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It's not even about whether the evidence as we know it is convincing. Even if it is plainly obvious that someone did commit a rape, such as a video of it, a ci

It's not even about whether the evidence as we know it is convincing. Even if it is plainly obvious that someone did commit a rape, such as a video of it, a civilised society would treat them as simply an accused, just one side of a legal case, until the trial is complete. If I could design society, I would remove the dock and in all court cases have two identical sides of the room - person A (person A could be the state or the Crown) says person B did something, person B says that person A is falsely accusing them of doing something. There's no defendant and victim, just two opposing stories and a trial to establish reasonable fact. Every criminal case should be simultaneously a false accusation case.

lutusp 14y ago
> If I could design society, I would remove the dock and in all court cases have two identical sides of the room ... But that already exists -- it's called civil law. Contrast with criminal law: In criminal law, the state has an interest and brings charges against a defendant, the sides are called "prosecution" and "defense", the standard for judgment is "beyond a reasonable doubt", and the outcomes include incarceration and (in some countries) execution. In civil law, the state has no interest, the offenses aren't called crimes, the two sides have equal standing and are called "petitioner" and "respondent" (the names change in different locales), the standard for judgment is "preponderance of evidence", and the outcome is usually a monetary payment. Incarceration isn't possible. > There's no defendant and victim, just two opposing stories and a trial to establish reasonable fact. This already exists, but it's not suitable for all cases. Any time the state has an interest, the rules change, and the word "crime" begins to be heard.
- johncarrion 14y ago
  Why isn't it suitable? You say that the 'rules change' when it's criminal, but that's only because those are the rules we've got. There's no reason that we couldn't make all trials use the civil approach. If Sarah wants to accuse Bob of rape, she petitions a court and has to prove beyond reasonable doubt that it happened. If Bob denies it then automatically an opposite trial of false accusation runs at the same time. If Sarah has evidence that Bob raped her, perhaps the testimony of police detectives, Bob looses both cases and goes to prison. If there's not enough evidence, both sides loose. If it becomes clear that Bob definitely did not rape her, Sarah looses both cases, including the false accusation case, and goes to prison. At the moment Bob would have to make a separate trial for defamation or whatever. I think it should be rolled into one. In the case of murder, or treason, or grafatti of public property or whatever, it would be the state accusing. If it turns out that it was a malicious false accusation then the police or prosecutors would be liable.
  - venus 14y ago
    While I definitely agree that false accusation should be treated far more seriously and consistently than it seems to be, I think this is going too far in the other direction. Why should a victim of crime be obliged to prove a case against their aggressor? Who pays? What if the victim doesn't have the resources or time to take someone to court? And you need to make an exception for murder, attempted murder, disablement, etc anyway. No, the current concept of criminal justice works reasonably well, or would with consistent and serious enforcement of false accusation (and, for that matter, prosecutorial harassment). I repeat myself over and over again but I maintain that the best thing we can do to fix the justice system is to enforce the bloody law. All the laws. Consistently. If the law is too ridiculous to enforce, revoke it. But enforce the ones we have. Discretion in enforcing the law leads to gaming the system, protected and taboo groups, corruption, and ultimately profound injustice.
    - lutusp 14y ago
      > While I definitely agree that false accusation should be treated far more seriously and consistently than it seems to be, I think this is going too far in the other direction. Why should a victim of crime be obliged to prove a case against their aggressor? [emphasis added] Wait -- that's already true. Do you think the present system relieves a plaintiff of the burden of evidence? In a rape trial, the plaintiff has to produce evidence "beyond a reasonable doubt", and the state can do little to help (most rape cases rely on circumstantial evidence). And "innocent until proven guilty" is a cornerstone of Western legal systems -- this discussion isn't about that, and shouldn't be. > Discretion in enforcing the law leads to gaming the system, protected and taboo groups, corruption, and ultimately profound injustice. Yes, and it's unconstitutional as well, therefore illegal and grounds for dismissal if it can be proven. But the suggestion being made here doesn't really address it -- both civil and criminal courts are equally likely to treat cases selectively, as do the police.
    - johncarrion 14y ago
      "Why should a victim of crime be obliged to prove a case against their aggressor?" That's what I have issue with more than anything else. We don't know that they are a victim until the trial has concluded. Until then they're just claiming to be a victim. They may well be right, they may be honestly mistaken (it was dark and I mistook who he was), or they may be less honestly mistaken (I was drunk and assumed), or they may be maliciously mistaken (revenge). Even if they have been beaten up or whatever, so it's pretty clear they didn't make it up, we should act cooly and say until we've had the trial, it's all just accusations. Nobody should be a "victim" until there has been a trial. Innocent until proven guilty, accuser until proven victim.

lutusp 14y ago

> If I could design society, I would remove the dock and in all court cases have two identical sides of the room ... But that already exists -- it's called civil law. Contrast with criminal law: In criminal law, the state has an interest and brings charges against a defendant, the sides are called "prosecution" and "defense", the standard for judgment is "beyond a reasonable doubt", and the outcomes include incarceration and (in some countries) execution. In civil law, the state has no interest, the offenses aren't called crimes, the two sides have equal standing and are called "petitioner" and "respondent" (the names change in different locales), the standard for judgment is "preponderance of evidence", and the outcome is usually a monetary payment. Incarceration isn't possible. > There's no defendant and victim, just two opposing stories and a trial to establish reasonable fact. This already exists, but it's not suitable for all cases. Any time the state has an interest, the rules change, and the word "crime" begins to be heard.

johncarrion 14y ago
Why isn't it suitable? You say that the 'rules change' when it's criminal, but that's only because those are the rules we've got. There's no reason that we couldn't make all trials use the civil approach. If Sarah wants to accuse Bob of rape, she petitions a court and has to prove beyond reasonable doubt that it happened. If Bob denies it then automatically an opposite trial of false accusation runs at the same time. If Sarah has evidence that Bob raped her, perhaps the testimony of police detectives, Bob looses both cases and goes to prison. If there's not enough evidence, both sides loose. If it becomes clear that Bob definitely did not rape her, Sarah looses both cases, including the false accusation case, and goes to prison. At the moment Bob would have to make a separate trial for defamation or whatever. I think it should be rolled into one. In the case of murder, or treason, or grafatti of public property or whatever, it would be the state accusing. If it turns out that it was a malicious false accusation then the police or prosecutors would be liable.
- venus 14y ago
  While I definitely agree that false accusation should be treated far more seriously and consistently than it seems to be, I think this is going too far in the other direction. Why should a victim of crime be obliged to prove a case against their aggressor? Who pays? What if the victim doesn't have the resources or time to take someone to court? And you need to make an exception for murder, attempted murder, disablement, etc anyway. No, the current concept of criminal justice works reasonably well, or would with consistent and serious enforcement of false accusation (and, for that matter, prosecutorial harassment). I repeat myself over and over again but I maintain that the best thing we can do to fix the justice system is to enforce the bloody law. All the laws. Consistently. If the law is too ridiculous to enforce, revoke it. But enforce the ones we have. Discretion in enforcing the law leads to gaming the system, protected and taboo groups, corruption, and ultimately profound injustice.
  - lutusp 14y ago
    > While I definitely agree that false accusation should be treated far more seriously and consistently than it seems to be, I think this is going too far in the other direction. Why should a victim of crime be obliged to prove a case against their aggressor? [emphasis added] Wait -- that's already true. Do you think the present system relieves a plaintiff of the burden of evidence? In a rape trial, the plaintiff has to produce evidence "beyond a reasonable doubt", and the state can do little to help (most rape cases rely on circumstantial evidence). And "innocent until proven guilty" is a cornerstone of Western legal systems -- this discussion isn't about that, and shouldn't be. > Discretion in enforcing the law leads to gaming the system, protected and taboo groups, corruption, and ultimately profound injustice. Yes, and it's unconstitutional as well, therefore illegal and grounds for dismissal if it can be proven. But the suggestion being made here doesn't really address it -- both civil and criminal courts are equally likely to treat cases selectively, as do the police.
  - johncarrion 14y ago
    "Why should a victim of crime be obliged to prove a case against their aggressor?" That's what I have issue with more than anything else. We don't know that they are a victim until the trial has concluded. Until then they're just claiming to be a victim. They may well be right, they may be honestly mistaken (it was dark and I mistook who he was), or they may be less honestly mistaken (I was drunk and assumed), or they may be maliciously mistaken (revenge). Even if they have been beaten up or whatever, so it's pretty clear they didn't make it up, we should act cooly and say until we've had the trial, it's all just accusations. Nobody should be a "victim" until there has been a trial. Innocent until proven guilty, accuser until proven victim.