Wednesday, September 26, 2007

Rape Conviction Leaves Polygamy Unchallenged

The polygamist Warren S. Jeffs, a prophet for fundamentalist Mormons, was convicted of being an accomplice to the rape of a 14-year old girl for "orchestrating the marriage of the young girl under duress" back in 2001. The victim testified that she had been forced into a "celestial marriage" (plural marriage) that she did not want, to a cousin that she did not like. Prosecutors argued that Jeffs knew that the forced marriage would lead to "nonconsensual sex," i.e. rape, and the jury agreed.

What's most interesting to me about this case is that it was not about polygamy. Instead of charging Jeffs with polygamy per se, prosecutors went after Jeffs for statutory rape. The conviction is unquestionably positive with respect to its definition of rape. Though the article mentions no allegations of physical force, the jury still found that a rape had occurred based on a lack of consent and/or sex that occurred under duress. Of course, we're dealing with the rape of a minor, and the whole premise of statutory rape assumes a lack of consent on behalf of the minor, so perhaps I'm being too optimistic in terms of applauding the jury for their progressive definition of rape. Not knowing the applicable state law, I don't know whether an adult woman would have received the same level of justice had she been forced into non-consensual sex, i.e. rape.

That's one of the most fascinating aspects of rape law: Young women under a certain age are presumed not to consent - in fact, they are legally not allowed to consent - while women over a certain age are presumed to always consent, unless proven otherwise. If your below a certain age, the assumption is that you kept your legs closed; if your over a certain age, the assumption is that you willingly opened them. That's why so much of rape law - which continues to be quite antiquated - focuses on the issue of force. Instead of assuming that it's rape unless there is affirmative evidence of consent, our legal system assumes that it was consensual sex unless there was evidence of force. (Not all states, but many continue to have this assumption at the core of their rape law).

The problem with that is that sex continues to happen in our society in the context of inequality, and the reality of sex for many girls and women is not always, or even usually, an experience of equality. Set against the backdrop of inequality - gender, economic, age etc. - it's ridiculous for our legal system to assume consent when sex happens. At least in the case of minors - who are protected by statutory rape but also denied the ability to consent by that same law - our legal system approaches sex from a more realistic perspective that recognizes at least some of the power issues involved.

The conviction of Jeffs is a victory for the victim and a general victory for women's rights advocates. However, I'm disturbed that Jeffs was not also convicted under the anti-polygamy laws for polygamy. Although there are enclaves of fundamentalist Mormons spread out through the country flagrantly practicing polygamy and its attendant forced, child marriages against the law, the authorities consistently fail to take a stand against polygamy. Instead, the enclaves are allowed to exist relatively unmolested, despite the molestation and abuse that - by many accounts - goes on within those communities.

In America, we don't have to look to Saudi Arabia or Afghanistan to find examples of female oppression. It's right here in our own country and appears in many different forms, one of the most blatant examples of which are the fundamentalist Mormon enclaves led by men like Jeffs. In convicting him as an accomplice to statutory rape, our society has taken a step towards protecting the rights of children growing up within those enclaves. However, his conviction for rape leaves the broader issue of polygamy and its implications for the rights of women (in a patriarchal society) unexamined and unchallenged, and offers no clear protection for adult women within those enclaves. To offer protection to all women within those communities, in addition to enforcing the law of statutory rape, the authorities would also need to enforce the laws against polygamy, something which they have thus far been reluctant to do.


Starshine said...

Good point. I wonder if prosecutors avoid polygamy charges because they don't want to deal with freedom of religion sub-issues.

I recently saw a news story about teenaged boys that are kicked out of these fundamentalist communities because with all those boys, there aren't enough girls to go around to continue practicing polygamy. Now these boys are forced to live outside of these enclaves in the "real world" which they have never known, while fearing that they now won't go to heaven, as fundamentalist Mormon doctrine tells them that they won't go to heaven unless they have more than one wife.

It is a sub-culture that we don't hear much about, but that definitely exists in this country.

Greg said...

The measure of force to show guilt comes from the basic tenet that a person is innocent until proven guilty. It is difficult to look at specific cases from the eyes of both the law and an activist. The law must come first.

So for many cases given the premise that a couple of adults had sex, there must first be the assumption of innocence. The burden of proof must lie with the accuser, otherwise we must give the burden to all defendants of any crime and assume them all guilty.

I think more promise will be found with advance technology in forensics than can reasonably be expected in our courts.

As far as polygamy, this is a matter of enforcement not law. If there is a villain here, then it is cost. Most law enforcement budgets only allow them to react to complaints rather than proactively enforce laws. We have many laws on the books that aren't enforced, some of which are archaic and should probably go away.

The so-called polygamist may not actually be legally married, or married by a person legally recognized to marry them, or at least show no documentation that they are married to several people. In this case, no polygamy charges could be sought because technically they are only married to one person, and only live together with other women.

Buttercup said...

I'm not suggesting taking away the burden from the prosecution. I'm talking about what elements they should have to prove.

Traditionally, rape law assumed consent and the burden was on the victim to show physical force. This definition did not take into account situations where rape happens without physical force, or without evidence of physical force, so it was limiting.

More modern rape law is changing so that the prosecution, instead of having the burden to prove physical force, now has the burden of proving that the accuser/victim did not consent.

The prosecution still has the burden, but the change in the law relates to the definition of rape and, as I said above, what elements the prosecution must prove in order to get a conviction.

i am the diva said...

this was an excellent article. Well written.

Greg said...

Evidence of physical force versus a lack of consent is a subtle distinction. Evidence of force clearly shows a lack of consent, but as you write a lack of consent does not necessarily coincide with evidence of physical force. A danger for abuse exists here so I can understand many courts hesitating to rule on consent alone.

One example could be someone who argues that he/she was under the influence of alcohol or drugs and that consent under these conditions is invalid. There are obvious cases when this is true, such as a person becoming unconscious. But what about someone who has only one drink? Or someone who has an extremely high tolerance of alcohol?

What about a temporary insanity claim? Without temporary insanity most people wouldn't have sex in the first place.

Or what about a woman (or man) who claims to everyone that she is saving herself for marriage and is very religious in her life. Then the woman goes and sleeps with someone in the heat of the moment and regrets it? Do we begin to allow and consider previous states of mind?

I don't necessarily disagree with you, but I'm hesitant to completely agree. Though it may seem a bit cruel, those cases where evidence of force cannot be shown may be better handled proactively by better educating men and women about the dangers of specific situations. Society doesn't have to be limited to only one aspect (law in this case) to solve its problems.

Nobody deserves anything bad to happen to them; even should they behave without regard to their own safety. But whenever we judge without empirical evidence, the probability of error is high. I'd be very interested in future posts where you might comment on specific cases as they happen, or on changes in these laws.

Buttercup said...

Evidence of physical force would not necessarily make it more easy to tell if someone had been raped. For example, two adults can have very rough consensual sex that could "look like" physical force was used (against the person's consent). I suppose, though I'm not suggesting that this happens, bruises and evidence of force could also be added to the fact to bolster claims that force were used.

This is all to say that the whole emphasis on "force" is misplaced in rape law. Rape is not about the use of physical force, it's about having sex with someone "against their will" - which can be proved a variety of ways including by the credibility of the testimony of the accuser.

There's another area of law that IS about the use of physical force. It's called assault. Rape is already a violation enough. Having a rape take place without an assault doesn't mean a rape didn't take place; it just means that one crime was committed instead of two.

Greg said...

My concern is in the area of "credibility of the testimony of the accuser." This is subjective territory that could depend heavily on the education level and socio-economic class of the parties involved.

If I'm following correctly, we are discussing cases where no evidence of force exists and no witnesses exist. And I’m assuming these are adults who have engaged in some form of sexual activity. So the case comes down to which party is most believable, right? And the issue becomes, was consent given prior to sexual intercourse.

So far you've responded with basing a judgment on the most credible side. With that standard, anyone with a good presence could abuse the system easily. Am I missing something else?

Buttercup said...

The issue of rape, just like many legal issues, such as contract interpretation, often comes down to the credibility of the two parties. That's not unique to rape law and it's not necessarily problematic. In fact, almost every case - if no every case - tried by a jury often comes down to credibility (and worse - likability) issues. That's why so much time is spent on choosing juries and practicing trial skills.

Although it would be nice if our legal system always had an easy answer or clear evidence, in practice that's not the reality in any area of law. If it was, we wouldn't need judges, lawyers, written opinions, oral arguments, cross examinations, directs, juries, or any other elements of our legal system. We could just check off boxes and call it a day.

Buttercup said...

"And I’m assuming these are adults who have engaged in some form of sexual activity." You say that as if that's dispositive, or like it tends to call in to doubt the truth of an allegation of rape.

Underlying you position appears to be the assumption that If Sex Happened, She Must Have Wanted It, Or She Must Have Acted Like She Wanted It. My question is, why do we assume that a woman wanted it if it happened?

Granted, sex can be a very pleasurable act. But, in a society where, as one of my college students said, "men are the gas, and women are the breaks," that assumption does not always - or possibly even most of the time - mirror reality. And for something as serious bodily penetration, it would seem to make sense to have some evidence of affirmative consent before proceeding.

Greg said...

No, I didn't mean it that way. I only wanted to eliminate cases that involved minors. In those cases I'm in total agreement with you.

So I'm not assuming anything about the woman. I'm actually trying my best to not consider the sex of the people involved. If it helps, let's assume it is a case involving the question of same sex rape. Either both are men, or both are women.

There will be cases where the accuser makes claims to avoid personal embarrassment or some other ulterior motive. Remember we are only talking about cases where force cannot be shown, and no witnesses come forward. So we are dealing with only credibility, no?

In contractual law the terms and validity of the contract, assuming it is valid, has precedent over credibility. Credibility should only come up in questions such as if the terms of the contract were adequately met.

In criminal law our courts have tended to lean toward making the mistake of freeing a guilty person rather than imprisoning an innocent one.

While we would probably agree that any man guilty of rape should be castrated, I still need some convincing to jeopardize a man's or woman's liberty based on the issue of character credibility. The factor of consent has to depend on more than the likeability of the accuser. To properly test our procedures we must consider the case where the accuser is lying. How do we reconcile that?

Buttercup said...

"Remember we are only talking about cases where force cannot be shown, and no witnesses come forward. So we are dealing with only credibility, no?"

We are talking about cases where there's a lack of evidence of physical force. Most instances of rape do not have witnesses. Most instances of rape occur between people who know one another.

We're not "only" dealing with credibility, though credibility will most certainly impact the jury's judgment, as it does in every single legal case (by the way, a lot of contract law comes down to contract interpretation which in turn comes down to an argument over what the parties believed they were agreeing to - credibility is absolutely key here and it comes up all the time in the law).

But, it's never JUST about credibility. There's always circumstantial evidence, some more compelling than other, and that comes in. As do witnesses who though they may not have seen the rape, maybe they say the two people before or after the incident.

The issue again is not taking away any burden from the accuser (be they a man or a woman), it's defining what they have to proove.

In rape, bottom line, the prosecutio must prove that sex occurred without the consent of the victim. The prosecution MUST prove that and nothing we've been discussing changes that or makes the burden less heavy.

Buttercup said...

Starshine - The religious issue is probably part of it but we do have clear laws banning it so it shoudln't stop the authorities.

Greg said...

"In rape, bottom line, the prosecutio must prove that sex occurred without the consent of the victim."

Only in certain states, right? That was what we were discussing. Some states require proof of force while some only proof of lack of consent. And I'm saying that while criminals need to be accountable for their actions, there is a possibility of opening up cases where no rape actually occurred.

One example might be a man who cheats on his wife with another man. What if that man claims he was raped by the other man to avoid admitting he cheated and thus avoid a costly divorce settlement with his wife? We might be able to use an analogy from contract law to help his argument.

"...a lot of contract law comes down to contract interpretation which in turn comes down to an argument over what the parties believed they were agreeing to"

This mostly applies to interpretations of technical terms or vague language or competence of the contracting parties. This does not apply to parties who don't actually read some or all of the contract. In this case it is the participating parties that must be responsible for the terms. What is interesting here is that courts will look at common law in contracts or standards of practice when ruling on interpretations. So if a contract can be shown to have some historic precedent, or in other words, if this has been an acceptable way of doing business in the past, that could win a case.

This idea of historic precedent is similar to credibility. Going back to my cheating man example. If we bring forward character witnesses that say the husband is straight and has never engaged in homosexual activity, and if all we needed was to prove a lack of consent, this could be good enough to win his case.

So an innocent man, the person he had the affair with, could serve jail time because he slept with the wrong person, a person who was motivated by his own interest of saving himself some money. At the same time the woman who is the wife of the cheater is not given any justice either. And in addition to the criminal rape trial, civil charges could be brought against the accused.

So my concern is that I still think we have this loophole with the lack of consent only burden. While it might make it easier to convict guilty people; it would also seem to make it easier to convict innocent people.

If we consider having available only the burden of proving force, then society can still compensate for the shortcomings of the courts by education. So maybe laws that mandate that public and government funded private schools provide information on rape prevention and awareness?

Also maybe the concept of force needs to be revisited. Based on this post my understanding is that we are talking about physical force. Perhaps a definition of psychological force must be added, something along the lines of coercion if this does not already exist. This would probably apply to those cases where the victim trusted the rapists. I’m thinking of situations where a pre-established non-sexual relationship already existed (like family members and co-workers), but not in situations where the relationship has the possibility of leading to sexual activity, like a date.

(I like over-thinking too, so feel free to tell me to shut up if I start hurting your brain or patience.)

Buttercup said...

I said: "In rape, bottom line, the prosecution must prove that sex occurred without the consent of the victim."

You said: "Only in certain states, right? That was what we were discussing. Some states require proof of force while some only proof of lack of consent."

Above, I should have said that the prosecution must prove that the sex was "against the will" of the victim. I believe that's true for every state.

Then, the next question is, how do you prove that something is "against the will." One way would be to have evidence of physical force or other type of duress. If that is present, the assumption is that the victim resisted - that sex was against the victim's will - thus necessitating the force.

Another way to prove that the sex was "against the will" of the victim is to prove a lack of consent by putting in the testimony of the accuser and accused, testimony of potential witnesses, and circumstantial evidence. Perhaps physical evidence as well.

Our disagreement is that you think making the prosecution have to prove physical force makes it less likely that an "innocent" person will be convicted of rape, whereas I don't.

As I've said many times, and this will be the last time, the distinction is about what must be proved, not who has the burden. The prosecution - when proving lack of affirmative consent as opposed to the presence of physical force - has an equally high burden and I don't think for a minute that it heightens the risk of a wrongful conviction.

The other thing I have not commented upon is that you seem to think people are willy-nilly bringing up rape charges. Again, the reality is that most people who allege rape often end up going through more trauma because of the reactions of the public - which is often exactly what you are expressing and comes down to suspicions that the victim is lying or brought it upon themselves. Though there are some publiczed cases where it does indeed appear like unfounded allegations were made, it would be a mistake to assume that that happens with any frequency. I certainly haven't seen or heard about it. What I do hear and see is that vicimts of any type of sexual violence often experience shame and are extremely hesitant to come forward.

Far from having the issue of too many people bringing false allegations, the real issue appears to be that too many victims continue to be afraid to come forward and seek justice because of how they know they will be treated by society and the legal system.

Greg said...

I'm not assuming willy-nilly charges; I'm focusing on specific situations, however small a minority, to draw out your opinion. You have specific knowledge that I lack that I'm trying to get to as efficiently as I can.

To answer a question from an old post of yours, this is the part of your blog that I enjoy, when you expose your mind and thought process. Everyone has passions and expertise in something. When it comes out, it is beautiful to witness. Like watching fish swim. But I love language and logic.

This makes the girly parts tolerable. 8) Thanks, you've given me some stuff to think about.