[Draft] Rape Shield Act

[Araraukar]

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

OOC: Yeah, as soon as you spell it out that it's the judge(s) decision, not the WA's. It currently reads like it's either the WA's decision or to be decided on some nebulous public opinion of prejudice.

[Separatist Peoples]

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

OOC: Yeah, as soon as you spell it out that it's the judge(s) decision, not the WA's. It currently reads like it's either the WA's decision or to be decided on some nebulous public opinion of prejudice.

OOC: I don't believe that is a reasonable interpretation of the reading.

[Araraukar]

OOC: I don't believe that is a reasonable interpretation of the reading.

OOC: You have yourself admitted that legal concept of prejudice differs from how the word is normally understood. It's not unreasonable to read the text the way words are normally understood, and "substantially more prejudicial against the victim than [good for the case]" doesn't exactly use any words that had specific meanings of the kind you mean.

Why is it so difficult to add "with evidence relevancy being decided by the preciding judge" to the clause?

[Separatist Peoples]

OOC: I don't believe that is a reasonable interpretation of the reading.

OOC: You have yourself admitted that legal concept of prejudice differs from how the word is normally understood. It's not unreasonable to read the text the way words are normally understood, and "substantially more prejudicial against the victim than [good for the case]" doesn't exactly use any words that had specific meanings of the kind you mean.

Why is it so difficult to add "with evidence relevancy being decided by the preciding judge" to the clause?

Ooc: it's very easy to add them. But, if I allow unreasonable perversions of easily understood concepts to dictate when I clarify something, I will be engaging in exactly the kind of reactive drafting we tell new players to avoid.

There is a clear, reasonable interpretation. There is an unreasonable interpretation unsupported by anything in the text. If a player wants to accept an unreasonable interpretation harmful to their position, that is all well and good for them.

So, on principal, I see no reason to make an easy correction, not because it is difficult, but because it isnt necessary.

[Araraukar]

There is an unreasonable interpretation unsupported by anything in the text.

OOC: Unsupported by anything but the actual wording of the text, you mean? The resolution only does what the resolution says it does. It doesn't say anything about having to apply a rare legalistic approach to the word "prejudice". Also, reactive drafting does not include making your wording clearer and you know it.

[Separatist Peoples]

There is an unreasonable interpretation unsupported by anything in the text.

OOC: Unsupported by anything but the actual wording of the text, you mean? The resolution only does what the resolution says it does. It doesn't say anything about having to apply a rare legalistic approach to the word "prejudice". Also, reactive drafting does not include making your wording clearer and you know it.

Ooc: nations interpret laws reasonably in an IC fashion, not an OOC fashion as players. thus, member legal systems will understand the legal meaning. So sayeth the Author.

[Araraukar]

Ooc: So sayeth the Author.

OOC: Why did you even post it here then if that's your attitude?

IC: "Since legal prejudice is not specified, no such evidence needs to be excluded, then, if the society at large does not view, say, promiscuity or rough sex as a bad thing. Handy, though I must say I never thought you would be one to push for such a law, ambassador Bell."

OOC: And I won't be posting more from this thing until I find a way to turn off Finnish autocorrection!

[Separatist Peoples]

Ooc: So sayeth the Author.

OOC: Why did you even post it here then if that's your attitude?
OOC: Because if I don't, people complain. Simply because I must solicit input does not mean I am obligated to accept it all. In this case, I admitted that you had a salient point but decided, upon reasoned review, not to make that change. I did so after hearing you out and with clear reasoning. I didn't ignore you or reject it out of hand. In fact, I waited until our discussion became recursive to put my foot down on the issue. As far as I can tell, that is well within the appropriate behavior of authors here. So, other than you not getting your way, I am not sure what the issue actually is.

[Araraukar]

OOC: I am not sure what the issue actually is.

OOC: Well if you don't mind having the loophole in it that makes one of the restrictions obsolent, then I guess nothing. *shrug*

[The Land of the Ephyral]

"If the criminal history of the accused may be utilised as evidence for the fact they committed the crime in question, then the sexual history of the alleged victim is no less indicative of behaviour and should be assessed to shed light on the alleged victim as an individual.

"To establish that a rape took place requires evidence against the accused, not lack of evidence against the accusor. To then suggest the dismissal of knowledge which may factor into the likelihood the incident took place is counter-justice." - Sphere of External Affairs and Sphere of Justice

[Separatist Peoples]

OOC: I am not sure what the issue actually is.

OOC: Well if you don't mind having the loophole in it that makes one of the restrictions obsolent, then I guess nothing. *shrug*

Ooc: I've made it clear that I dont think that loophole is remotely reasonable to claim in good faith. I believe that using it violates GAR#2. Use of the word prejudice on the context of evidence law is neither rare nor legalistic. Nor is the assumption that the entity ruling on evidence is doing so as a matter of law. These are foundational concepts of law present in basically every single legal system that considers and excludes evidence.

"If the criminal history of the accused may be utilised as evidence for the fact they committed the crime in question, then the sexual history of the alleged victim is no less indicative of behaviour and should be assessed to shed light on the alleged victim as an individual.

"To establish that a rape took place requires evidence against the accused, not lack of evidence against the accusor. To then suggest the dismissal of knowledge which may factor into the likelihood the incident took place is counter-justice." - Sphere of External Affairs and Sphere of Justice

"What, praytell, does the sexual history of a victim of sexual assault have to do with their status as a victim of sexual assault? This implies that promiscuity is somehow relevant to the question of consent to sex."

[The Land of the Ephyral]

OOC: Well if you don't mind having the loophole in it that makes one of the restrictions obsolent, then I guess nothing. *shrug*

Ooc: I've made it clear that I dont think that loophole is remotely reasonable to claim in good faith. I believe that using it violates GAR#2. Use of the word prejudice on the context of evidence law is neither rare nor legalistic. Nor is the assumption that the entity ruling on evidence is doing so as a matter of law. These are foundational concepts of law present in basically every single legal system that considers and excludes evidence.

"If the criminal history of the accused may be utilised as evidence for the fact they committed the crime in question, then the sexual history of the alleged victim is no less indicative of behaviour and should be assessed to shed light on the alleged victim as an individual.

"To establish that a rape took place requires evidence against the accused, not lack of evidence against the accusor. To then suggest the dismissal of knowledge which may factor into the likelihood the incident took place is counter-justice." - Sphere of External Affairs and Sphere of Justice

"What, praytell, does the sexual history of a victim of sexual assault have to do with their status as a victim of sexual assault? This implies that promiscuity is somehow relevant to the question of consent to sex."

"An implication not devoid of realism. If someone is by their very nature promiscuous, more willing to consent to a larger amount of people on a daily, weekly, monthly, or annualised basis, then the likelihood of their sexual assault is diminished by sheer probability that they would consent in the first place."

[Separatist Peoples]

Ooc: I've made it clear that I dont think that loophole is remotely reasonable to claim in good faith. I believe that using it violates GAR#2. Use of the word prejudice on the context of evidence law is neither rare nor legalistic. Nor is the assumption that the entity ruling on evidence is doing so as a matter of law. These are foundational concepts of law present in basically every single legal system that considers and excludes evidence.



"What, praytell, does the sexual history of a victim of sexual assault have to do with their status as a victim of sexual assault? This implies that promiscuity is somehow relevant to the question of consent to sex."

"An implication not devoid of realism. If someone is by their very nature promiscuous, more willing to consent to a larger amount of people on a daily, weekly, monthly, or annualised basis, then the likelihood of their sexual assault is diminished by sheer probability that they would consent in the first place."

"Except consent is not a question of likelihood. Consent is a question of presence or absence. That one is promiscuous does not make it more likely that one has consented in a given circumstance.

"To the extent that consent is implied, an exception has been made already,: past sexual behavior is admissible when it goes to prove consent. So, prior consent to an orgy would be admissible to help prove that the accused had consent to engage sexually with that person in that orgy. That does not mean past history of participation in orgies and promiscuous behaviors constituted consent to a later rape. Your argument, ambassador, boils down to slut shaming."

[The Land of the Ephyral]

"An implication not devoid of realism. If someone is by their very nature promiscuous, more willing to consent to a larger amount of people on a daily, weekly, monthly, or annualised basis, then the likelihood of their sexual assault is diminished by sheer probability that they would consent in the first place."

"Except consent is not a question of likelihood. Consent is a question of presence or absence. That one is promiscuous does not make it more likely that one has consented in a given circumstance.

"To the extent that consent is implied, an exception has been made already,: past sexual behavior is admissible when it goes to prove consent. So, prior consent to an orgy would be admissible to help prove that the accused had consent to engage sexually with that person in that orgy. That does not mean past history of participation in orgies and promiscuous behaviors constituted consent to a later rape. Your argument, ambassador, boils down to slut shaming."

"And yet if an alleged victim is reputed for their chasteness, fidelity, and rejection of common and casual sex, any accused rape against them may be in part substantiated by the accuser's character being known as one who is not sexually open, who is not disposed to engage in sexual activity on a common or wide basis.

"In Ephyra, a slut is shamed. They are dishonourable and irreputable. One is far more likely to believe someone did not consent if they have no history of doing so with strangers and unknown persons, than they are likely to believe there was no consent if the accuser is known for ease of consent. A victim is not punished here, but all choices have consequences and to make yourself sexually available is no exception. If one behaves like a slut they shall be seen as one, and if they are seen to be consenting to sexual activity on a regular basis with a large number of people, what reliability of character can they call upon to support their claim that they didn't?"

[Araraukar]

OOC: Just so you know, an orc poster proving your point doesn't make my point any less salient. But you have your interpretation, I have mine, we're both right enough for good faith compliance as far as the existing resolutions (EDIT: of which only CoCR uses "prejudice" in the mandates, and that clearly talks of people's attitudes) are concerned. Carry on.

And for the record, I agree with you on the consent stuff.

[Separatist Peoples]

"And yet if an alleged victim is reputed for their chasteness, fidelity, and rejection of common and casual sex, any accused rape against them may be in part substantiated by the accuser's character being known as one who is not sexually open, who is not disposed to engage in sexual activity on a common or wide basis.

"Ah, so you rely on base character evidence to convict. It must be hard, substantiating a legal system on reputation rather than relevant and salient evidence."

"In Ephyra, a slut is shamed. They are dishonourable and irreputable. One is far more likely to believe someone did not consent if they have no history of doing so with strangers and unknown persons, than they are likely to believe there was no consent if the accuser is known for ease of consent. A victim is not punished here, but all choices have consequences and to make yourself sexually available is no exception. If one behaves like a slut they shall be seen as one, and if they are seen to be consenting to sexual activity on a regular basis with a large number of people, what reliability of character can they call upon to support their claim that they didn't?"

"This moralistic drivel is exactly what I'm hoping to wipe out. Evidence that an individual has a propensity to do a thing generally is not evidence that an individual acted in accordance with that propensity in a specific scenario. That is unreliable evidence, unduly prejudicial to truthfinding, and demonstrably unfair to all parties subject to such speculation. Your legal system is a joke, ambassador."

OOC: Its worth noting that such evidence would be thrown out in a heartbeat in a real world court.

[The Land of the Ephyral]

"And yet if an alleged victim is reputed for their chasteness, fidelity, and rejection of common and casual sex, any accused rape against them may be in part substantiated by the accuser's character being known as one who is not sexually open, who is not disposed to engage in sexual activity on a common or wide basis.

"Ah, so you rely on base character evidence to convict. It must be hard, substantiating a legal system on reputation rather than relevant and salient evidence."

"In Ephyra, a slut is shamed. They are dishonourable and irreputable. One is far more likely to believe someone did not consent if they have no history of doing so with strangers and unknown persons, than they are likely to believe there was no consent if the accuser is known for ease of consent. A victim is not punished here, but all choices have consequences and to make yourself sexually available is no exception. If one behaves like a slut they shall be seen as one, and if they are seen to be consenting to sexual activity on a regular basis with a large number of people, what reliability of character can they call upon to support their claim that they didn't?"

"This moralistic drivel is exactly what I'm hoping to wipe out. Evidence that an individual has a propensity to do a thing generally is not evidence that an individual acted in accordance with that propensity in a specific scenario. That is unreliable evidence, unduly prejudicial to truthfinding, and demonstrably unfair to all parties subject to such speculation. Your legal system is a joke, ambassador."

OOC: Its worth noting that such evidence would be thrown out in a heartbeat in a real world court.

"The Senate and Freeborn Landholders of Ephyra notes your objection, but we stand by our belief that victims are individual agents who like all others must face the consequences of their own actions. Rape is an allegation that has to be proven, not disproven. Any victim will find this far easier to achieve without a reputation for giving sex out freely.

"We shall vote against your proposal on the grounds that is denies admittance of evidence which may be used to indicate an accusation of bad faith."

[American Pere Housh]

"The Empire will vote against this proposal if it comes to a vote."

[Kenmoria]

"The Empire will vote against this proposal if it comes to a vote."

“Why? Do you want to provide any reasoning for this decision? This proposal seems like a reasonable way to provide for victims of rape.”

[American Pere Housh]

"The Empire will vote against this proposal if it comes to a vote."

“Why? Do you want to provide any reasoning for this decision? This proposal seems like a reasonable way to provide for victims of rape.”

"Because you seem to be giving victims more rights than the accused is why we oppose this proposal. The Empress has her own reasons for opposing this. Do you know that men get raped as well. Not in the same numbers as women but it happens."

[Kenmoria]

“Why? Do you want to provide any reasoning for this decision? This proposal seems like a reasonable way to provide for victims of rape.”

"Because you seem to be giving victims more rights than the accused is why we oppose this proposal. The Empress has her own reasons for opposing this. Do you know that men get raped as well. Not in the same numbers as women but it happens."

“The proposal mentions nothing about the gender of the accuser.”

[Separatist Peoples]

"The Empire will vote against this proposal if it comes to a vote."

"I promise you, ambassador, I do not care."

“Why? Do you want to provide any reasoning for this decision? This proposal seems like a reasonable way to provide for victims of rape.”

"Because you seem to be giving victims more rights than the accused is why we oppose this proposal. The Empress has her own reasons for opposing this. Do you know that men get raped as well. Not in the same numbers as women but it happens."

"I am not giving the victims more rights, because neither the victim nor the accused have ever had the right to submit anything as evidence. Further, there is no mention of gender in this proposal. Try again when you understand what this proposal does, ambassador."

[Aclion]

"Member state courts may not admit opinion or reputation evidence detailing a victim’s past sexual behavior or proclivity in a criminal proceeding."
In a case a of prosecution for making false accusations this would prevent the defense from submitting evidence of past sexual behavior, including evidence that supports that the rape actually happened.

[Separatist Peoples]

"Member state courts may not admit opinion or reputation evidence detailing a victim’s past sexual behavior or proclivity in a criminal proceeding."
In a case a of prosecution for making false accusations this would prevent the defense from submitting evidence of past sexual behavior, including evidence that supports that the rape actually happened.

Bell leans back to consider the moving parts for a moment.

"I am not certain you would be unable to submit specific examples of past sexual behavior, or lack thereof, ambassador. You wouldn't be able to submit reputation evidence, which is less than actual personal knowledge. So, too, would be opinion evidence, which is, while an amalgam of individual details about a person, still less than personal knowledge of a discrete event. Finally, even if the specific examples are extremely prejudicial, their use in a case specifically about false accusations would be, inherently, preeminently probative. I hope that helps, ambassador."

[Uan aa Boa]

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

I find this unclear. You probably mean that evidence is relevant if it allows the court to form a clearer view of the likelihood that a crime was committed by the accused, but I'm not sure, and since the proposal also discussed rates of reoffending - which is the likelihood of crime in a different context - it has the potential to be ambiguous. I'm not sure what you mean by the "tendency of evidence" either. It makes it unclear whether the definition applies to the singular specific piece of evidence before the court or to a more general type or category of evidence.

Also, with the introduction of "more likely than not" are you suggesting that the requirement for evidence should be concerned with the balance of probabilities as opposed to reasonable doubt?

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.

You can correct me if I'm wrong, but I don't think member nations are required to employ trial by jury. If I'm right about that then mandatory clauses that have to apply to all nations should not assume the existence of a jury.