NationStates

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:

1. “Relevancy,” as it pertains to evidence, is the tendency of evidence to make an element of a crime more or less likely.
   
   
2. Member state courts may not admit opinion or reputation evidence detailing a victim’s past sexual behavior or proclivity in a criminal proceeding.
   
3. Member states may allow the admission of other evidence of the victim’s past sexual behavior or proclivity in a criminal proceeding only
   
   
   1. 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
      
   2. 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.
   
   
4. 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.
   
   
5. 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 rules of evidence enacted to comply with this resolution.
   
   
6. Member states must conceal the victim’s identity on all public documents unless the victim expressly waives that right. 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.

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

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.

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

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."

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.'

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."

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."

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

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"?

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?

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.

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

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.

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.

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".

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

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.

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
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?

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

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.

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.

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...

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

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

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.)

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.