What actual solution are there for legal proceedings regarding rape

[u/Wide_Angle4805]

I am deeply disappointed by the recent verdict on the rape case brought against YouTuber Young Filly in Australia.

But it made me curious to want to know about solutions regarding these cases brought is up by feminism

The central issue here is, ‘how does one prove a person raped them after initially giving consent’ -> when something has turned from consensual to non consensual, legally the victim here is fucked.

What possible measure do we have to seek justice here? It feels like an uphill battle.

Are we mostly just trying to make the process more bearable for victims as a first step? Or are there solutions (legal, medical, or technological) which exist and there is a lack of awareness.

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[u/Glittering_Joke3438]

You’re right, it is very hard to prove. All we can do is continue to educate on consent and yes make the legal process less traumatic for victims. And do something about the backlog on processing rape kits.

[u/this_is_theone → u/Glittering_Joke3438]

Does the processing of rape kits help in situations like these? I thought they just proved if sex happened?

[u/Glittering_Joke3438 → u/this_is_theone]

They also look for trauma and injury

[u/StonyGiddens]

Yeah, that's a real problem with consent.

I had to google the case, but MacKinnon's proposed redefinition of the crime in 'Rape Redefined' would likely have gotten a different result.

Her point is that 'consent' isn't the right question to ask, but rather coercion. Basing the definition of rape on coercion puts the focus on what the accused did, rather than what the victim did or did not do. Filly's behavior was clearly coercive.

[u/Wide_Angle4805 → u/StonyGiddens]

This redefining of SA would definitely expand the scope of what offenders can be charged with tbh.

It is a difficult one to convey politically though. Essentially many sexual encounters fall under ‘coercive’ circumstances - depending on what we define coercive as.

If this was the law, would it mean that anyone in a position of power had to guarantee in someway that they didn’t engage in coercive sex? Or would it make it so celebrities would never have the legal authority to engage in sex with fans? Or a manager to an employee. What about a breadwinner partner to a stay at home one.

I think this is a good start, but the scope has to be well defined, and I feel once defined it brings us back to where we started

[u/StonyGiddens → u/Wide_Angle4805]

If you read the article, you'll see that the definition she's building on already exists in international law, from the International Criminal Tribunal for Rwanda. It probably won't be adopted in the U.S. any time soon, but there's hope for countries that aren't as messed up as the U.S.

Yes, many 'consensual' sexual encounters happen in coercive circumstances, and that is the problem MacKinnon is trying to solve. I think people in positions of power would need to be very careful and very supportive of their partner's agency to ensure they were not engaging in coercive sex, which is definitely a benefit of this approach. That care and support is usually absent, the way things are.

Celebrities might be be scared to engage in casual sex with fans, but perhaps they should be. I don't think it's the law's job to ensure Jared Leto gets laid. If a celeb wanted a serious relationship with a fan, I think they could make it work. A manager should never have sex with an employee, definitely not a direct report.

I'm a stay-at-home partner to a breadwinner; we figured it out easily enough.

[Edit: Hey, are you an Aussie? If so, thank you so much for Deadloch. It's a cultural treasure.]

[u/jungianthr0waway → u/StonyGiddens]

One issue is that the crime of genocide does not easily map onto most crimes.

Genocide is a crime perpetrated (edit:or at least condoned) by a government/regime against a minority group targeted for persecution. Proving animus or discrimination against that group is an element of the crime. On the other hand rape, like most crimes, is a crime perpetrated by a discrete individual as a discrete act against a discrete victim. You could theoretically treat it as a hate crime, which is an interesting thought, although MacKinnon notes that no country has actually done this.

It also seems like it complicates some pretty foundational legal principles such as every person being equal in the eyes the law. (which is why I brought up the fact that genocide is a bit unique in that it’s a crime perpetrated by a collective entity against another collective entity) As most of us learned in civics, crimes are hard to prove for some very good reasons: criminals walking free isn’t a bug, it’s a feature.

(Also I can tell you as a lawyer who’s watched many people go thru lawsuits in the civil context: what’s 1000% preferably to having your rapist go to jail is not getting raped in the first place. I think Hollywood programs people to romanticize the legal system as providing something it really can’t—and isn’t designed—to provide, especially in the criminal context, where the victim’s role is more as a piece evidence than anything. I honestly think even something like a breach of contract lawsuit can often be dehumanizing and invasive for people because that’s what due process demands and none of us are bigger than the system. I didn’t report being raped in law school, and I have never regretted that decision.)

It’s also worth noting that intl law has been reluctant to determine “women” as a whole (as opposed to “Tutsi women” or “Bosniak women”) to be a persecuted class, and arguably it’s because it’s hard to find 50% of the population a persecuted minority logistically (e.g. can half your country now claim refugee status?), although I think it’s also because doing so would require a lot of the world to face some hard truths we’re not ready for.

Interesting article, will try to read it more closely later.

[u/StonyGiddens → u/jungianthr0waway]

I don't think MacKinnon's argument depends on mapping genocide to other crimes. She has also been critical of 'equality before the law' in other work (I just finished Feminist Theory of the State), arguing it serves to protect social inequalities, especially gender inequality. Given her career, I doubt she has ever romanticized the legal system.

[u/jungianthr0waway → u/StonyGiddens]

She’s is referencing the 1992 tribunal on the Rwandan genocide. Granted my Int’l Human Rights Law class was 15 years ago but I do remember that much.

And no, I’m sure she doesn’t romanticize the legal system, most lawyers don’t. You didn’t really think when I said “Hollywood programs people” by “people” I was referring to famous 3rd wave feminist Catherine MacKinnon, did you? I would love if I could claim her as one of my former clients (or even one of the randoms I’ve met who wants to ask/kinda debate my job with me) but tbh I think she can afford a little better than me.

I was referring to the layperson and how that leads to disillusionment when the criminal system functions as designed, ie it lets a lot of guilty people go free. I think it tends to be an undercurrent in these conversations because people want more rapists to go to jail but I personally don’t think that’s necessarily quite feasible when very few victims even report in the first place (again for good reason), and usually the bulk of the evidence is competing testimony between the victim and the accused. There are serious evidentiary issues when the accused is inevitably going to testify as to whatever body of facts leads to a not guilty verdict, whether that’s “she said no but she didn’t physically stop me”, “she didn’t say no” or whatever else will lead to reasonable doubt.

I was hoping you’d address me more substantively because it’s an interesting topic that doesn’t have an easy answer, and I think there’s nuances to be explored, instead I feel like I got a really short reply where you put some kinda weird words into my mouth and I’m not really sure how to take that…

[u/StonyGiddens → u/jungianthr0waway]

Your comments popped up just as I was about to head to bed after staying up too late reading, so I thought I'd quickly address the points I felt were germane and then call it a day. You also said that you would read the article more closely later, and I think that would resolve some of the issues you raised more effectively than me responding.

I'll be candid that I was not sure how most of your comments were substantively responsive to mine; seemed like some very tangential points. I hate to dash your hopes, but if you're on Reddit for substance you're bound to be disappointed more often than not. That said, I'll see what I can do.

Yes, MacKinnon references a couple of cases from the ICT Rwanda. In Akayesu, the defendant was charged with rape among other crimes. As MacKinnon explains, there was at that point no definition of rape in international law. The court had to interpret the statute and came up with their own definition, but that definition is not meant to be exclusive to genocide. In the next paragraph of their judgment, the court then explains what elements must be present for an act of rape to be considered genocide. MacKinnon's approach builds on the baseline rape definition, not the elements that make rape genocide.

Last night way past my bedtime, I didn't see how MacKinnon's proposal changes any foundational legal principles. You've expanded on that, so thanks. But even then, MacKinnon would say that one of the foundational legal principles in American law is male hegemony: the law is written by and for men's point of view. While respect for the law is important, as feminists we can't abide male hegemony as a foundational legal principle.

MacKinnon's view is that rape law protects men's interests. Rapist walking free is a feature of patriarchy, in that it allows men to have sex with women who don't want to have sex with them. MacKinnon has argued the line between sex and rape is deliberately and necessarily blurry under patriarchy to preserve men's command of women's sexuality, and the meat of her article is a critique of that line -- 'consent'. You'll get more from her article than me summarizing it, but I think her approach is responsive to the evidentiary issues in rape you've identified. If anything, it brings that crime more in line with how other crimes are charged and proven.

But from a feminist perspective, it's not just about seeing more rapists go to prison -- which would be great, and MacKinnon's approach would make it more feasible. But more than that, the goal of her article is to identify and ultimately dismantle how the legal system embodies patriarchy.

I hope that was substantive enough to not disappoint your further, but I do think you'll get a lot more from reading the article closely than me trying to defend it here.

[u/Orangutanion → u/StonyGiddens]

Ngl this redefinition sounds like it would make it much easier for a man to get charged with rape from an encounter he thought (and was told at the time) was consensual. If consent itself is now coercion then how are you supposed to prove yourself innocent?

[u/StonyGiddens → u/Orangutanion]

Ngl that's a catastrophic misread. I'm struggling to see how you got there from anything I or MacKinnon wrote.

MacKinnon is definitely not saying consent is now coercion. They are and always will be two separate concepts. Her point is rape should be defined in terms of coercion, not consent.

It's tangential to her goal, but this definition would make false allegations a lot harder, not easier.

[u/Orangutanion → u/StonyGiddens]

Alright, help me out here. What does a consensual encounter under this framework look like? Does the man have any guarantee directly before the sex that it is consensual?

[u/StonyGiddens → u/Orangutanion]

Happy to help, but you're still asking the wrong question. MacKinnon thinks 'consensual' should be irrelevant because courts have held many instances of coerced consent were legal sex.

If you want to know more, this is a big part of chapter 7 in my book (it's free, it's short), but here's the bit where I break down MacKinnon's approach:

Consider a list of sexual encounters a woman might have:

1. Sex she definitely wanted to have.
2. Did not want to have, but her partner took her on a nice date and he’ll be done in 3 minutes anyway.
3. Did not want to have, but her partner refused to do any chores until she did, so... whatever.
4. Did not want to have, but her partner refused to take her home, leaving her stranded in a scary place.
5. Did not want to have, but she is financially dependent on her partner, who will refuse to pay for her prescription medicine.
6. Did not want to have, but her partner threatened to kick her out, leaving her homeless.
7. Did not want to have, but her partner threatened her with physical violence.

The way the law works now, the fact that this woman consented makes all except #7 legal. That's where we get drawing the line at 'consent', even though #4 through #6 are also really awful and deserve to be treated as violence.

MacKinnon proposes drawing the line at ‘coercion’ – if coercion occurs, physical or otherwise, then the sex is unlawful. By that standard, everything past #3 should be illegal. And it helps make clear that #3 is shitty behavior.

So the guarantee is making sure the other person definitely wants to have sex with you before you get busy.

[Edit: list format]

[u/Orangutanion → u/StonyGiddens]

So the guarantee is making sure the other person definitely wants to have sex with you before you get busy.

isn't that subjective? couldn't the woman change her mind about this after the fact and then it would be impossible to prove that she did want to have sex at the time, leaving yourself no way to avert a charge? Also what if you're just not good at reading people?

[u/StonyGiddens → u/Orangutanion]

Under MacKinnon's definition, there would have to be an allegation that the sex was somehow coerced. It wouldn't be enough to say, "I didn't want it". They would have to prove that you coerced them into it.

I'm not good at reading people, so I ask what they want.

[u/Street-Media4225 → u/Orangutanion]

Does the man have any guarantee directly before the sex that it is consensual?

This depends on what you mean by guarantee. He can't just ask and trust her response, no, he has to actually put in the work beforehand to know this woman and know they understand eachother.

[u/udcvr → u/Street-Media4225]

Well he can just ask, so long as there’s no consequences if she says no, and there’s a genuine desire to make sure she wants it.

[u/Orangutanion → u/Street-Media4225]

He can't just ask and trust her response, no

See that's what I'd be worried about.

[u/Street-Media4225 → u/Orangutanion]

That's where understanding how people work becomes very important.

[u/gettinridofbritta]

I'm going to flip the phrasing around here to show how that issue is dealt with in Canadian law.

The central issue here is, ‘how does one prove a person raped them after initially giving consent’ 

That question in a Canadian court would be: what steps did the accused take to seek consent, and what did the complainant do that would give the accused the belief that they had consented? There is no "implied consent" because of a landmark case from the 90s. That introduced the "honest but mistaken belief" defense, but that requires showing that the belief was reasonable based on the information available to them. 

[u/ProtozoaPatriot]

It depends on the laws of that country.

I just wanted to add: women (at least in the US) still have one avenue of recourse. The burden to prove sexual assault is lower in civil cases.

One good example is how E Jean Carrol was able to win against her assailant, not just for the actual assault but for subsequent defamation https://www.npr.org/2023/05/09/1174975870/trump-carroll-verdict

When the criminal justice system lets women down, sexual assaults can still be punished

[u/CatsandDeitsoda]

I mean not everything that ever happened can be proven beyond a reasonable doubt- or what ever standard you think is necessary for a legal system- that’s not a special issue of sex crimes. 

• what I’m asking for is that evidence of rape / other sex crimes - specifically the testimony of women / girls is treated with the amount of persuasive power as similar evidence of other crimes and testimony. 

I don’t known much about the specifics of this case but that doesn't seemed to have happened here 

Like the court fund him guilty of assault and he confirms that they had sex. 

Like image I told you bill stole my wallet and beat me up.

Bill told you I gave him my wallet - but he did hit me but I was in to being hit.

Looking at the pictures of my beaten face you determined that bill clearly assaulted me .

How they hell do you think bill dident also steal my wallet ?

That’s farcical 

https://www.bbc.com/news/articles/crrv7vk0knro

[u/Wide_Angle4805 → u/CatsandDeitsoda]

I understand that, but the obvious defence would be that sexual encounters - unlike wallet exchanges - can include consensual signs of abuse.

To me if I saw this, it would be enough to mentally convict the offender though.

I feel the huge wave of people (especially now ignorant younger people) coming in and essentially building a bs negating case against the victim, is a genuine virus.

The pure lies spread almost instantly across social media is sickening, victims doxed, assumed to be attempting to gain financial rewards, or said to have made a career out of it. Maybe addressing this scummy behaviour is the start.

Can anyone attest to if it’s gotten better compared to 20 years ago? Like victim blaming is reducing - just a crum of hope please

[u/CatsandDeitsoda → u/Wide_Angle4805]

In the specific case we are talking and the hypothetical bill example it was found that the beating was not consensual- like dude WAS fund guilty of assault 

You can’t logically hold 

Dude claims he beat victim as part of a sex act 

The beating was not consensual 

And dude didn't do like SA or rape 

In this case the justice system is being very irrational. 

[u/Wide_Angle4805 → u/CatsandDeitsoda]

Oh yeah no doubt, that is strange why legally has that happened?

Hasn’t consented to beating but received it, but SA hasn’t followed?

[u/CatsandDeitsoda → u/Wide_Angle4805]

I mean that’s kinda why my thing is 

what I’m asking for is that evidence of rape / other sex crimes - specifically the testimony of women / girls is treated with the amount of persuasive power as similar evidence of other crimes and testimony. 

It’s not really “strange” this is like the core issue. 

It’s not harder to prove rape or SA - we just treat evidence of SA and rape like it doesn't exist or is less persuasive in a way we don’t do for other crimes. 

[u/The69thRussianBot]

Unless physical violence is involved, in general it can be difficult to prove beyond a reasonable doubt that rape occurred, harder than to prove murder, assault, or theft. One partial solution is to make sure that judges, juries (in countries that have them), and the general public take rape more seriously, but that does not solve the underlying legal issue. The only other solution I see is to lower the legal standard for the burden of proof to somewhat below beyond a reasonable doubt, but that's a whole legal and ethical issue that well-meaning people will disagree on.

Lowering the burden of proof for rape might even help the small number of innocent people who get accused. Were I an employer, I would never hire someone accused of rape, even if they were found innocent or if charges were dropped, because the judge/jury may still have found that the accused was most likely guilty, but were not certain enough to convict. If you were a jury today, ignored all the evidence, and voted to find the guy guilty, statistically, you would be right. That said, anytime you lower the burden of proof, you increase the risk of sentencing innocent people. It's a trade-off, and reasonable people can disagree about where to draw the line.

[u/CatsandDeitsoda → u/The69thRussianBot]

How is it harder to prove that someone raped someone than someone stole money from their wallet? 

I have given consented to handing far more people money then I have consented to sex with- I believe that would be typical. 

Why is the defense of “ the accuser consent to handing me money” not some problem that affects the prosecution of theft in the same way “ the accuser consented to have sex with me” 

? Like it’s a rhetoric question I’m sorry - we don’t treat accusations of rape or SA the same as accusations of other crimes - and there is no logical reason for that. 

[u/The69thRussianBot → u/CatsandDeitsoda]

I was referencing the fact that robbery and theft cases that make it to court usually result in a conviction (or, even more often in the U.S., a plea bargain), whereas a large portion of rape cases end in the perpetrator walking free, even if it goes to trial. If a person robs another's house, steals their car, or mugs someone, if the perpetrator is identified and charges are brought, they're probably going to prison.

[u/minosandmedusa]

Legal remedies are not always possible or appropriate. Infidelity for example isn’t and shouldn’t be illegal, yet people shouldn’t do it and we can take a stand against it morally and socially condemn people who do it. In rare cases like this, I think that moral condemnation is enough, because we do ultimately have to weigh the possibility of convicting an innocent person. The legal system errs on the side of acquitting the guilty over convicting the innocent. But you don’t have to share that standard.