# If you were a judge



## Traveler (Mar 17, 2018)

On another thread it was stated that the American judicial system is "PRO-RAPE", and that unless the woman was beaten it is difficult to obtain a conviction.

Let us examine that. First, we must look at the issue from the view-point of the judge.  Let us look at ALL cases where the word of one person is weighed against the word of another person. Imagine that you are the judge. You have a case before you where one person is asking for relief for a loan. You, the judge, ask that person if he/she has any proof that a loan was made ? The person answers, "No, your honor".  

You, the judge, then ask the person who is being sued, "Did you receive a loan from the plaintiff ?"  Answer: "No, your honor". 

What do you do ? With no proof of a loan ever being made, how can you possibly find for the plaintiff ?  You, as the judge, must rule "case dismissed". Does that verdict make you biased against the plaintiff ? No, of course not. You, the judge, have your hands tied. Without any proof,there is nothing you can do.

The same problem occurs in a rape case, if the woman has not been beaten. It comes down to a matter of one person's word against another's word.  This is especially true in date rape situations. The man's fingerprints are all over the location. But, it in a dating situation, that is to be expected. 

The woman may have gone to the hospital and the lab results absolutely prove that his DNA was removed from the woman. What, exactly does that prove ? It proves that there was ****** completion. It does not prove that there was rape. 

As the judge, what do you do ?  Do you assume that the woman is telling the absolute truth and instruct the jury to believe the woman and not the man ? If you, the judge, did so, the case would absolutely be over-turned on appeal. 

There can be no doubt, what-so-ever, that some women are raped. There can be no doubt, what-so-ever, that some men are rapists. The problem is how do we prove rape  "beyond a reasonable doubt", if there is no sign of a struggle ?

The problem is compounded when alcohol is involved. It is not reasonable to conclude that since a woman was intoxicated she could not possibly have gone willingly to the bed. She may, repeat may, have felt one way that night but another way in the morning. How are we to know for certain  ? 

This is a very difficult issue. Just because a man is found not guilty, it does not follow that there is a pro-rape judicial system. Just as in the case of the alleged loan, how are we to determine who is telling the truth ?


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## RadishRose (Mar 17, 2018)

Another woman debate. Same issues, different hats. I'll pass on this one, thanks.


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## Traveler (Mar 17, 2018)

RadishRose said:


> Another woman debate. Same issues, different hats. I'll pass on this one, thanks.




It is my hope that we can look at this issue and discuss any possible options.  Do people think that the American justice system is "pro-rape"?
I would hope that it is not but others may have some thoughts.


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## Dragonlady (Mar 17, 2018)

Much depends on which state the accusation is being is being tried in


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## Traveler (Mar 17, 2018)

Dragonlady said:


> Much depends on which state the accusation is being is being tried in




How so ? Please explain.


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## Shalimar (Mar 17, 2018)

Hmmm, unless there was a duplication, as far as I recall, I made such a post, referencing the Canadian judicial system. I am not sufficiently  knowledgeable re American system to comment.


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## Traveler (Mar 17, 2018)

Shalimar said:


> Hmmm, unless there was a duplication, as far as I recall, I made such a post, referencing the Canadian judicial system. I am not sufficiently  knowledgeable re American system to comment.




Ok.  If you could change something about the Canadian system, what would it be ?


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## MarkinPhx (Mar 18, 2018)

Traveler,
    Hypothetical  comparing a civil case about a loan that is disputed in in a civil court is a lot different then a case of a felony crime of rape. The two don't mix at all.


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## Butterfly (Mar 18, 2018)

It is never up to the judge to tell the jury whom to believe; that is the purview of the jury alone.  The jury alone is the "trier of fact."


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## Warrigal (Mar 18, 2018)

DNA is not the only evidence that juries have to take into account.
****** predators these days seem to like filming their exploits on smart phones, especially when the victim is unconscious..
If police were more proactive and diligent with their investigations it might be possible to secure more convictions.

This man raped unconscious women in hospitals where he was a nurse...

http://www.news.com.au/world/europe...y/news-story/34f88e7012214a034f24a9a797bd71cf

This one had a criminal career spanning 15 years before he was brought before the courts. He rendered his victims insensible and used them as props in his own self made porn videos.

https://www.smh.com.au/national/28-years-jail-for-filmed-rapes-of-drugged-women-20090630-d3sj.html

The trouble is the girl may have trouble being taken seriously if she reports a rape to the police. She is told that she has no evidence and it is her word against his. So she goes away. However, if men reported for rapes were to be placed on a watch list and checked for admissions on social media, more of them might be pulled up before they had in excess of a dozen victims.


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## 911 (Mar 18, 2018)

I wasn't sure that I wanted to post on this issue, but here goes. First, when a woman claims that she has been raped, she will be taken to a hospital where they will complete a rape kit. I am not going to explain all what that involves. You can look it up. Rape is normally a violent act and so besides taking blood and semen samples, along with any hair follicles found and scrapings under the fingernails, bruising on the walls of the inside of the vagina are also present. The bruising and/or scarring is generally proof that a rape "probably" took place. Most juries that I have been in court with generally do find the defendant guilty when bruising is present and evidence from the rape kit also points to guilty. If the defendant has had prior convictions for the same crime or if there are multiple victims that come forward, it makes the case much easier to resolve. In closing, I will say this, courts today, at least in my state, have taken a pro active stance in dealing with rapists. With the number of rapes that have taken place since the 80's, more and more juries are finding for the plaintiff and putting these monsters away. As I have stated in the past, DNA has become a real game changer in crime solving and although DNA alone won't prove a rape, other forensics that are collected using a rape kit certainly do help close a case. 

Generally, the plaintiff has not been the defendant's first ever victim. And so, if other victims come forward, the defendant's fate is pretty much sealed. 

As for the loan issue, I cannot comment on that. That's a civil case, which I have seldom been involved in.


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## Warrigal (Mar 18, 2018)

Thank you, Ike. It is good to hear that things are improving for complainants. One thing that has improved over here is that defendants who choose to represent themselves can no longer cross  examine the victim.


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## Camper6 (Mar 18, 2018)

My comment on this. I think the guy is in deep trouble if there is a complaint.  The tendency now or the trend is to believe the woman in just about every case.  The guy is guilty till proven innocent.


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## Camper6 (Mar 18, 2018)

MarkinPhx said:


> Traveler,
> Hypothetical  comparing a civil case about a loan that is disputed in in a civil court is a lot different then a case of a felony crime of rape. The two don't mix at all.



That's not a fair statement.
The point he is trying to make is that without evidence it's one person's word against another whether it's a civil case or a felony.

So how do you rule after hearing the evidence or lack of evidence.


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## Sunny (Mar 18, 2018)

Without any evidence, there's probably little chance of a rape conviction.  But what if this man has previously been accused of rape by other women?  At what point would a jury start
looking very intently at this man, on the premise that usually when there's smoke there's fire?


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## Traveler (Mar 18, 2018)

Warrigal said:


> The trouble is the girl may have trouble being taken seriously if she reports a rape to the police. She is told that she has no evidence and it is her word against his. So she goes away. However, if men reported for rapes were to be placed on a watch list and checked for admissions on social media, more of them might be pulled up before they had in excess of a dozen victims.




Excellent idea. I didn't know it was possible to monitor social media. If you are correct, and I hope you are, this would be a great tool to use in bringing those evil men to justice.


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## Traveler (Mar 18, 2018)

MarkinPhx said:


> Traveler,
> Hypothetical  comparing a civil case about a loan that is disputed in in a civil court is a lot different then a case of a felony crime of rape. The two don't mix at all.




Of course there is no comparison between a civil matter and a felony crime of a heinous nature. All I was attempting to do was to show that in any case of one persons word against another word it can be difficult to make a ruling when there is no other evidence.


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## Traveler (Mar 18, 2018)

Warrigal said:


> Thank you, Ike. It is good to hear that things are improving for complainants. One thing that has improved over here is that defendants who choose to represent themselves can no longer cross  examine the victim.




I am glad to hear that. I hope that the U.S. has similar laws to protect the victim.


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## C'est Moi (Mar 18, 2018)

Sunny said:


> Without any evidence, there's probably little chance of a rape conviction.  But what if this man has previously been accused of rape by other women?  At what point would a jury start
> looking very intently at this man, on the premise that usually when there's smoke there's fire?



This is one issue that disturbs me greatly; many times a judge will not allow a jury to hear of previous charges or convictions.   I do NOT understand this.   If a jury can see that there is a pattern with a disturbed individual, why doesn't the jury get all the facts?


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## Camper6 (Mar 18, 2018)

Sunny said:


> Without any evidence, there's probably little chance of a rape conviction.  But what if this man has previously been accused of rape by other women?  At what point would a jury start
> looking very intently at this man, on the premise that usually when there's smoke there's fire?



You can't bring that up in court.  The jury won't hear of previous cases.

It's one case at a time.


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## Traveler (Mar 18, 2018)

Butterfly said:


> It is never up to the judge to tell the jury whom to believe; that is the purview of the jury alone.  The jury alone is the "trier of fact."




First, I wish to state that I am *not *an expert on the law.  You are correct. Judges do not tell the jury what to believe. But this I do know, judges quite often instruct the jury on what it may or may not consider. When we watch news broadcasts of interviews with jurors (after the case has been settled) jurors occasionally say, "If I had known X, Y or Z, I'd have voted differently.


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## 911 (Mar 18, 2018)

Traveler said:


> First, I wish to state that I am *not *an expert on the law.  You are correct. Judges do not tell the jury what to believe. But this I do know, judges quite often instruct the jury on what it may or may not consider. When we watch news broadcasts of interviews with jurors (after the case has been settled) jurors occasionally say, "If I had known X, Y or Z, I'd have voted differently.



And this is why previous arrests or convictions cannot be presented as evidence. The jury may (probably) would become biased. If I was arrested for stealing a car and 6 months later I was back in court on the same charge, but a different car being stolen, some or maybe all jurors would believe, “Well, he stole one car, so he probably stole this car too.” 

And like I stated earlier in this thread, but not everyone is reading all of the posts, rape convictions are getting better due to better forensics. When a woman is raped, her body does not sucrete the necessary vaginal fluids that are normally secreted when she is sexually aroused during pleasant sex. Therefore, during a rape, the female is terrorized and no vaginal basil fluid will be sucreted. Not having this fluid being sucreted during pleasant sex is what causes tearing or bruising of of the vaginal walls. This trauma is found during the use of a rape kit and is used in court. 

This is ends my discussion on this issue.


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## C'est Moi (Mar 18, 2018)

But why shouldn't the jury be biased, if the defendant has a history of violent crime (or whatever)??   I don't get this.


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## Shalimar (Mar 18, 2018)

Camper6 said:


> My comment on this. I think the guy is in deep trouble if there is a complaint.  The tendency now or the trend is to believe the woman in just about every case.  The guy is guilty till proven innocent.


Not in Canada. I have been present during over forty rape trials. Conviction is by no means assured without heavy forensics, even then, sentences often not commensurate with crime. Without further evidence of violence, vaginal  bruising is often attributed to rough role play. The more powerful and respected the man, the more difficult to convict. Jurors in this country are forbidden to comment on previous trial. (Sadly, there is still a lingering perception that a woman who did not put up an obvious fight, is, in some way, to blame.)


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## SifuPhil (Mar 18, 2018)

C'est Moi said:


> But why shouldn't the jury be biased, if the defendant has a history of violent crime (or whatever)??   I don't get this.



I feel the same way, especially given the recidivism rate these days.


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## Camper6 (Mar 18, 2018)

C'est Moi said:


> But why shouldn't the jury be biased, if the defendant has a history of violent crime (or whatever)??   I don't get this.


The jury should not be biased. That's the point. You could get framed because of prior incidents. You have to understand the law.A fair trial on the case at hand. It could work the other way as well. What if there are complaints of previous incidents which turned out to be false accusationations.


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## Camper6 (Mar 18, 2018)

It's so easy to set up a guy and ruin his career . Just the accusations alone can do it.

Not rape. Just other stuff.


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## Olivia (Mar 18, 2018)

Camper6 said:


> It's so easy to set up a guy and ruin his career . Just the accusations alone can do it.
> 
> Not rape. Just other stuff.



All right, I consider that. What I would like to hear is for what reasons do you think that a woman would set up a guy that way?


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## Warrigal (Mar 18, 2018)

Camper6 said:


> The jury should not be biased. That's the point. You could get framed because of prior incidents. You have to understand the law.A fair trial on the case at hand. It could work the other way as well. What if there are complaints of previous incidents which turned out to be false accusationations.



This is a critical point. Each charge must be examined on the evidence to determine guilt. Previous convictions only become relevant during sentencing and after only guilt is established. Without this principle the presumption of innocence is meaningless.


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## Traveler (Mar 18, 2018)

Warrigal said:


> This is a critical point. Each charge must be examined on the evidence to determine guilt. Previous convictions only become relevant during sentencing and after only guilt is established. Without this principle the presumption of innocence is meaningless.




Excellent point. Well said.


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## Traveler (Mar 18, 2018)

Sentencing for ANY crime varies widely.  The rank and file of the American public is serious pissed off about this. "The people" want stiffer sentencing, especially for crimes of violence. Make no mistake about it. Rape *IS *a crime of violence. 

In America, the average (national) sentence for rape is 9.8 years. With time off for good behavior, a convicted rapist serves, on average, 5.6 years. The recidivism rate for convicted rapists is quite high compared to other crimes of violence.


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## Traveler (Mar 18, 2018)

Good news. The 45 year old man (Esterly) who ran away with a 16 year old girl (Amy Yu) was just arrested in Mexico. Federal Marshalls will be bringing them both back to the U.S. in the next several days.  The parents of Amy Yu have said that the girl went with Esterly willingly. BUT, I would point out that a 16 year-old girl is not mature enough to give consent. We don't know yet, but it can be assumed that Amy Yu has been sexually molested/raped. Once again, a 16 year old can not consent to sex with a 45 year old man. The law is very clear on this point.

In addition to any other charges, it is likely Esterly will be charged with kidnapping, a Federal felony. That charge alone will almost certainly keep him off the streets for the rest of his life.


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## SifuPhil (Mar 18, 2018)

Traveler said:


> ... We don't know yet, *but it can be assumed that Amy Yu has been sexually molested/raped.* Once again, a 16 year old can not consent to sex with a 45 year old man. The law is very clear on this point ...



So would not a jury be instructed not to make such an assumption?


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## Traveler (Mar 18, 2018)

SifuPhil said:


> So would not a jury be instructed not to make such an assumption?




*I *am assuming. I can do that because I am *not *on the jury.  In court, however, there will not be any *assuming*. The young girl will almost certainly, with the help of a counselor, tell the whole story. If she says they had sex, that is rape. The law calls that statutory rape.


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## SifuPhil (Mar 18, 2018)

Traveler said:


> *I *am assuming. I can do that because I am *not *on the jury.  In court, however, there will not be any *assuming*. The young girl will almost certainly, with the help of a counselor, tell the whole story. If she says they had sex, that is rape. The law calls that statutory rape.



And then they would need physical evidence, i.e. DNA, rape kit, etc. Just her word would not be enough. 

Would not the fact that this allegedly happened in Mexico also have a bearing on the trial? Can a court charge an American for a crime committed in another country? I don't know.


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## Traveler (Mar 18, 2018)

SifuPhil said:


> And then they would need physical evidence, i.e. DNA, rape kit, etc. Just her word would not be enough.
> 
> Would not the fact that this allegedly happened in Mexico also have a bearing on the trial? Can a court charge an American for a crime committed in another country? I don't know.




When it comes to children being violated by an adult, entirely different standards are used. And, in my opinion, rightly so. 
Additionally, the crime first occurred in Pennsylvania. He carried her across numerous state lines. That alone is a crime. There are so very many charges pending against that guy.


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## SifuPhil (Mar 18, 2018)

Ah, okay, thank you.


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## Traveler (Mar 18, 2018)

Traveler said:


> When it comes to children being violated by an adult, entirely different standards are used. And, in my opinion, rightly so.
> Additionally, the crime first occurred in Pennsylvania. He carried her across numerous state lines. That alone is a crime. There are so very many charges pending against that guy.




I'm getting a bit off topic but just for general information the crime of carrying a woman across states line for "immoral purposes" is called the Mann Act, often referred to as white slavery.  Due to the ambiguous wording of "immoral purposes" the Federal law has been amended. Once, any adult male who carried any female across a state line could be convicted under that law, even though she was an adult and wanted to go with him. Such notables as Frank Lloyd Wright and Charlie Chaplin were arrested for carrying an adult female across a state line for "immoral" purposes. In both cases the women were adults and wanted to be with their lover. The most infamous case, however, was that of Jack Johnson a black heavy-weight World Champion, who married a white woman.  Quite naturally, they traveled together. He was arrested under the Mann Act when they crossed a state line. 

Today, however, the law is only used when a minor is transported across a state line, OR any woman is transported for the purposes of prostitution. Thus, an adult man who meets an adult prostitute and takes her across a state line AND, she then engages in prostitution, the man can be convicted of violation of the Mann Act (ie white slavery).


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## Camper6 (Mar 18, 2018)

SifuPhil said:


> And then they would need physical evidence, i.e. DNA, rape kit, etc. Just her word would not be enough.
> 
> Would not the fact that this allegedly happened in Mexico also have a bearing on the trial? Can a court charge an American for a crime committed in another country? I don't know.



Yes.  When you enter another country you follow their rules.


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## 911 (Mar 18, 2018)

Ok, let’s back up a bit. A judge will very seldom allow a defendant’s past crimes be brought up during trial due to biasing the jury. If a judge allows this to happen, more times than not, an appellate court will overturn the conviction and order a new trial, if the defendant is convicted. 

As as for the age of consent and statutory rape laws and the information regarding the Mann, I have no idea where you get your information, but maybe only about 75% of what you wrote is actual. I’ll leave it at that. The Mann Act has been revised a number of times since its inception back around 1910.


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## Traveler (Mar 18, 2018)

911 said:


> Ok, let’s back up a bit. A judge will very seldom allow a defendant’s past crimes be brought up during trial due to biasing the jury. If a judge allows this to happen, more times than not, an appellate court will overturn the conviction and order a new trial, if the defendant is convicted.
> 
> As as for the age of consent and statutory rape laws and the information regarding the Mann, I have no idea where you get your information, but maybe only about 75% of what you wrote is actual. I’ll leave it at that. The Mann Act has been revised a number of times since its inception back around 1910.




I'm sorry to argue with you but everything I said about the Mann Act is fact.  It can all easily be googled. 911, if you disagree, about anything in particular, please let me know and I'll be happy to give you the exact citation. As I said in my post the Mann Act has been amended several times.


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## Shalimar (Mar 18, 2018)

Camper6 said:


> Yes.  When you enter another country you follow thei rules.


Indeed. I recall American sailors visiting Esquimalt  Navy base near Victoria BC. There was an accusation of rape regarding a young local girl, those accused were quickly removed from Canadian jurisdiction.


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## Warrigal (Mar 18, 2018)

SifuPhil said:


> And then they would need physical evidence, i.e. DNA, rape kit, etc. Just her word would not be enough.
> 
> Would not the fact that this allegedly happened in Mexico also have a bearing on the trial? Can a court charge an American for a crime committed in another country? I don't know.



We have laws in Australia that allow Australian men to be charged in Australia for pedophilia in other countries, typically Thailand, Indonesia and Malaysia. There is a sex tourism industry and underage boys and girls are the victims. The perpetrators are invariably men from other countries, including other Asian ones. 

From Smart Traveller, a federal government website.



> Australians who commit child sex offences while overseas can be investigated and prosecuted under Australian law.
> 
> http://smartraveller.gov.au/guide/all-travellers/laws/pages/child-sex-offences.aspx


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## Butterfly (Mar 18, 2018)

C'est Moi said:


> This is one issue that disturbs me greatly; many times a judge will not allow a jury to hear of previous charges or convictions.   I do NOT understand this.   If a jury can see that there is a pattern with a disturbed individual, why doesn't the jury get all the facts?



Because the law in most states says previous charges cannot be brought up in the guilt phase of the trial.  The judge is bound to obey the law whether he agrees with it or not.


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## C'est Moi (Mar 18, 2018)

Butterfly said:


> Because the law in most states says previous charges cannot be brought up in the guilt phase of the trial.  The judge is bound to obey the law whether he agrees with it or not.



Yes, I'm aware of that.   I just don't believe it should be so.


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## Traveler (Mar 18, 2018)

C'est Moi said:


> Yes, I'm aware of that.   I just don't believe it should be so.




I agree. I don't know why a jury is not allowed to hear of previous convictions.  Perhaps only a trial lawyer, or a judge, could explain it to us.


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## Dragonlady (Mar 18, 2018)

Just because a person committed a crime  2 years ago, doesn't mean he/she is guilty this time. He /she is being tried for a particular recent crime - not on his/ her past. Knowing a person's past history could unduly influence a jury to erroneously convict for a crime he/she did not commit.


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## SifuPhil (Mar 18, 2018)

Camper6 said:


> Yes.  When you enter another country you follow their rules.



I meant can an _American_ court charge someone for a crime in another country?


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## Traveler (Mar 19, 2018)

SifuPhil said:


> I meant can an _American_ court charge someone for a crime in another country?




Yes, absolutely.  Guys who are in the military are serving time in various U.S. Military prisons for crimes committed off base in other countries. Also, Americans who pass counterfeit money overseas. And, I think, but am not positive, that an American who kills another American, overseas. And , of course, any other crime against the U.S. Government.


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## Camper6 (Mar 19, 2018)

C'est Moi said:


> But why shouldn't the jury be biased, if the defendant has a history of violent crime (or whatever)??   I don't get this.



O.K. what if the woman has a history of crying rape and is a loose cannon with her sex life and none of her claims of rape stood up in court.  Should that be allowed to be brought out in court? 

You are only looking at one side of the coin.  Many, many, many, men have been falsely accused and their careers have been ruined.  It doesn't even have to get to court.  Just the accusation does the trick.  The tendency now is to believe the accuser.


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## Camper6 (Mar 19, 2018)

SifuPhil said:


> I meant can an _American_ court charge someone for a crime in another country?



Yes they can if they have enough evidence. For instance treason against the United States.  If you murder an American in another country you can be charged in an American court and they ask for extradition to get you back to your own country.  Some countries will. And some countries won't.

International law is tricky. It's not cut and dry.


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## Traveler (Mar 19, 2018)

The main question, however, remains unanswered.  Is the justice system in the U.S. and/or Canada, "pro-rape" as someone has previously stated?  Or, is it simply a matter of not being able to prove a crime has been committed ?

http://nydailynews.com/opinion/convictions-sex-crimes-cases-hard-article-1.1053819


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## Dragonlady (Mar 19, 2018)

They are not so much "pro" rape as they are pro denial that it ever happened or that it was not consensual. Too many years it has been considered the woman's fault (for various  rationalizations) - and still is in many middle Eastern countries - which, of course, exonerates the rapist.


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## Butterfly (Mar 19, 2018)

IMHO to take the position that courts are pro-rape is ridiculous on its face.  In order to be pro anything you have to be in favor of it, as in  "pro-abortion."  Neither courts nor the general population of this country is pro-rape -- I do't know anyone who thinks rape is a good thing in any scenario.


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## Butterfly (Mar 19, 2018)

Traveler said:


> I agree. I don't know why a jury is not allowed to hear of previous convictions.  Perhaps only a trial lawyer, or a judge, could explain it to us.



You can quite easily trace the history, development, and interpretation of the law by searching online.  If one wants to change the law, one needs to take it up with one's legislature, which writes the law, not with the courts, which must abide by the law as written and codified.


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## Camper6 (Mar 20, 2018)

Traveler said:


> *I *am assuming. I can do that because I am *not *on the jury.  In court, however, there will not be any *assuming*. The young girl will almost certainly, with the help of a counselor, tell the whole story. If she says they had sex, that is rape. The law calls that statutory rape.



You don't know the whole story yet.  But.  What if she told him her age was 18 and she went willingly and maybe even suggested it.  Who knows?  

That's no defense in court.  However if it is true it does mitigate the sentence. If the jury hears it and she testifies the truth.


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## Warrigal (Mar 25, 2018)

Camper6 said:


> O.K. what if the woman has a history of crying rape and is a loose cannon with her sex life and none of her claims of rape stood up in court.  Should that be allowed to be brought out in court?


It is only the accused that has the benefit of not having past criminal history revealed in court. The plaintiff is fair game for having her name blackened in all sorts of ways, including inference during cross examination. 

However, if the defendant relies of the defense of "good character" and produces witnesses to that end then the prosecution can counter with evidence of bad character. 

The defendant can choose not to testify (remain silent) and can therefore avoid cross examination. The plaintiff has no such right.


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## Camper6 (Mar 25, 2018)

That's how the justice system works. 

Innocent till proven guilty.

Testifying means you better have your story told truthfully.


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