[Draft] Rape Shield Act

[Kenmoria]

OOC:Yes

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

OOC: I don't believe you.

(OOC: I said that I couldn’t ‘see’ any changes to improve the draft, and I couldn’t then. Now I notice that your second and third clauses appear to self-contradict. Opinion can be evidence, as the opinions of witnesses as to what they witnessed form the base of many convictions, so I can’t see how you deal with both disallowing unconditionally certain types of evidence, then allowing them in specific circumstances.)

[Separatist Peoples]

OOC: I don't believe you.

(OOC: I said that I couldn’t ‘see’ any changes to improve the draft, and I couldn’t then. Now I notice that your second and third clauses appear to self-contradict. Opinion can be evidence, as the opinions of witnesses as to what they witnessed form the base of many convictions, so I can’t see how you deal with both disallowing unconditionally certain types of evidence, then allowing them in specific circumstances.)

Ooc: aha! I told you I didn't believe you!

Reputation and opinion evidence is different than direct testimony. The former involves asking the witness of an opinion or essentially of hearsay. The latter asks after information the witness has experienced directly. For example, if you have Victim X, Accused Y, and Witness W, you could not ask W to testify if he had heard that X and Y were intimate. But you could ask if W had ever seen X and Y being intimate, or probably even if X or Y had told them so, subject to limitations on hearsay. The latter isnt a question of opinion or reputation but of personal knowledge.

[Araraukar]

OOC: A further question about this:

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.

...if someone has rough sex with seventeen guys during one weekend, and then claims one of them didn't have their consent and thus it was a rape - can the "they slept with sixteen others and had rough sex" be admitted as relevant, or is it "substantially more prejudicial"? Like, where does the line go? Someone's always going to be prejudiced against any kind of sexual activity, and if it's actually properly relevant (such as "most of the injuries were consensually produced and were not caused by the accused"), why should it be dismissed as evidence simply because someone - or even the society in general - might tut-tut at it?

The whole clause reads as putting some weird sense of morality above factual evidence. Like why do you make it okay to throw out relevant evidence because of the opinion of some nebulous general public or jury member or something like that?

[Separatist Peoples]

OOC: A further question about this:

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.

...if someone has rough sex with seventeen guys during one weekend, and then claims one of them didn't have their consent and thus it was a rape - can the "they slept with sixteen others and had rough sex" be admitted as relevant, or is it "substantially more prejudicial"? Like, where does the line go? Someone's always going to be prejudiced against any kind of sexual activity, and if it's actually properly relevant (such as "most of the injuries were consensually produced and were not caused by the accused"), why should it be dismissed as evidence simply because someone - or even the society in general - might tut-tut at it?

The whole clause reads as putting some weird sense of morality above factual evidence.

Ooc: Reputation and opinion evidence is different than direct testimony.
*snip*
The latter isnt a question of opinion or reputation but of personal knowledge.

So why do you make it okay to throw out relevant evidence because of the opinion of some nebulous general public or jury or something like that?

Ooc: so, in your scenario, is one person having 17 separate sexual encounters, or is this an orgy? That makes a difference.

That the victim was promiscuous doesn't make the issue of consent more or less likely. If the victim was a member of an orgy, one can probably fall under the exception to prove consent based on participation in a joint venture. If everybody agrees to have an orgy and nobody refuses Steve's participation, theres a question of genuine fact as to whether the victim consented in some jurisdictions.

The question of prejudice isnt one of societal sexual prejudice. It's a little more broad. In evidence, prejudice is extraneous information that will compromise a jury's decision making. For example, in a trial about assault, introducing the accused's prior history committing tax fraud risks the jury making a decision to punish them for tax fraud and not the crime they are on trial for.

In this case, whether something is more probative than prejudicial is a judgment call for judges. They have a standard, but they have to make that call. Theres really no better way for it.

[Araraukar]

The question of prejudice isnt one of societal sexual prejudice. It's a little more broad. In evidence, prejudice is extraneous information that will compromise a jury's decision making. For example, in a trial about assault, introducing the accused's prior history committing tax fraud risks the jury making a decision to punish them for tax fraud and not the crime they are on trial for.

In this case, whether something is more probative than prejudicial is a judgment call for judges. They have a standard, but they have to make that call. Theres really no better way for it.

OOC: Sexual activities are a bit more relevant to a case of sexual assault than tax fraud is to physical assault, but if the judge is allowed to make the decision on relevance, then no further objections. It's just not very obvious from the text that the judge(s) involved in the case can make that decision.

[Separatist Peoples]

The question of prejudice isnt one of societal sexual prejudice. It's a little more broad. In evidence, prejudice is extraneous information that will compromise a jury's decision making. For example, in a trial about assault, introducing the accused's prior history committing tax fraud risks the jury making a decision to punish them for tax fraud and not the crime they are on trial for.

In this case, whether something is more probative than prejudicial is a judgment call for judges. They have a standard, but they have to make that call. Theres really no better way for it.

OOC: Sexual activities are a bit more relevant to a case of sexual assault than tax fraud is to physical assault, but if the judge is allowed to make the decision on relevance, then no further objections. It's just not very obvious from the text that the judge(s) involved in the case can make that decision.

OOC: You're right that its more relevant in that it is logically connected to the topic. Relevancy alone is really, really broad. But this law seeks to prevent things like defendants arguing that "she bangs everybody" as character evidence to either
1. make the prosecution of justice as painful as possible to victims to disincentivize victims
2. try to get the jury to find Not Guilty based on their sense of the victim as a "bad person"
3. argue promiscuity suggests consent

Because in many, many places, jury deliberations are sealed, there is a risk that should evidence that as a matter of policy is irrelevant reaches them, then you can't tell them to disregard it and trust that they can do so.

[Araraukar]

OOC: Is there any way to make it more obvious in the proposal text that the judge(s) involved in the case have the power to decide on what's relevant enough to be admitted, without being damaging to the case?

[Separatist Peoples]

OOC: Is there any way to make it more obvious in the proposal text that the judge(s) involved in the case have the power to decide on what's relevant enough to be admitted, without being damaging to the case?

OOC: I could state it explicitly, but I'm not sure I have to. I can't imagine any system where the judge isn't given discretion over trial evidence. It seems almost essential: the judge controls the courtroom, and literally has to be the arbiter of evidence as a matter of law.

Even if you've a system that isn't like a US trial court, you've a decision-making entity who weighs, if nothing else, the law. Maybe its one person, maybe its many, but they're the gatekeepers. Maybe they're also finders of fact, in which case it doesn't matter. If they aren't though, they have to have some discretion, or you'd have a system devoted to pageantry and not justice. I don't think thats very likely.

I am sympathetic to your concern, Ara, really I am. But I'm not sure why that inclusion is necessary without supposing a system where that doesn't exist, and therefore a system which cannot work.

[Araraukar]

OOC: I could state it explicitly, but I'm not sure I have to. I can't imagine any system where the judge isn't given discretion over trial evidence. It seems almost essential: the judge controls the courtroom, and literally has to be the arbiter of evidence as a matter of law.
*snip*
I am sympathetic to your concern, Ara, really I am. But I'm not sure why that inclusion is necessary without supposing a system where that doesn't exist, and therefore a system which cannot work.

OOC: Yeah, but in real life we don't have an international institution of this kind that can actually affect a judge's discretion and power to decide things in the courtroom - and then fine the nation if it thinks the nation's not making sure the international law is followed. You define relevancy. Why not use that to say that the court in question has the right to decide the relevancy of evidence (within the guidelines you set)?

Because as is, it very much reads like the WA decides what's relevant and what's not, instead of the judge/court. And the WA is very much a blunt instrument that shouldn't be applied so broadly.

[Imperium Anglorum]

Because as is, it very much reads like the WA decides what's relevant and what's not, instead of the judge/court. And the WA is very much a blunt instrument that shouldn't be applied so broadly.

How does this square with the dogma that committees are perfect?

[Imperium Anglorum]

You've got a really long preamble. It might be useful to shorten it down a bit, or to combine some of the clauses together. — I believe that the enacting clause in most legislatures is "as follows", but eh, I might be Anglocentric and this is minor. Also, I don't yet see the promised reformatting. Shame :bell: !

Do you mean "reputational evidence" in section 2? The word "probative" is unlikely to be understood by the lay public, it may draw ire. Similarly, I can see how Ara sees some sort of common-law centric view here, although it is quite obvious that if one's courts lack a jury, it is obviously outside of the jury's perception. :thinking:

Regarding the last section, could you provide for the victim's request for a seal to be rescinded?

[Araraukar]

Because as is, it very much reads like the WA decides what's relevant and what's not, instead of the judge/court. And the WA is very much a blunt instrument that shouldn't be applied so broadly.

How does this square with the dogma that committees are perfect?

OOC: *re-checks the proposal* No committee is used...?

[Kenmoria]

“I believe there should be a ‘to’ before ‘tending’ and after ‘addition’ in your antepenultimate clause.”

[Imperium Anglorum]

How does this square with the dogma that committees are perfect?

OOC: *re-checks the proposal* No committee is used...?

It's a response to the claim that the WA is a blunt instrument. That's necessarily mutually exclusive with committees being perfect, because you can set up the committee to any level of specificity.

[Tinfect]

It's a response to the claim that the WA is a blunt instrument. That's necessarily mutually exclusive with committees being perfect, because you can set up the committee to any level of specificity.

OOC:
This is nonsense, IA. The WA is an interminable international bureaucracy. It's a blunt instrument however you look at it.

[Kenmoria]

“The last clause worries me slightly if the public documents have already been released, and the apparent victim asks for his or her name to be kept concealed afterwards. How is a government supposed to accomplish this? I suggest limiting this to only be mandated before anything is released to the press, to avoid creating an impossible situation for the governments of member states.”

[Separatist Peoples]

“The last clause worries me slightly if the public documents have already been released, and the apparent victim asks for his or her name to be kept concealed afterwards. How is a government supposed to accomplish this? I suggest limiting this to only be mandated before anything is released to the press, to avoid creating an impossible situation for the governments of member states.”

Ooc: there isnt an obligation for member states to claw back information if the victim sleeps on their rights, so I think the issue is moot. Victims will either make the request on time, or suffer the consequences of their delay.

[Araraukar]

It's a response to the claim that the WA is a blunt instrument. That's necessarily mutually exclusive with committees being perfect, because you can set up the committee to any level of specificity.

OOC: I always object giving to committees any tasks that should be done by the nations themselves, and to giving committees unrestricted rights to make decisions on behalf of the states. So at least I'm consistent with my hatred of using WA as a blunt instrument in delicate operations.

The one committee I believe to be completely faulty and corrupted by necessity, is the compliance enforcement one.

[Imperium Anglorum]

OOC:
This is nonsense, IA. The WA is an interminable international bureaucracy. It's a blunt instrument however you look at it.

My claim is that: X and Y are mutually exclusive, where X is the WA is a blunt instrument and Y is committees are perfect. Your response calling my claim nonsense, is a restatement of the reasons for why they are mutually exclusive.

The one committee I believe to be completely faulty and corrupted by necessity, is the compliance enforcement one.

Is this in exclusion to other committees? Because I vaguely recall your telling some noobs once that committees are taken as perfect (perhaps those more familiar with late Catholic theology would find the term Papal infallibility a useful analogue). Is that not the case?

[Araraukar]

*snip*

OOC: Not going to participate this threadjack on this thread, thank you very much. If you really want to discuss, TG me. Or if you want to discuss on the forum, maybe create a discussion thread?

[Separatist Peoples]

Ooc: its not a threadjack. Its directly relevant to a potential edit.

[Kenmoria]

“Could you clarify ‘member state courts’? Does this refer to any courts within the territory of a member state, or does it instead only refer to governmental courts run by member states?”

[Separatist Peoples]

“Could you clarify ‘member state courts’? Does this refer to any courts within the territory of a member state, or does it instead only refer to governmental courts run by member states?”

"All courts. Its a broad phrase unnarrowed by anything, like "national" or "local" so it must apply to all courts."

[Araraukar]

Ooc: its not a threadjack. Its directly relevant to a potential edit.

OOC: Well in that case yes, the WA committees are, by necessity of being staffed by "gnomes" incorruptible (aside from the compliance enforcement one ) insofar as the WA nations are concerned. Are they infallible? In my personal opinion, no, nothing is infallible. Errors are always possible whenever there are choices to be made, and the more complex the dataset on which the choices are based on, the likelier the error. That still does not mean that committees should be treated as error-prone in resolution text. There are a lot of things we have to account for, that aren't things we can or should put in a resolution. This is the same issue as national compliance, at the basics. And it's why I was and still am (and thus firmly believe that the committee in question is the only one that's snoozing on the job, corrupted to the root and thus can be ignored in IC, because that's the only way it makes any sense) against trying to mandate compliance via a resolution, because we can't affect people's RP once they leave this forum. Even here we can basically just scoff at people who ignore the GA RP conventions. So why make compliance harder by making it actually "magical" with a committee?

None of that absolves the committees and WA in general being "one size fits all" blunt instruments. And yes, even if you wrote in something about the WA committee interviewing every single witness and reviewing every piece of evidence (at which point, to be fair, I'd complain about micromanagement and wasting WA money ), as long as the thing that makes the decision is a committee that is international and handles the affairs of 20k+ nations at the same time, it's not going to have the same "touch" and understanding that a national thing (in this case the judge involved in the trial) would have, simply because of scale. And yes I know nations can be really big too with tens of billions of people and several solar systems and whatnot, but in most cases the nations are aware of this and can scale things down fairly easily. The WA is not, due to its nature, similarly "self-aware", nor will it be in any way influenced by a court-case going horribly wrong because of a tiny error somewhere, whereas the fallout from that on national level can be nothing short of a government-toppling.

That's the "safety valve" on national level; if you fuck something up, you'll have to live with your decision, and realistically speaking it would have consequences - if not legal, then at least personal (reputation etc.). Whereas the WA gnomes, due to not being part of the nation, not being part of the system that they make decisions for, not having to deal with the consequences and, yes, because they're considered infallible by necessity, being untouchable no matter what errors they make.

tl:dr; So if you were considering to make a committee make judgements instead of the judge, don't. I was asking for the clarification for the judge having the power to accept or dismiss relevancy of evidence exactly to avoid needing any silly committee wrangling.

[Separatist Peoples]

Ooc: good, then since I use no committee, the problem self-resolves.