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[Draft] Rape Shield Act

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Separatist Peoples
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[Draft] Rape Shield Act

Postby Separatist Peoples » Fri Apr 12, 2019 10:09 am

Rape Shield Act
Regulation | Legal Reform


Lauding the trend among nations to enact protections for victims of sexual assault and abuse within their judicial procedures;

Concerned that not all nations have taken affirmative steps to protect those victims despite this progress;

Declaring that a victim's past sexual behavior is not a relevant or effective indicator of either their veracity or the likelihood of their consent to a specific sexual act; 

Disgusted that the accused may justify the exposition of a victim’s sexual history on the vile suggestion that the victim “asked for it;”

Demanding an end to this degrading and humiliating parade of a victim’s sexual history before a jury;

Further asserting that perpetrators of sexual violence against minors nearly always reoffend;

Believing that the risk of repeated harm is so high that past convictions are inherently relevant;

The World Assembly hereby enacts the following:

“Relevancy,” as it pertains to evidence, is the tendency of evidence to make an element of a crime more likely than not.

Member state courts may not admit opinion or reputation evidence detailing a victim’s past sexual behavior or proclivity in a criminal proceeding.

Member states may allow the admission of other evidence of the victim’s past sexual behavior or proclivity in a criminal proceeding only

to prove specific instances of a victim’s sexual behavior with the person accused of the sexual misconduct, if offered by the defendant to prove consent, or lack thereof, to the criminal act, or

to prove that the accused was not the source of injury, genetic material, or other physical evidence

provided that such evidence is relevant and particularized to discrete events.

Notwithstanding the above, member state courts must not admit relevant evidence of the victim’s past sexual behavior or proclivity that is substantially more prejudicial against the victim than it is probative to the satisfaction of the crime’s elements.

Member state courts must admit relevant evidence that the accused was convicted of prior sexual crimes against minors in any case involving criminal sexual misconduct. Such evidence is relevant if, in addition tending to make an element of a crime more likely than not, the past crimes were materially similar to the present accusation. When weighing materiality, courts must consider the victim’s age, sex, relation to the accused, the nature of the assault or molestation, and other factors that may show a preference or mode of operation.

Member states must create a judicial procedure for ruling on the admission of evidence subject to these provisions that allows both parties the opportunity to make a legal argument and receive a determination of admissibility out of the jury’s perception, to avoid engendering unfair prejudice. The party seeking to admit the evidence bears the burden to show that the evidence complies with this resolution or any evidentiary rules enacted to comply with this resolution.

Upon the victim’s request, member states must conceal the victim’s identity on all public documents. Member states may seal the record of proceedings involving testimony of a victim’s sexual behavior or proclivities upon the victim’s request, provided the record is available to all parties for subsequent appeals.







Ooc: I know the formatting is awful. I'm doing it via mobile, so ignore that for the next 6 hours? Then you can attack me for it.
Last edited by Separatist Peoples on Wed Sep 11, 2019 1:34 pm, edited 4 times in total.

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Postby The New Nordic Union » Fri Apr 12, 2019 10:19 am

OOC: Looks good at a first glance, something that caught my eye right away, however, was
Demanding an end to this degrading and humiliating parade of a victim’s sexual history before a jury;

Not all member nations use juries; this should be taken into account.
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Separatist Peoples
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Postby Separatist Peoples » Fri Apr 12, 2019 11:10 am

The New Nordic Union wrote:OOC: Looks good at a first glance, something that caught my eye right away, however, was
Demanding an end to this degrading and humiliating parade of a victim’s sexual history before a jury;

Not all member nations use juries; this should be taken into account.

"Its a prefatory clause, so I am not concerned with technical accuracy as much as rhetorical effect."

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Postby Sierra Lyricalia » Fri Apr 12, 2019 11:19 am

Uh... Psst... Legal Reform is an AoE of Regulation, and doesn't have strengths :hug:
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Separatist Peoples
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Postby Separatist Peoples » Fri Apr 12, 2019 11:39 am

Sierra Lyricalia wrote:Uh... Psst... Legal Reform is an AoE of Regulation, and doesn't have strengths :hug:

Ooc: B-b-b-brainfart!

I think I had intendedto put this into Civil Rights at first.
Last edited by Separatist Peoples on Fri Apr 12, 2019 11:39 am, edited 1 time in total.

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Postby The New Nordic Union » Fri Apr 12, 2019 1:58 pm

Separatist Peoples wrote:
The New Nordic Union wrote:OOC: Looks good at a first glance, something that caught my eye right away, however, was

Not all member nations use juries; this should be taken into account.

"Its a prefatory clause, so I am not concerned with technical accuracy as much as rhetorical effect."


'In your penultimate paragraph, you also refer to juries. Maybe you want to reconsider that instance.'
Last edited by The New Nordic Union on Fri Apr 12, 2019 1:58 pm, edited 1 time in total.
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Separatist Peoples
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Postby Separatist Peoples » Fri Apr 12, 2019 2:02 pm

The New Nordic Union wrote:
Separatist Peoples wrote:"Its a prefatory clause, so I am not concerned with technical accuracy as much as rhetorical effect."


'In your penultimate paragraph, you also refer to juries. Maybe you want to reconsider that instance.'


"Well, it could hardly say something else. Assuming your fact-finder is a judge, then you can't very well get rulings with the judge sequestered. This is pedantry for pedantry's sake."
Last edited by Separatist Peoples on Fri Apr 12, 2019 2:03 pm, edited 1 time in total.

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Postby The New Nordic Union » Fri Apr 12, 2019 2:08 pm

Separatist Peoples wrote:"Well, it could hardly say something else. Assuming your fact-finder is a judge, then you can't very well get rulings with the judge sequestered. This is pedantry for pedantry's sake."


'One could provide for one chamber to try the case, and another to be heard for questions of admissabilty... but we acknowledge your argument of over-pedantry and will pursue the matter no longer. It was but a minor nuisance to us in an otherwise well thought-out proposal, anyway. You have our support in the matter.'
Last edited by The New Nordic Union on Fri Apr 12, 2019 2:09 pm, edited 1 time in total.
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Postby Araraukar » Fri Apr 12, 2019 2:43 pm

Separatist Peoples wrote:"Well, it could hardly say something else. Assuming your fact-finder is a judge, then you can't very well get rulings with the judge sequestered. This is pedantry for pedantry's sake."

OOC: Not really pedantry when juries aren't a universal thing (especially ones made up of laymen) and you're basing mandates on their existence. Like, do nations that don't use juries, still need to create that thingy if there's no need for it? Maybe you could put somewhere something about "jury, if the judicial system uses one"?

On the "Member state courts must admit relevant evidence that the accused was convicted of prior sexual crimes against minors." bit - shouldn't it be "if the accused was convicted"? Or possibly "courts must admit as relevant evidence". And shouldn't that only come out if the victim was underage too? Or should all criminal records - both for victim and accused - be aired freely? I mean, if they're publicly available and all...

Also...
Upon the victim’s request, member states must conceal the victim’s identity on all public documents.

Why? And can they do that to the accused too? Especially if they're found not guilty? If the accused is found not guilty, can the victim's name then appear on the records as normal?
Last edited by Araraukar on Fri Apr 12, 2019 2:44 pm, edited 1 time in total.
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Postby Separatist Peoples » Fri Apr 12, 2019 2:57 pm

Araraukar wrote:
Separatist Peoples wrote:"Well, it could hardly say something else. Assuming your fact-finder is a judge, then you can't very well get rulings with the judge sequestered. This is pedantry for pedantry's sake."

OOC: Not really pedantry when juries aren't a universal thing (especially ones made up of laymen) and you're basing mandates on their existence. Like, do nations that don't use juries, still need to create that thingy if there's no need for it? Maybe you could put somewhere something about "jury, if the judicial system uses one"?

OOC: No, it is pedantry. Either a nation uses a jury, even if the use of that term is so loose as to mean any fact-finder who is not the judge, and therefore it applies, or the nation does not, in which case the fact-finder is almost undeniably the presiding judge. Since the judge cannot be sequestered from an evidentiary hearing that they must preside over, the dispute is only pedantic.

On the "Member state courts must admit relevant evidence that the accused was convicted of prior sexual crimes against minors." bit - shouldn't it be "if the accused was convicted"?

OOC: It seems unnecessary. If you were not convicted, no such evidence exists.

Or possibly "courts must admit as relevant evidence".

OOC: No. You could break that clause down into two parts: courts must admit the evidence, and that evidence must be relevant. I just shorten it.

And shouldn't that only come out if the victim was underage too? Or should all criminal records - both for victim and accused - be aired freely? I mean, if they're publicly available and all...

OOC: This is a good point. I should clarify that this rule exists for accusations of child molesting only.

As for the records, even if criminal records are not public, they are certainly discoverable in a trial setting. The exhibits and testimony in a trial are not necessarily public. So the lack of publicity shouldn't be an issue.
Also...
Upon the victim’s request, member states must conceal the victim’s identity on all public documents.

Why? And can they do that to the accused too? Especially if they're found not guilty? If the accused is found not guilty, can the victim's name then appear on the records as normal?

OOC: The victim of sexual assault is generally embarrassed of the process, and in more religious jurisdictions, can face serious persecution for being the victim. So, we protect them out of respect for their privacy. This is especially the case for victims of child sexual abuse, because they were minors when it happened and we treat the identity of minors as sacrosanct in most places.

I am not sure what you mean about the accused doing that, too. If you are asking whether the accused may ask for anonymity, then I would say that it is not required by these provisions. But I guess you could do so. I'm not sure why you would, since there is value in the public knowing what the judiciary does, but I can certainly see a state interest in restricting some of that information.

I don't see why the victim couldn't request anonymity even without a conviction. The idea is to protect them so they are willing to report the crime, and removing that protection if the case doesn't succeed won't have the encouraging effect.

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Postby United Massachusetts » Fri Apr 12, 2019 3:30 pm

Yeah, this is good. For.
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Postby Araraukar » Fri Apr 12, 2019 3:34 pm

Separatist Peoples wrote:OOC: No, it is pedantry. Either a nation uses a jury, even if the use of that term is so loose as to mean any fact-finder who is not the judge, and therefore it applies, or the nation does not, in which case the fact-finder is almost undeniably the presiding judge. Since the judge cannot be sequestered from an evidentiary hearing that they must preside over, the dispute is only pedantic.

OOC: So, I repeat:
Araraukar wrote:do nations that don't use juries, still need to create that thingy if there's no need for it?

Because right now it says "Member states must create a judicial procedure for [this]". It doesn't say "unless you don't use juries".

OOC: No. You could break that clause down into two parts: courts must admit the evidence, and that evidence must be relevant. I just shorten it.

You're not so close to the word limit that you couldn't write it out like that, though. :P

OOC: The victim of sexual assault is generally embarrassed of the process, and in more religious jurisdictions, can face serious persecution for being the victim. So, we protect them out of respect for their privacy. This is especially the case for victims of child sexual abuse, because they were minors when it happened and we treat the identity of minors as sacrosanct in most places.

For minors I would think it would make sense to strike their names out of public records regardless of if they were the accused or accuser, and whether or not the topic was sexual assault. Also, rather than let societal fucked-upness continue with the force of WA law, it should instead be made criminal for uninvolved parties to use being raped as grounds for discrimination of any kind.

I am not sure what you mean about the accused doing that, too. If you are asking whether the accused may ask for anonymity, then I would say that it is not required by these provisions. But I guess you could do so. I'm not sure why you would, since there is value in the public knowing what the judiciary does, but I can certainly see a state interest in restricting some of that information.

Yeah, I should have specified that the "they" in there meant "whoever censors the victim's name". Since if the victim is protected as they might get a bad reputation and get harassed, etc., certainly that's true for the accused as well?

I don't see why the victim couldn't request anonymity even without a conviction.

But what if the former accused wants to sue them (in systems where that's possible) for falsely accusing them? Or whatever the correct legal term is for doing that. Besmirching their honor and all that. Surely the records of the court proceedings should then have the victim's name on them, if they were used as evidence? I mean, like, I get it that the general public shouldn't find out in societies that are fucked up enough to blame the victim, but when it comes to actual formal record? Even in real life the uncensored records must exist somewhere, with just restricted access to them.

That reminds me, can the fact that the accuser has accused someone else before for the same crime be used as evidence against them?
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Postby Separatist Peoples » Fri Apr 12, 2019 4:36 pm

Araraukar wrote:
Separatist Peoples wrote:OOC: No, it is pedantry. Either a nation uses a jury, even if the use of that term is so loose as to mean any fact-finder who is not the judge, and therefore it applies, or the nation does not, in which case the fact-finder is almost undeniably the presiding judge. Since the judge cannot be sequestered from an evidentiary hearing that they must preside over, the dispute is only pedantic.

OOC: So, I repeat:
Araraukar wrote:do nations that don't use juries, still need to create that thingy if there's no need for it?

Because right now it says "Member states must create a judicial procedure for [this]". It doesn't say "unless you don't use juries".

OOC: But if you don't use juries, then not making the procedure isn't noncompliance.

You're not so close to the word limit that you couldn't write it out like that, though. :P

OOC: No, but brevity is preferred where possible.

For minors I would think it would make sense to strike their names out of public records regardless of if they were the accused or accuser, and whether or not the topic was sexual assault. Also, rather than let societal fucked-upness continue with the force of WA law, it should instead be made criminal for uninvolved parties to use being raped as grounds for discrimination of any kind.

OOC: I had not thought of minors who commit sexual assault. I think that is a policy best left to member states.

There is a measure of practicality involved here. Sure, the status of being raped, or even the status of being a confirmed non-married, non-virgin woman, isn't one that should be subject to discrimination. And it probably isn't under CoCR. But regulating social behavior independent of government or even business interactions is...difficult.

For example, there are many places where the victim of rape would struggle to find a spouse or could be shunned by friends and family. Thats not something the WA can address without having Social Thought Police. So, you see why I would rather leave that to member states at this juncture.

Yeah, I should have specified that the "they" in there meant "whoever censors the victim's name". Since if the victim is protected as they might get a bad reputation and get harassed, etc., certainly that's true for the accused as well?

OOC: Probably. But there is a competing state interest in having the accused face public trial for the purposes of transparency. The victim's identity doesn't satisfy that interest, but the accused, as a party to the trial, does. Because that is a balancing of interests between the two, I felt it safer to leave that to member states as well.

I
But what if the former accused wants to sue them (in systems where that's possible) for falsely accusing them? Or whatever the correct legal term is for doing that. Besmirching their honor and all that. Surely the records of the court proceedings should then have the victim's name on them, if they were used as evidence? I mean, like, I get it that the general public shouldn't find out in societies that are fucked up enough to blame the victim, but when it comes to actual formal record? Even in real life the uncensored records must exist somewhere, with just restricted access to them.


OOC: So, at least in the US system, you don't need access to the public record to do that. The accused still knows the identity of his (lets face it, its 99.999% always a he, and I'm not fiddling with 'they') accuser, and can still bring civil suit against them. The public record does not identify the victim, but the victim is nonetheless identifiable by the court system and the accuser to the extent that it is necessary to connect the two.

Generally, that there is a police report (generally nonpublic) would be sufficient rather than needing the entirety of the trial record. That, rather than a criminal trial conducted by the state, would be the false accusation.

That reminds me, can the fact that the accuser has accused someone else before for the same crime be used as evidence against them?

OOC: No, the only evidence covered are convictions.

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Postby Wallenburg » Fri Apr 12, 2019 6:42 pm

Separatist Peoples wrote:OOC: But if you don't use juries, then not making the procedure isn't noncompliance.

No, it would be noncompliance. The clause mandates the judicial procedure as described. It doesn't say anywhere that it only applies to member states that use juries.
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Postby Separatist Peoples » Fri Apr 12, 2019 6:51 pm

Wallenburg wrote:
Separatist Peoples wrote:OOC: But if you don't use juries, then not making the procedure isn't noncompliance.

No, it would be noncompliance. The clause mandates the judicial procedure as described. It doesn't say anywhere that it only applies to member states that use juries.

OOC: Any procedure would keep such discussions away from a jury if the jury never existed. So any procedure is sufficient to comply if you have no jury. Including preexisting procedure.
Last edited by Separatist Peoples on Fri Apr 12, 2019 6:53 pm, edited 1 time in total.

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Postby Separatist Peoples » Sat Apr 13, 2019 7:30 am

OOC: Ok, formatting repaired.

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Postby Araraukar » Sat Apr 13, 2019 9:05 am

Separatist Peoples wrote:
Wallenburg wrote:No, it would be noncompliance. The clause mandates the judicial procedure as described. It doesn't say anywhere that it only applies to member states that use juries.

OOC: Any procedure would keep such discussions away from a jury if the jury never existed. So any procedure is sufficient to comply if you have no jury. Including preexisting procedure.

OOC: I've had this debate before (albeit in TGs), and at least some other people believe that regardless of if you have Thing X, if the WA mandates that you make something directly related to Thing X (like appoint an inspector of a thing), then you have to make it, whether or not it'll have anything to do after being created. EDIT: I'll get more replies on the earlier bits later, when I have more time to think. You and IA especially keep insisting that things be created and applied whether or not they're at all applicable...
Last edited by Araraukar on Sat Apr 13, 2019 9:08 am, edited 2 times in total.
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Postby Separatist Peoples » Sat Apr 13, 2019 9:24 am

Araraukar wrote:
Separatist Peoples wrote:OOC: Any procedure would keep such discussions away from a jury if the jury never existed. So any procedure is sufficient to comply if you have no jury. Including preexisting procedure.

OOC: I've had this debate before (albeit in TGs), and at least some other people believe that regardless of if you have Thing X, if the WA mandates that you make something directly related to Thing X (like appoint an inspector of a thing), then you have to make it, whether or not it'll have anything to do after being created. EDIT: I'll get more replies on the earlier bits later, when I have more time to think. You and IA especially keep insisting that things be created and applied whether or not they're at all applicable...

Ooc: I mean, you can take a deliberately frustrating interpretation if you want, but that's on you.
Last edited by Separatist Peoples on Mon Apr 15, 2019 4:43 am, edited 1 time in total.

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Postby Separatist Peoples » Mon Apr 15, 2019 5:13 am

Ooc: ok, cool, so other than a dispute about interpreting compliance, this is perfect?

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Postby Marxist Germany » Mon Apr 15, 2019 6:04 am

Separatist Peoples wrote:Ooc: ok, cool, so other than a dispute about interpreting compliance, this is perfect?

OOC:Yes
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Postby Kenmoria » Mon Apr 15, 2019 6:09 am

Separatist Peoples wrote:Ooc: ok, cool, so other than a dispute about interpreting compliance, this is perfect?

(OOC: Yes, there aren’t any changes I can see that could objectively improve this.)
A representative democracy with a parliament of 535 seats
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Not in the WA despite coincidentally following nearly all resolutions
This is due to a problem with how the WA contradicts democracy
However we do have a WA mission and often participate in drafting
Current ambassador: James Lewitt

For more information, read the factbooks here.

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Separatist Peoples
GA Secretariat
 
Posts: 14401
Founded: Feb 17, 2011
Civil Rights Lovefest

Postby Separatist Peoples » Mon Apr 15, 2019 6:44 am

Marxist Germany wrote:
Separatist Peoples wrote:Ooc: ok, cool, so other than a dispute about interpreting compliance, this is perfect?

OOC:Yes
Kenmoria wrote:
Separatist Peoples wrote:Ooc: ok, cool, so other than a dispute about interpreting compliance, this is perfect?

(OOC: Yes, there aren’t any changes I can see that could objectively improve this.)



OOC: I don't believe you.

His Worshipfulness Lord GA Secretariat,
Authority on All Existence,
Globalist Dog,
Dark Psychic Vampire, and
Chief Populist Elitist!


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Marxist Germany
Ambassador
 
Posts: 1073
Founded: Jun 07, 2018
Corporate Bordello

Postby Marxist Germany » Mon Apr 15, 2019 8:04 am

Separatist Peoples wrote:
Marxist Germany wrote:OOC:Yes
Kenmoria wrote:(OOC: Yes, there aren’t any changes I can see that could objectively improve this.)



OOC: I don't believe you.

OOC:You should believe us.
Country represents RL views mostly. Not Marxist anymore.
Author of GA#461

Ex-delegate of The United Federations; citizen of 10000 Islands | Gaming User#0721(Discord)
RP name: Germany
The National Factbook (WIP)
Ambassador Klaus Schmidt
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Pro:Laissez-faire, Nationalism, Guns, Free speech, Christianity, Same-sex marriage, United Ireland.
Anti:Extreme Progressivism, Abortion, Socialism, Interventionism, Mass-migration.
A high school student aged 15 from Ireland, living in Co. Dublin. Interested in politics, gaming, and history.

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