[Draft] Rape Shield Act

[Greater vakolicci haven]

"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."

[Separatist Peoples]

“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."

[Losthaven]

“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."

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.

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.

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.

[Kenmoria]

“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.)

“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."

[Losthaven]

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.)

"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.

[Separatist Peoples]

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."

[Araraukar]

"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."

[Separatist Peoples]

"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."

[Aclion]

"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"

[Separatist Peoples]

"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."

[Separatist Peoples]

"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."

[Araraukar]

"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.

[Separatist Peoples]

Ooc: bump

[Great Nortend]

“Given a criminal case is typically between the state and the accused, the feelings of the complainant seem completely irrelevant in determining relevancy. Relevancy is a question of fact, not something which a statute can simply declare a particular fact as possessing or not.

“In any case, this bill is worded too narrowly. Given that before judgment, it is not possible to know whether the complainant in fact was a victim or not, “alleged victim” or “complainant” should be substituted. Otherwise, portions of this bill relating to relevancy would be completely ineffective upon a strict interpretation, as the courts would be unable to determine whether the complainant in fact was a victim until after the accused had been convicted of acts upon the said complainant.”

[Keswickholt]

The topic area is so broad that you have covered two areas in one overall topic that detracts the Seriousness of each of them.

Child Sexual offences should be covered by a seperate proposal, I understand the Point you are trying to make and I applaud you for that.

[Boston Castle]

Very good as always, Sep. One quick formatting note, a suggestion, and a question.

1. In the past sexual proclivity clause, I’m sure you know to somehow formulate your sub points into a list.

2. Suggestion for the same clause, combine the main clause and the bit after the tabbed sub clauses so it reads “ Member states may allow the admission of other evidence of the victim’s past sexual behavior or proclivity in a criminal proceeding provided that such evidence is relevant and particularized to discrete events and only...” and so forth. (Ellipsis included just to note that the resolution continues on.

3. Does this resolution also cover corrective rape?/Could such a clause be added?

[Separatist Peoples]

“Given a criminal case is typically between the state and the accused, the feelings of the complainant seem completely irrelevant in determining relevancy. Relevancy is a question of fact, not something which a statute can simply declare a particular fact as possessing or not.

"Ambassador, if I was prosecutor in a criminal case where you were charged with tax evasion, and I entered evidence into the court that you enjoy a particularly tasteless form of pornography, and assuming, ad arguendo, that such a claim was true and particularly shocking to the jury, would that not have a prejudicial effect on the jury against you? A prejudiced jury does not an impartial finding of fact make.

"Relevancy is the first hurdle in admitting evidence in legal systems. It is very, very much relevant as a matter of justice, regardless of the personal feelings of the accused."

“In any case, this bill is worded too narrowly. Given that before judgment, it is not possible to know whether the complainant in fact was a victim or not, “alleged victim” or “complainant” should be substituted.

"In cases of rape, the victim is absolutely known. The perpetrator is the one in question. This is not helpful advice."

Otherwise, portions of this bill relating to relevancy would be completely ineffective upon a strict interpretation, as the courts would be unable to determine whether the complainant in fact was a victim until after the accused had been convicted of acts upon the said complainant.”

"Given the above, this is still incorrect."

The topic area is so broad that you have covered two areas in one overall topic that detracts the Seriousness of each of them.

Child Sexual offences should be covered by a seperate proposal, I understand the Point you are trying to make and I applaud you for that.

"Why? Considering this addresses a very narrow concept, the admissibility of sexual history, why do children need a separate resolution? There are six operative clauses. Would children benefit from a resolution with only three?"

Very good as always, Sep. One quick formatting note, a suggestion, and a question.

1. In the past sexual proclivity clause, I’m sure you know to somehow formulate your sub points into a list.

OOC: I can't work out why on earth I didn't have that formatting the first time around.

2. Suggestion for the same clause, combine the main clause and the bit after the tabbed sub clauses so it reads “ Member states may allow the admission of other evidence of the victim’s past sexual behavior or proclivity in a criminal proceeding provided that such evidence is relevant and particularized to discrete events and only...” and so forth. (Ellipsis included just to note that the resolution continues on.

OOC: This is helpful, and I'll look into it when I address that awful formatting error.

3. Does this resolution also cover corrective rape?/Could such a clause be added?

OOC: It would, but I'm not sure if it needs to address it specifically. Can you expound?

[Great Nortend]

“Given a criminal case is typically between the state and the accused, the feelings of the complainant seem completely irrelevant in determining relevancy. Relevancy is a question of fact, not something which a statute can simply declare a particular fact as possessing or not.

"Ambassador, if I was prosecutor in a criminal case where you were charged with tax evasion, and I entered evidence into the court that you enjoy a particularly tasteless form of pornography, and assuming, ad arguendo, that such a claim was true and particularly shocking to the jury, would that not have a prejudicial effect on the jury against you? A prejudiced jury does not an impartial finding of fact make.

"Relevancy is the first hurdle in admitting evidence in legal systems. It is very, very much relevant as a matter of justice, regardless of the personal feelings of the accused."

“In any case, this bill is worded too narrowly. Given that before judgment, it is not possible to know whether the complainant in fact was a victim or not, “alleged victim” or “complainant” should be substituted.

"In cases of rape, the victim is absolutely known. The perpetrator is the one in question. This is not helpful advice."

“It is wrong to state that in cases of rape, the victim is absolutely known. Even if it is proven that there was rape between two persons, it is not always clear who was the rapist and who the victim. For instance, the rapist may himself accuse the victim of rape. Furthermore, it is not usually possible to prove there was in fact rape until judgment is given. There are no court inquest in most jurisdictions for declaring a person a victim of rape. As such, before such judgment, the “victim” is merely the alleged victim. However desirable it may be to automatically believe an accusation of rape, it is not possible for the legal system to declare such a person a victim without qualification without following the standard processes for investigating whether a crime has occurred.”

[Keswickholt]

The topic area is so broad that you have covered two areas in one overall topic that detracts the Seriousness of each of them.

Child Sexual offences should be covered by a seperate proposal, I understand the Point you are trying to make and I applaud you for that.

"Why? Considering this addresses a very narrow concept, the admissibility of sexual history, why do children need a separate resolution? There are six operative clauses. Would children benefit from a resolution with only three?"

Simple answer; Yes!
As it needs to be spelled out to Some of the national governments.

[Separatist Peoples]

“It is wrong to state that in cases of rape, the victim is absolutely known. Even if it is proven that there was rape between two persons, it is not always clear who was the rapist and who the victim.

"Were this true, litigation could not begin at the outset for want of a crime to warrant arrest. This is meaningless pedantry divorced from any realistic criminal procedure."

For instance, the rapist may himself accuse the victim of rape.

"That would make the accuser in this instance the victim of a separate crime. That is not a defense to the charge of rape. Consent may be, in which case there may be an acquittal. But that does not mean there is not a victim for the purposes of criminal prosecution."

Furthermore, it is not usually possible to prove there was in fact rape until judgment is given. There are no court inquest in most jurisdictions for declaring a person a victim of rape. As such, before such judgment, the “victim” is merely the alleged victim.

"A difference without any real meaning here. Even assuming, ad arguendo, that your position has merit, there is no good faith interpretation that takes the lack of 'allegedly' and transforms all mentions of a victim into a need to prove the crime before proving the crime. Any such repeal based on this specious argument would surely be illegal for Honest Mistake."

However desirable it may be to automatically believe an accusation of rape, it is not possible for the legal system to declare such a person a victim without qualification without following the standard processes for investigating whether a crime has occurred.”

"An adorable strawman, ambassador, but a strawman nonetheless."

"Why? Considering this addresses a very narrow concept, the admissibility of sexual history, why do children need a separate resolution? There are six operative clauses. Would children benefit from a resolution with only three?"

Simple answer; Yes!
As it needs to be spelled out to Some of the national governments.

"A declaratory statement is not an argument. Form an argument and make it in a cohesive and consistent manner, and I will consider your request."

[Separatist Peoples]

Ooc: bump

[Imperium Anglorum]

Elsie Mortimer Wellesley. At the end of section 3, in

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.

Is the invocation of 'relevant evidence' intentional?

[COOPDAWGG]

COOPDAWG agrees with this act

[Old Hope]

Furthermore, it is not usually possible to prove there was in fact rape until judgment is given. There are no court inquest in most jurisdictions for declaring a person a victim of rape. As such, before such judgment, the “victim” is merely the alleged victim.

"A difference without any real meaning here. Even assuming, ad arguendo, that your position has merit, there is no good faith interpretation that takes the lack of 'allegedly' and transforms all mentions of a victim into a need to prove the crime before proving the crime. Any such repeal based on this specious argument would surely be illegal for Honest Mistake."

OOC:One measure to comply with this resolution is to assume that the alleged victim is a victim, and, upon a final Not Guilty verdict, to disapply all victim protection(because that person has been proven to be not the victim).

[Imperium Anglorum]

"A difference without any real meaning here. Even assuming, ad arguendo, that your position has merit, there is no good faith interpretation that takes the lack of 'allegedly' and transforms all mentions of a victim into a need to prove the crime before proving the crime. Any such repeal based on this specious argument would surely be illegal for Honest Mistake."

OOC:One measure to comply with this resolution is to assume that the alleged victim is a victim, and, upon a final Not Guilty verdict, to disapply all victim protection(because that person has been proven to be not the victim).

Old Hope again is too clever by half. A not proven or not guilty verdict does not invalidate a crime's occurrence. OJ being found not guilty of murder did not raise Nicole Brown Simpson and Ronald Goldman from the dead.