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[Draft] Rape Shield Act

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Greater vakolicci haven
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Founded: May 09, 2014
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Postby Greater vakolicci haven » Mon Sep 16, 2019 8:39 am

Kenmoria wrote:
Greater vakolicci haven wrote:"I have grave concerns about this proposal. It has never been the case under Havenic common law that bad character evidence can be put before the jury: such things almost always prejudice the jury away from a neutral perspective. We will therefore have no choice but to vote against an otherwise honourable piece of legislation."

“Ambassador, bad character evidence is not forced upon member states to legalise. It is prohibited for them to admit evidence regarding the victim’s past sexual behaviours in most cases, but it is not mandated for them to accept the evidence in the case that it is allowed.”

"I was referring to the following point:

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.

This is completely anathema to Havenic courts, not least because it was based on a false pretense. Some nations are perfectly capable of designing a system of rehabilitating those who have been convicted of offences against children. The fact that the proposer represents a nation whose justice system has not managed this is no reason to force other member states to lower the protections that they afford the accused."

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Separatist Peoples
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Founded: Feb 17, 2011
Civil Rights Lovefest

Postby Separatist Peoples » Mon Sep 16, 2019 10:49 am

Greater vakolicci haven wrote:
Kenmoria wrote:“Ambassador, bad character evidence is not forced upon member states to legalise. It is prohibited for them to admit evidence regarding the victim’s past sexual behaviours in most cases, but it is not mandated for them to accept the evidence in the case that it is allowed.”

"I was referring to the following point:

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.

This is completely anathema to Havenic courts, not least because it was based on a false pretense. Some nations are perfectly capable of designing a system of rehabilitating those who have been convicted of offences against children. The fact that the proposer represents a nation whose justice system has not managed this is no reason to force other member states to lower the protections that they afford the accused."


"So you don't allow character evidence of a relevant character trait into evidence to refute a defendent's falsifiable claim of peacefulness at trial to suggest they didn't commit the violent criminal act? You permit pathological liars onto the stand as witnesses without providing the jury evidence of their untruthfulness?

"I appreciate your concern, ambassador. However, I place the benefit to victims over the minimal potential harm to the accused, who already have systemic advantages in courts under extant WA law. As a matter of policy, I prioritize the victim, and see no reason to change that."

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Losthaven
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Founded: Dec 31, 2014
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Postby Losthaven » Mon Sep 23, 2019 2:44 pm

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

From what I see in the rest of the proposal, I don't think you need a definition of relevancy for this. If you're going to have one, you need to improve it. What you have here suggests that evidence which has a tendency to make an element of the crime less likely would not be considered relevant.

For instance, evidence that the accused was in a different country at the time of the alleged crime and was seen by twelve people - including the pope, the queen of England, and your saintly grandmother - would be irrelevant under this definition. That evidence does nothing to make an element of the crime "more likely than not."

Change to "more or less likely."

Separatist Peoples wrote: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.

The bad definition of relevance poisons this provision. Currently, the only "relevant" evidence would be evidence making the crime more likely. Evidence providing a defense by making the crime less likely would be excluded.

Also, what world are we living in where the defendant would ever offer evidence to prove "lack thereof" of consent? Remove that part of the first tabbed provision.

Separatist Peoples wrote: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.

What if the evidence would be unfairly prejudicial to the accused? The WA should not force member nations to adopt provisions which violate basic principles of fundamental fairness. Either apply the same "more prejudicial than probative" analysis to this that you would apply to prior sexual conduct of the victim, or make this provision permissible but not mandatory, or remove it entirely.

Separatist Peoples wrote: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.

I would use "rules of evidence" rather than "evidentiary rules." But that's just a grammatical quibble.
Last edited by Losthaven on Mon Sep 23, 2019 2:46 pm, edited 1 time in total.
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Kenmoria
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Postby Kenmoria » Mon Sep 23, 2019 2:50 pm

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

From what I see in the rest of the proposal, I don't think you need a definition of relevancy for this. If you're going to have one, you need to improve it. What you have here suggests that evidence which has a tendency to make an element of the crime less likely would not be considered relevant.

For instance, evidence that the accused was in a different country at the time of the alleged crime and was seen by twelve people - including the pope, the queen of England, and your saintly grandmother - would be irrelevant under this definition. That evidence does nothing to make an element of the crime "more likely than not."

Change to "more or less likely."

(OOC: Apparently this is not the case.)
Separatist Peoples wrote:
Kenmoria wrote:“Could the definition of relevancy be expanded to include ‘more or less likely’, so evidence that disproves the accusation is also considered relevant.”

"Evidence that disproves the accusation is evidence that makes a fact more likely: that the accusation is false."
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Losthaven
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Founded: Dec 31, 2014
Civil Rights Lovefest

Postby Losthaven » Mon Sep 23, 2019 3:16 pm

Kenmoria wrote:
Losthaven wrote:From what I see in the rest of the proposal, I don't think you need a definition of relevancy for this. If you're going to have one, you need to improve it. What you have here suggests that evidence which has a tendency to make an element of the crime less likely would not be considered relevant.

For instance, evidence that the accused was in a different country at the time of the alleged crime and was seen by twelve people - including the pope, the queen of England, and your saintly grandmother - would be irrelevant under this definition. That evidence does nothing to make an element of the crime "more likely than not."

Change to "more or less likely."

(OOC: Apparently this is not the case.)
Separatist Peoples wrote:"Evidence that disproves the accusation is evidence that makes a fact more likely: that the accusation is false."

That is a silly way to approach the law and it suggests the defendant has something to prove (i.e. that a rape did not occur) which is contrary to the burden of proof in most criminal cases.

I am not aware of a single jurisdiction that defines relevance in this way. Relevance is historically understood as a tendency to make a fact of consequence more OR LESS likely. Focusing only on what something makes more likely and diminishing the role evidence can play in making something less likely would have profound real world effects on the burden of proof. Member nations should not be required to adopt such a standard.

Perhaps this example will help with the conceptual framework here: evidence that the alleged victim has a reputation for dishonesty does not tend to make it "more likely than not" that she fabricated a particular allegation of rape. But that same evidence does have some tendency to make her allegations seem less likely than they would appear without that evidence.

Edit: I'd also point out that the response Kenmoria received fails to accurately characterize the current definition of relevance. A tendency to make "a fact" more likely than not - such as, I guess, the fact that allegations were fabricated - is not the same as a tendency to make "an element of the crime" more likely than not. To be sure, very few crimes include, as an element, that the allegations are not made up.
Last edited by Losthaven on Mon Sep 23, 2019 3:22 pm, edited 3 times in total.
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Separatist Peoples
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Founded: Feb 17, 2011
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Postby Separatist Peoples » Mon Sep 23, 2019 4:32 pm

Losthaven wrote:
Change to "more or less likely."


"This argument is fairly sound, and while I don't think that the implication bears out to actual application, it isn't really a problem to make the alteration."

What if the evidence would be unfairly prejudicial to the accused? The WA should not force member nations to adopt provisions which violate basic principles of fundamental fairness. Either apply the same "more prejudicial than probative" analysis to this that you would apply to prior sexual conduct of the victim, or make this provision permissible but not mandatory, or remove it entirely.

"Given the nature of sexual crimes, I don't actually believe that past sexual crimes are irrelevant. I believe that anything relevant is useful to determine the underlying motive of sexual crimes, which in turn demonstrates the very real difference between a terrible error in judgement and a categorical failure to control oneself. Or, worse, actual malicious intent to systematically abuse and violate."

I would use "rules of evidence" rather than "evidentiary rules." But that's just a grammatical quibble.


"This is also fair."

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Araraukar
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Postby Araraukar » Tue Oct 01, 2019 2:43 am

"If any past sexual activity that makes a rape more likely is admissible as evidence, then certainly that applies to the victim too? Revenge rape exists, and what the now-victim did, need not have been actually prosecuted, not to mention sentenced, to be relevant as a motive."
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Separatist Peoples
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Founded: Feb 17, 2011
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Postby Separatist Peoples » Tue Oct 01, 2019 3:31 am

Araraukar wrote:"If any past sexual activity that makes a rape more likely is admissible as evidence, then certainly that applies to the victim too? Revenge rape exists, and what the now-victim did, need not have been actually prosecuted, not to mention sentenced, to be relevant as a motive."

"Sexual predators demonstrate patterns. Sexual victims do not."

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Aclion
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Postby Aclion » Tue Oct 01, 2019 7:48 am

Separatist Peoples wrote:
Araraukar wrote:"If any past sexual activity that makes a rape more likely is admissible as evidence, then certainly that applies to the victim too? Revenge rape exists, and what the now-victim did, need not have been actually prosecuted, not to mention sentenced, to be relevant as a motive."

"Sexual predators demonstrate patterns. Sexual victims do not."

"*alleged"
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Separatist Peoples
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Founded: Feb 17, 2011
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Postby Separatist Peoples » Tue Oct 01, 2019 8:24 am

Aclion wrote:
Separatist Peoples wrote:"Sexual predators demonstrate patterns. Sexual victims do not."

"*alleged"

"If relevant evidence of past sexual convictions are merely alleged, the allegations can be easily disproved, as the convictions don't exist.

"I feel like you thought you had a point, ambassador, but didn't take the time to look into the text. I wish this was not so common an occurrence with you."
Last edited by Separatist Peoples on Tue Oct 01, 2019 8:26 am, edited 1 time in total.

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Separatist Peoples
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Founded: Feb 17, 2011
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Postby Separatist Peoples » Tue Oct 01, 2019 8:34 am

"This draft has been updated to include all accepted edits. If you made a suggestion and I accepted your rationale, but you do not see your suggestion reflected in the text, please let me know."

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Araraukar
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Corrupt Dictatorship

Postby Araraukar » Wed Oct 02, 2019 11:11 am

Separatist Peoples wrote:
Araraukar wrote:"If any past sexual activity that makes a rape more likely is admissible as evidence, then certainly that applies to the victim too? Revenge rape exists, and what the now-victim did, need not have been actually prosecuted, not to mention sentenced, to be relevant as a motive."

"Sexual predators demonstrate patterns. Sexual victims do not."

"Sexual predators may themselves also end up as victims. That's the whole point of revenge rape."

OOC EDIT: I think Aclion meant alledged sexual victim.
Last edited by Araraukar on Wed Oct 02, 2019 11:13 am, edited 1 time in total.
- Linda Äyrämäki, acting ambassador in the absence of miss Leveret
Araraukar's RP reality is Modern Tech solarpunk.

Giovenith wrote:And sorry hun, if you were looking for a forum site where nobody argued, you've come to wrong one.
Araraukar wrote:
Blueflarst wrote:a cosmopolitan hammer
United Massachusetts wrote:Can we all call ourselves "cosmopolitan hammers"?
Us cosmopolitan hammers
Can teach some manners
Often sorely lacking
Hence us attacking
Silly GA spammers

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