murder victim to testify at their own trial, you better believe that their lives would be heavily scrutinized to see if they are trustworthy.  There is no other crime where a person can walk into a police station and for whatever reason make an accusation, truthful or not, that ruins a person's life and potentially put them in prison for more than a decade.  So while it may be difficult to go through, if you are going to accuse someone of something with such serious consequences, then you damn well better expect to have your claim validated.  Otherwise, we can eliminate any victim badgering as long as those whose claims of rape are unfounded receive the punishment equivalent to the charge they filed against the defendant.  That should clear up any doubt about claims of rape being legitimate from then on, as nobody would be dumb enough to make a false claim that could land them in prison for 20 years.
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« Reply #11 on: November 30, 2016, 10:55:38 PM »

This sort of thing happens when campus amateurs
try to investigate sexual assault cases better left to
professionals. Even the pros don't always get it right,
but their record is much better than the campus
amateurs. However well-intentioned, they are
demonstrably incompetent as investigators.

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« Reply #12 on: December 01, 2016, 02:21:50 AM »

To be clear, "victim on trial" doesn't mean pressed to make sure the victim is giving honest testimony.

Putting the victim on trial usually refers to all the things people say to justify the act of rape.  Is she promiscuous enough that a juror won't readily empathize?  Was she wearing something too revealing?  Did she "send the wrong signals"?

These matters don't have to do with the question of whether or not the rape was falsely reported.  (Note that the FBI estimates that approximately 8% of rape reports are false, which isn't nothing, but not anywhere near what some claim.)

Basically, putting the victim on trial isn't about the question of if the rape or sexual assault didn't happen, but if it was, in fact, the victim's fault.

That's what people mean by "putting the victim on trial."

To use the murder analogy, it would be like saying the victim deserved to die, because they looked threatening in a hoodie.
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« Reply #13 on: December 15, 2016, 01:36:13 PM »

This is the thing, at least in my opinion, and I’m speaking from my own personal experience. When I worked the street, it would have been pointless in reporting any of my rapes. People cannot help but be influenced by certain facts, no matter if the prosecution could avoid asking the questions the defense would ask them. You do not have to take the stand as a defendant but as a victim you do.

First questions from the Defense Att., “Miss Dynamite what do you do for a living?”

Answer Miss Dynamite, “I’m a stress release facilitator.”

Defense Att., “Does that mean you have sex in exchange for money?”

Miss Dynamite, “Yes.”

Defense Att., “So, you’re a whore, right?”

Miss Dynamite, “Yes.”

At that point, you may as well roll up the sidewalks it all over. No one will put a john in jail for not paying a whore. Oh, it had a lot more involved than that, but the good people of the jury will never get beyond the fact that the victim is a whore.

Believe me, some of the most violent acts of rape are committed on hookers. We’re the favorite target for a serial rapist or serial killers because no one cares if we live or die. While I’m not complaining, I’m glad to not be in that life anymore, those are just the facts. I think it is hard for someone to comprehend being that desperate in life, to sell yourself is beyond the line most people draw. You know, that line you will not cross. It is easier to understand stealing than fucking for money. I think it is very hard for a woman that has never been that desperate to get it.

Being a prostitute goes beyond slutty, having loose morals, or dressing provocatively. Jurors, especially women jurors, view it as having nothing left to lose. You’ll do it with anyone; therefore, you can’t be raped.

The times I was raped I knew these things to be true, the sad thing is, there still true. If I am ever raped again, I can’t report it, why? Because, the defense att. Will use my past against me. As soon as it comes out that I was a whore, case closed.
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« Reply #14 on: December 23, 2016, 07:32:59 PM »

This is the thing, at least in my opinion, and I’m speaking from my own personal experience. When I worked the street, it would have been pointless in reporting any of my rapes. People cannot help but be influenced by certain facts, no matter if the prosecution could avoid asking the questions the defense would ask them. You do not have to take the stand as a defendant but as a victim you do.

First questions from the Defense Att., “Miss Dynamite what do you do for a living?”

Answer Miss Dynamite, “I’m a stress release facilitator.”

Defense Att., “Does that mean you have sex in exchange for money?”

Miss Dynamite, “Yes.”

Defense Att., “So, you’re a whore, right?”

Miss Dynamite, “Yes.”

At that point, you may as well roll up the sidewalks it all over. No one will put a john in jail for not paying a whore. Oh, it had a lot more involved than that, but the good people of the jury will never get beyond the fact that the victim is a whore.

Believe me, some of the most violent acts of rape are committed on hookers. We’re the favorite target for a serial rapist or serial killers because no one cares if we live or die. While I’m not complaining, I’m glad to not be in that life anymore, those are just the facts. I think it is hard for someone to comprehend being that desperate in life, to sell yourself is beyond the line most people draw. You know, that line you will not cross. It is easier to understand stealing than fucking for money. I think it is very hard for a woman that has never been that desperate to get it.

Being a prostitute goes beyond slutty, having loose morals, or dressing provocatively. Jurors, especially women jurors, view it as having nothing left to lose. You’ll do it with anyone; therefore, you can’t be raped.

The times I was raped I knew these things to be true, the sad thing is, there still true. If I am ever raped again, I can’t report it, why? Because, the defense att. Will use my past against me. As soon as it comes out that I was a whore, case closed.


The same is true of any drug addict or man tagged as a sex offender.
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