Here are some examples to show why numerical odds are irrelevant to determining reasonable doubt.
Imagine you are a juror in two cases back to back. Both involve the same allegations and remarkably similar evidence, which is the following:
A women has her purse snatched on the street. Remarkably, she recognizes her assailant; it is a guy she went to high school with. There’s a third party witness, a guy on the street who saw that back of the guy as he is running away and gives a description consistent with the appearance of the guy identified by the victim: average height man with an average build with short dark hair.
The defense puts on a single witness: the defendant’s mother, who testifies that the defendant was playing scrabble with her at the time of the crime. She also notes that she remembers the victim from back in the day and she always had a vendetta against her son.
In trial number 1, you, the juror, believe the victim and not the mother. In fact, you reach a firm conviction BASED ON YOUR INTUITION that the mother is lying. You appropriately vote to convict.
In the second trial involving a whole different cast of characters, you think there’s a chance the mother may be lying but a part of you believes what she is saying. You appropriately vote to acquit.
How on earth do you expect to convert these scenarios into mathematical odds? That is decidedly NOT the task that you are asked to perform as a juror. In fact, if you started quoting studies regarding the prevalence of mothers lying on behalf of sons in criminal trials during deliberations that would be juror misconduct. The misconduct would be worse if you started doing your own independent research into probabilities that would be necessary to make any kind of estimate regarding mathematical odds.
Oh, it’s easy, if you have a mind that’s mathematically inclined. Typically for that kind of thing you just ask what odds you’d need to bet that the accused was/was not guilty in the exact scenario (that exact accuser, that exact defendant, that exact mother), and then convert odds to probability. Why on earth would you think that the probability of guilt was the same with someone you assessed as a liar as opposed to someone you thought was telling the truth?
Law is law. It’s not math. It involves hearing and seeing live and documentary evidence, and making an assessment based on the law, which is given to a jury via instructions that have been carefully argued, vetted and approved. There is really nothing mathematical about it, nor should there be. You don’t assess a person’s veracity based on math. You assess it by watching and listening to that person, and comparing the testimony to the other pieces of evidence that have been presented to you.
We are not talking about only kids here; we are talking about the laws of consent that would apply to any sexual encounter. That’s not the way people have sex. I’m a hetereosexual middle-aged woman. I don’t want to have to sign a consent form every time I have sex. I have real problems with laws that purport to change the ways most people engage in consensual, private, intimate activity. For one thing, such laws are not going to change the ways people have sex (including law abiding people). The law needs to reflect that reality.
@MidwestDad3, the problem with a consent app is that someone could change her/ his mind after electronically signing the app. Or someone could be coerced to sign it, or say that they were.
@midwestdad3, yes, these rape cases will inevitably come down to he said/she said regardless if the standard is “no means no” or “yes means yes.”
As a matter of public policy, I prefer “yes means yes” for the purpose of directing sexual attitudes in our society. My preference for this standard is not outcome driven (i.e., I don’t know or care if it would result in more criminal convictions); rather, it is societally driven (i.e., I hope it will lead to better and more fulfilling relations between the sexes, and make men more cognizant of their behavior, thereby preventing some of these matters from ever becoming crimes in the first place).
You may think that it’s impossible to assign odds to jury verdicts, but bookies do it nevertheless. Bookies were giving odds and accepting bets on the Pistorius trial. Some of us naturally assign odds or probabilities to things because it’s the way we think. If “75% chance” doesn’t help you understand a standard of evidence, don’t think of it that way.
Bookies are calculating the odds of a future event – how the case will eventually be decided. That is quite different from a juror’s role. But whatever.
I think “yes means yes” introduces its own set of risks. If that standard is adopted it should be “yes means yes until there is a no.”
To my mind, what made the case at hand so difficult is that the actions of both participants indicated that there was a “yes” on some level to begin with. During the encounter the victim either changed her mind to a no, or if she felt “no” from the start she voiced her “no.” And the defendant stopped. I suspect the jury wrestled with this issue: Did she communicate her “no” soon enough (before penetration of any kind), and did he cease immediately, or did he take 1, 2, 5, or 10 seconds to react. If I’m remembering the testimony correctly the victim said no three times, but it was somewhat ambiguous as to at what point in the process those “no’s” occurred.
Timing is everything in these cases, and a split second can mean the difference between a lifetime on the sexual offender registry. So I just don’t see how “yes means yes,” without more, solves the problem.
I’d like to go back to the issues of “beyond a reasonable doubt” and the idea that handling rape cases should be left to the police, and not handled by the colleges at all.
In a case where the two people know each other and the encounter occurred in private with no witnesses, there can be clear evidence of sexual intercourse. However, in cases of this type, I think it is exceedingly difficult to prove “beyond a reasonable doubt” that it was not consensual, if the man maintains that it was. This is especially true if the victim is in shock (which happens) and does not take the actions immediately afterward that someone would take if she was in full mental control. The difficulty of proof holds, no matter how low your standard is for being persuaded “beyond a reasonable doubt,” unless it drops to something close to “preponderance of evidence.” As I have said before, I think we have to adhere to the “beyond a reasonable doubt” standard in criminal proceedings.
This means that reporting the act to the police is unlikely to cause any action for a victim who is not underage. If the two are college students, they may still be in the same dorm, same cafeteria, same classes . . . There was a case a while back where a male student was barred from the dorm where the female student lived (the only official consequence of the rape accusation), but he obtained access from another student and harassed the woman in her dorm.
To me, this seems horrible. Why should the woman have to leave her university to escape further contact?
I’d also like to go back to the issue of the odds of one in a trillion, for reasonable doubt. This remark has been taken out of context of the paragraph in which I originally posted the comment. There, I asked whether the consequences if the person is found guilty mattered for the appropriate level of reasonable doubt. Perhaps legally, it does not. But I think that an exceedingly high standard for “beyond a reasonable doubt” would be morally required for me personally, in a capital case.
So, no fears, nottelling, and others, I am very unlikely ever to be impaneled on a jury. (I won’t bother estimating the odds, here.)
A standard of “yes” means “yes” does not do anything to handle the issues that I raised in #1251, in the circumstances that I described. The man asserts that the woman said “yes.” She says she did not. Prosecutable case? I doubt it.
Why do you think it is so unlikely that you woud ever be empaneled on a jury? It is certainly unlikely that you’d be on a jury in a death penalty case; but why do you think you’d be passed over in the run-of-the-mill shoplifting or drunk driving case? Or civil litigation, from simple (personal injury) to complex (complex securities fraud, say). You likely wouldn’t be selected for a complex patent case involving your field of expertise, but other than that, I don’t see any reason that you wouldn’t be selected.
I have heard that attorneys selecting jurors do not like to hear lengthy, nuanced answers. Perhaps this is not true. I have only one experience with the voir dire, and in that case, I was peremptorily challenged.
^^“I am very unlikely ever to be impaneled on a jury.” I thought the same thing. But many years ago I was chosen, and served, despite being a lawyer. It was an amazing experience.
I’m with prospect1 here. I favor Yes Means Yes, not because I think it would lead to more rape prosecutions or more convictions- I don’t-- but because I don’t want a guy to think he is entitled to do anything he wants to a woman, up until she objects. The whole attitude that he should get away with whatever he can get away with is deeply offensive to me.
“To me, this seems horrible. Why should the woman have to leave her university to escape further contact?”
Yes, it is horrible when people are raped and doubly horrible when they can’t prove the rape. It is also a problem (a less awful one, but still a problem) when a university faces an ambiguous case where we can’t know what happened.
If you’re a teenager, it’s an emotional catastrophe to have your heart broken and then have to see your ex in the only campus dining hall three times a day, every day. Maybe the ex is canoodling with the person s/he left you for or cheated on you with. It’s not hard to imagine that a teenager could look back on a night of bad sex during the relationship and understand it as a way to get that ex off campus.
I just got a new case this morning. The freshman accuser had a significant other from high school back home, and expressed a lot of guilt and distress about having cheated at college via text message the morning after the encounter. The accusation followed later. It’s quite possible that there was an assault. It’s also possible that this 18-year-old finds that interpreting a regrettable night as an assault relieves an unbearable burden.
I do not envy universities who have to balance students’ interests in cases like this.