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This article focuses on cases of rape in which DNA evidence did provide new information, though it's worth noting that there are a number of kits that are never

This article focuses on cases of rape in which DNA evidence did provide new information, though it's worth noting that there are a number of kits that are never processed because there is no need - the disagreement is not on whether the rapist and victim had sex, but on whether it was consensual or not. I don't really know what percentage of cases this applies to, and I wouldn't be surprised if the data on this is fuzzy to begin with. But it's helpful to keep in mind because a large reason that so many rapists get away[0] is that it can be difficult to prove lack of consent, and the status quo is that justice system effectively defaults to assuming consent unless otherwise proven (at least in many cases), which has unfortunate consequences for both the victim and future victims. [0] http://www.davidlisak.com/wp-content/uploads/pdf/RepeatRapeinUndetectedRapists.pdf http://www.davidlisak.com/wp-content/uploads/pdf/RepeatRapei...

deleted 11y ago
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delinka 11y ago
"...assuming consent unless otherwise proven..." So the accused is innocent until proven guilty.
- microcolonel 11y ago
  That seems consistent with the spirit of the legal system. Added: That is, to skirt this basic mechanism would probably be worse for everyone than the temporary escape of a rapist. I say this as somebody who has experienced sexual abuse. Another thing to keep in mind is that most rape and sexual assault is committed by people whom the victim knows personally, which makes the majority of cases much simpler to prosecute than this one. Yet another thing to keep in mind is that although rapists tend to be repeat offenders, only a small percentage are "serial rapists". That is, they're rare like serial killers are. Those guys barely exist. Note: there are replies to my comment which hackerne.ws won't let me reply to, my silence doesn't indicate an agreement or indeed a disagreement with any of the statements herein.
  - rayiner 11y ago
    Yes, and it also makes prosecuting rape very difficult, in a structural way. It's a reminder that there are real trade-offs in criminal justice. That's why people can, in good faith, argue for not reading Constitutional protections in the broadest possible light.
  - chimeracoder 11y ago
    > Another thing to keep in mind is that most rape and sexual assault is committed by people whom the victim knows personally, which makes the majority of cases much simpler to prosecute than this one. That's actually more difficult to prosecute successfully. It's much easier when you have DNA evidence linking two people who otherwise have no connection whatsoever, and demonstrating that forcible sexual contact occurred despite the rapist claiming to be somewhere else at the time. It's much more difficult when the rapist is a relative who has plenty of opportunities to be close to the victim, plenty of alternative alibis or excuses, and (most importantly) plenty of leverage to emotionally blackmail the victim into not filing charges. Rape can occur within marriage or domestic partnerships, and this is probably by far the most difficult to prosecute. The fact that the victim knows the rapist makes it more complicated legally and logistically, not less. In an abusive relationship, it's considered a success just to get the victim out of the relationship at all, and if they're in an emotional state where they can still move on and function in life, that's an added bonus. In situations like these, trying to prosecute the rapist is a distant pipe dream. > Yet another thing to keep in mind is that although rapists tend to be repeat offenders, only a small percentage are "serial rapists". That is, they're rare like serial killers are. Those guys barely exist. I really don't understand where you draw the line between "repeat offender" and "serial rapist". If you look at the link I cited in the original comment, it provides data on the number of repeat offenders, which is already troubling enough to be of concern, regardless of whether it meets your unstated threshold of "serial rapist".
    - gizmo686 11y ago
      I don't normally like saying this, but why was this comment downvoted? >I really don't understand where you draw the line between "repeat offender" and "serial rapist". I don't know what microcolonel intended, but I see the distinction in who was raped. A repeat offender may rape only a single person, but multiple times. A serial rapist sound like someone who rapes multiple people.
- oldmanjay 11y ago
  for the sake of being the devil's advocate, how could one carve out a little more room for interpersonal disputes such as this to be adjudicated? consent is too abstract to be measured, so proof is an impossibly high standard in a practical sense.
  - allendoerfer 11y ago
    "Proof" in the legal sense is not the same as in the mathematical sense. Courts can decide which witness can be trusted and which can not. You can be sentenced even if there was a possible explanation how things could have happened without you committing a crime. In the end it matters, what the jury thinks. What the jury thinks about possible rape cases is of course depended on societies overall attitude to the crime and the involved group of persons. To give an extreme example: I would say, that a few years ago, many would never think that a priest could also be a rapist. Without the possibility in mind it is hard to convict somebody of something. So we have to be very careful. There are a few cases of people ruining other peoples lives by accusing them, but most of the time, when somebody claims to be a rape victim and you have found DNA samples, probably it was indeed rape.
    - oldmanjay 11y ago
      Without getting into all the various ways the jury system fails in general, would it make sense to have a more professional jury for sexual crimes? I don't actually know what sort of training might be applicable here but I imagine it could ve more effective than 12 random citizens trying to process things they don't really understand.
      - rblatz 11y ago
        Professional juries sound good on the surface, but are really a bad idea when you get into how they actually work. How do you appoint these juries, and how do you measure their performance? If you elect them, they will invariably go tough on crime, and have a huge conflict of interest in finding people guilty. If you don't elect them and they are appointed who appoints them and how can you prevent the ultimate check on the state's power from being corrupted?
- tehwalrus 11y ago
  no, that is not the same thing. In a case where the two people have differing accounts of consent, and there is no other usable evidence, the person is found "not guilty" (not the same as innocent) because it cannot be proved. This is not the same thing as assuming consent, it is applying the principle of the law. Assuming consent is a much more insidious thing, which means actually disbelieving the victim on principal, because of the type of crime. This is not a problem in e.g. theft, because nobody assumes people want their stuff stolen.
  - parennoob 11y ago
    > This is not a problem in e.g. theft, because nobody assumes people want their stuff stolen. This could actually be a huge problem if the thief is someone you know. Imagine you find some items missing from your house in the course of a normal day. You then go and tell the police that the potential suspects are your friends, your SO, and everyone else who was in your house. Do you think the police (in any country) will be serious about investigating your case?
- DannoHung 11y ago
  No one is necessarily accused before the processing of a rape kit. In fact, a rape kit may provide exonerating evidence of the accused. Don't be dense.
- venomsnake 11y ago
  > So the accused is innocent until proven guilty. And you don't want to live in a place where it is otherwise. To make things even more fun - most sexual acts are done on secluded places, so having a reliable witnesses is somewhat rare.
  - A_COMPUTER 11y ago
    There used to also be a much stronger sense that approaching these consent issues would be creating legal regulation on the performance of the sex act. And it has. Affirmative consent people think there's no downside, but they are enabling this and the logical, only safe conclusion is ultimately documentation of consent and the sex act, both in writing and video, just like reactionaries warned us in the 1980's. Cellphone videos are already saving people. If you start regulating the private sex act, there's going to be strong incentive to make it not private anymore.

deleted 11y ago

[deleted]

delinka 11y ago

"...assuming consent unless otherwise proven..." So the accused is innocent until proven guilty.

microcolonel 11y ago
That seems consistent with the spirit of the legal system. Added: That is, to skirt this basic mechanism would probably be worse for everyone than the temporary escape of a rapist. I say this as somebody who has experienced sexual abuse. Another thing to keep in mind is that most rape and sexual assault is committed by people whom the victim knows personally, which makes the majority of cases much simpler to prosecute than this one. Yet another thing to keep in mind is that although rapists tend to be repeat offenders, only a small percentage are "serial rapists". That is, they're rare like serial killers are. Those guys barely exist. Note: there are replies to my comment which hackerne.ws won't let me reply to, my silence doesn't indicate an agreement or indeed a disagreement with any of the statements herein.
- rayiner 11y ago
  Yes, and it also makes prosecuting rape very difficult, in a structural way. It's a reminder that there are real trade-offs in criminal justice. That's why people can, in good faith, argue for not reading Constitutional protections in the broadest possible light.
- chimeracoder 11y ago
  > Another thing to keep in mind is that most rape and sexual assault is committed by people whom the victim knows personally, which makes the majority of cases much simpler to prosecute than this one. That's actually more difficult to prosecute successfully. It's much easier when you have DNA evidence linking two people who otherwise have no connection whatsoever, and demonstrating that forcible sexual contact occurred despite the rapist claiming to be somewhere else at the time. It's much more difficult when the rapist is a relative who has plenty of opportunities to be close to the victim, plenty of alternative alibis or excuses, and (most importantly) plenty of leverage to emotionally blackmail the victim into not filing charges. Rape can occur within marriage or domestic partnerships, and this is probably by far the most difficult to prosecute. The fact that the victim knows the rapist makes it more complicated legally and logistically, not less. In an abusive relationship, it's considered a success just to get the victim out of the relationship at all, and if they're in an emotional state where they can still move on and function in life, that's an added bonus. In situations like these, trying to prosecute the rapist is a distant pipe dream. > Yet another thing to keep in mind is that although rapists tend to be repeat offenders, only a small percentage are "serial rapists". That is, they're rare like serial killers are. Those guys barely exist. I really don't understand where you draw the line between "repeat offender" and "serial rapist". If you look at the link I cited in the original comment, it provides data on the number of repeat offenders, which is already troubling enough to be of concern, regardless of whether it meets your unstated threshold of "serial rapist".
  - gizmo686 11y ago
    I don't normally like saying this, but why was this comment downvoted? >I really don't understand where you draw the line between "repeat offender" and "serial rapist". I don't know what microcolonel intended, but I see the distinction in who was raped. A repeat offender may rape only a single person, but multiple times. A serial rapist sound like someone who rapes multiple people.
oldmanjay 11y ago
for the sake of being the devil's advocate, how could one carve out a little more room for interpersonal disputes such as this to be adjudicated? consent is too abstract to be measured, so proof is an impossibly high standard in a practical sense.
- allendoerfer 11y ago
  "Proof" in the legal sense is not the same as in the mathematical sense. Courts can decide which witness can be trusted and which can not. You can be sentenced even if there was a possible explanation how things could have happened without you committing a crime. In the end it matters, what the jury thinks. What the jury thinks about possible rape cases is of course depended on societies overall attitude to the crime and the involved group of persons. To give an extreme example: I would say, that a few years ago, many would never think that a priest could also be a rapist. Without the possibility in mind it is hard to convict somebody of something. So we have to be very careful. There are a few cases of people ruining other peoples lives by accusing them, but most of the time, when somebody claims to be a rape victim and you have found DNA samples, probably it was indeed rape.
  - oldmanjay 11y ago
    Without getting into all the various ways the jury system fails in general, would it make sense to have a more professional jury for sexual crimes? I don't actually know what sort of training might be applicable here but I imagine it could ve more effective than 12 random citizens trying to process things they don't really understand.
    - rblatz 11y ago
      Professional juries sound good on the surface, but are really a bad idea when you get into how they actually work. How do you appoint these juries, and how do you measure their performance? If you elect them, they will invariably go tough on crime, and have a huge conflict of interest in finding people guilty. If you don't elect them and they are appointed who appoints them and how can you prevent the ultimate check on the state's power from being corrupted?
tehwalrus 11y ago
no, that is not the same thing. In a case where the two people have differing accounts of consent, and there is no other usable evidence, the person is found "not guilty" (not the same as innocent) because it cannot be proved. This is not the same thing as assuming consent, it is applying the principle of the law. Assuming consent is a much more insidious thing, which means actually disbelieving the victim on principal, because of the type of crime. This is not a problem in e.g. theft, because nobody assumes people want their stuff stolen.
- parennoob 11y ago
  > This is not a problem in e.g. theft, because nobody assumes people want their stuff stolen. This could actually be a huge problem if the thief is someone you know. Imagine you find some items missing from your house in the course of a normal day. You then go and tell the police that the potential suspects are your friends, your SO, and everyone else who was in your house. Do you think the police (in any country) will be serious about investigating your case?
DannoHung 11y ago
No one is necessarily accused before the processing of a rape kit. In fact, a rape kit may provide exonerating evidence of the accused. Don't be dense.
venomsnake 11y ago
> So the accused is innocent until proven guilty. And you don't want to live in a place where it is otherwise. To make things even more fun - most sexual acts are done on secluded places, so having a reliable witnesses is somewhat rare.
- A_COMPUTER 11y ago
  There used to also be a much stronger sense that approaching these consent issues would be creating legal regulation on the performance of the sex act. And it has. Affirmative consent people think there's no downside, but they are enabling this and the logical, only safe conclusion is ultimately documentation of consent and the sex act, both in writing and video, just like reactionaries warned us in the 1980's. Cellphone videos are already saving people. If you start regulating the private sex act, there's going to be strong incentive to make it not private anymore.