Wednesday, March 03, 2004
Victims and Mens Rea--This Post Brought to You by Cristina*
Mens rea is the legal term that basically means you are looking into the mental state of someone when a crime was committed. It is what changes a crime from Murder I to Murder II etc. It is a pretty simple concempt.
Here is the twist. Rape is the only crime were a victim's mens rea is pertinent. The whole thing turns on whether or not the victim concented to the sexual activity. This makes prosecuting rape terribly difficult.
There are two things that put this at the forefront of my mind 1) Some group has put signs around the law school asking "what is rape", "what is abuse". I think these signs are great as they are actually making me thing. 2) The Judge in the Coby Bryant trial is allowing evidence regarding the victims sexual history into trial.
As to the first issue, when we discussed rape in my criminal law class there was a case that involved "light choking" my classmates thought that this was a clear indicator of rape. Never one to be afraid, I actually raised my hand and reminded them that there are entire sub-cultures around chocking and violence and sex and it is all consensual.
The other problem I see is that someone can show signs of rape without being raped. Physical evidence isn't enough. Typically doctors look for vaginal abrasions but those can happen in other circumstances.
As to the Judge in the Bryant trial. There is a now a whole Rule of Evidence around this (Rule 412). It states that generally a women's sexual past is not admissable in her rape case. Sexual past used to be used to justify rape. I remember hearing about a case were a victim's panties were used as evidence that she was a certain type of women, the type not entitled to protection.
I hate this notion. When in my sexual harrassment class we discussed why we don't want to get into whether or not a women is married when building her sexual harrassment case. Married women don't have more value than non-married women. I don't care how many people a women sleeps with, as long as it was a consensual activity for those involved.
So the women in the Kobe Bryant case is being accussed of having sex with other men around the time she alleges she was raped. This does fit into the exception which allows a victim's past to be looked into if the physical evidence could be from other men. I feell so sorry for the both of them.
Sometimes I feel that we are all victim's of our culture. There is a song in Grease, happy go lucky movie/musical called Summer Lovin. The guys are questioning how far Danny got and one ask "Did she put up a fight?" . It just reflects a notion that is detrimental to both men and women. And fortunately it is a dynamic I have never fallen victim to. I am referring to situations where one person tries to pressure the other to have sex.
I definitely have the women in my family to thank. They raised me to know that my body was mine, to be comfortable with it, to be comfortable talking about sex. And they taught me what not to stand for (not that all rapist give warning signs), I just don't tolerate certain behaviors and I expect to be treated in a certain way.
Most sexual assaults against women are done by a friend or family member of the victim. One in three women you know has been the victim of a sexual assault or a molestation. If anything is to come out of this rambling post, I want you to think. I want you to think about what you can do to reverse this trend. Whether it be impowering a girl to love her body or empowering a young man to realize that his body is a temple too. Sex is so much more special when no convincing has to occur on either side.
I was once talking to this rich long island boy I used to be friends with. I told him about the one in three statistic and he said, "not in my neighborhood" as if sexual violence was a poor people problem. I pointed out to him that yes 1 in 3 of his women too. There are women being molested by their uncles/fathers/brothers or family friends. There are women who can't talk because they have never been allowed to talk about their bodies. If you have never been allowed to talk about your body, how are you going to know how to use your voice to say, "something is happening to me and I want it to stop."
Not talking about sex, treating it like a dirty thing, is what allows really dirty things to happen.
I've totally digressed from the "mens rea" discussion. I guess I am mad, I just don't want anymore victims.
*If you don't know Cristina is my first name, Nina is my nickname. When I am at work or at school I go by Cristina, it sounds more lawyerly.
Mens rea is the legal term that basically means you are looking into the mental state of someone when a crime was committed. It is what changes a crime from Murder I to Murder II etc. It is a pretty simple concempt.
Here is the twist. Rape is the only crime were a victim's mens rea is pertinent. The whole thing turns on whether or not the victim concented to the sexual activity. This makes prosecuting rape terribly difficult.
There are two things that put this at the forefront of my mind 1) Some group has put signs around the law school asking "what is rape", "what is abuse". I think these signs are great as they are actually making me thing. 2) The Judge in the Coby Bryant trial is allowing evidence regarding the victims sexual history into trial.
As to the first issue, when we discussed rape in my criminal law class there was a case that involved "light choking" my classmates thought that this was a clear indicator of rape. Never one to be afraid, I actually raised my hand and reminded them that there are entire sub-cultures around chocking and violence and sex and it is all consensual.
The other problem I see is that someone can show signs of rape without being raped. Physical evidence isn't enough. Typically doctors look for vaginal abrasions but those can happen in other circumstances.
As to the Judge in the Bryant trial. There is a now a whole Rule of Evidence around this (Rule 412). It states that generally a women's sexual past is not admissable in her rape case. Sexual past used to be used to justify rape. I remember hearing about a case were a victim's panties were used as evidence that she was a certain type of women, the type not entitled to protection.
I hate this notion. When in my sexual harrassment class we discussed why we don't want to get into whether or not a women is married when building her sexual harrassment case. Married women don't have more value than non-married women. I don't care how many people a women sleeps with, as long as it was a consensual activity for those involved.
So the women in the Kobe Bryant case is being accussed of having sex with other men around the time she alleges she was raped. This does fit into the exception which allows a victim's past to be looked into if the physical evidence could be from other men. I feell so sorry for the both of them.
Sometimes I feel that we are all victim's of our culture. There is a song in Grease, happy go lucky movie/musical called Summer Lovin. The guys are questioning how far Danny got and one ask "Did she put up a fight?" . It just reflects a notion that is detrimental to both men and women. And fortunately it is a dynamic I have never fallen victim to. I am referring to situations where one person tries to pressure the other to have sex.
I definitely have the women in my family to thank. They raised me to know that my body was mine, to be comfortable with it, to be comfortable talking about sex. And they taught me what not to stand for (not that all rapist give warning signs), I just don't tolerate certain behaviors and I expect to be treated in a certain way.
Most sexual assaults against women are done by a friend or family member of the victim. One in three women you know has been the victim of a sexual assault or a molestation. If anything is to come out of this rambling post, I want you to think. I want you to think about what you can do to reverse this trend. Whether it be impowering a girl to love her body or empowering a young man to realize that his body is a temple too. Sex is so much more special when no convincing has to occur on either side.
I was once talking to this rich long island boy I used to be friends with. I told him about the one in three statistic and he said, "not in my neighborhood" as if sexual violence was a poor people problem. I pointed out to him that yes 1 in 3 of his women too. There are women being molested by their uncles/fathers/brothers or family friends. There are women who can't talk because they have never been allowed to talk about their bodies. If you have never been allowed to talk about your body, how are you going to know how to use your voice to say, "something is happening to me and I want it to stop."
Not talking about sex, treating it like a dirty thing, is what allows really dirty things to happen.
I've totally digressed from the "mens rea" discussion. I guess I am mad, I just don't want anymore victims.
*If you don't know Cristina is my first name, Nina is my nickname. When I am at work or at school I go by Cristina, it sounds more lawyerly.
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