Sunday night thoughts and opinions on rape, jury nullification strategies, and the role of the courts

I’m stuck still thinking on those damn articles by Paul Elam on jury nullification in man-on-woman rape trials and the potential consequences that may spring from that.

First off, let me state it here plainly: I take issue with how rape shield laws are being applied. Evidence that is of actual relevance to the case should of course be admitted, yet unfortunately that’s not what’s happening in enough cases that it’s causing quite a stir and is creating an impossible situation for mounting an effective defense. When the man has been falsely accused, that seriously matters. Yet activist judges can and do take the law into their own hands and by their discretion have the power to decide these things, for better or worse. This is a travesty, absolutely, because it too often results in a miscarriage of justice. And if it’s going to continue this way, I am tempted to say we’d be better off without such laws then.

Word justice highlighted with a yellow markerAnd this speaks to why I take such major issue with Paul Elam’s encouragement for people to blanketly vote not guilty in all man-on-woman rape trials. While we don’t want to risk sending innocent people to prison for crimes they did not commit, I don’t see how adding more activists in the courtroom is bound to help restore justice. No, instead it just aims to swing the pendulum in the opposite direction that is no more fair or just, when the real focus ought to be holding police and prosecutors accountable for blatant misconduct or negligence where warranted. Because they have jobs to do and it shouldn’t include their own activist leanings either (which so happens to be prejudicial against black males in particular — and let us not forget that the rich often operate as if above the law and somehow manage to get away with it even if they wind up charged and face trial).

Our legal system is indeed a tangled web that won’t likely be untangled anytime soon. And in the meantime tons of people suffer at its hands, especially those convicted on drug charges since the State just loves prosecuting those cases.

But I don’t see how adding even more activists to the pile is in any way going to prove beneficial in the long-run. I try to imagine what sort of backlashes will spring up in response to that if ever the MRM does grow in numbers and many do wind up embracing this jury nullification strategy. I can imagine some feminists feeling it their obligation to play hyper-biased activist juror running in the opposite direction in other types of cases, in an effort to send a message right back to the men’s rights advocates. And then what? What might happen should everyone become activists for their pet causes when selected for jury duty? Well, according to some of the MRAs I’ve interacted with on this topic, that’s precisely what they want to have happen because they see that as hastening the demise of our system. So, at root, that’s what this strategy is angling for? I don’t know if that’s Paul Elam’s own position on the matter or just chortling from his minions, but it’s a rather disconcerting proposition. Assuming law and order could be broken down on such a scale, where does that leave us as a society? Every man and woman for him/herself?

Though I don’t think that’s what will wind up happening. If I know one thing about this system it’s that it won’t go down without a mighty fight. What could stop citizens and State employees from pushing for criminal proceedings to be handled by the judge directly without a jury present, or perhaps to simply try to overhaul the jury selection process in total? See, there’s always a way around these sort of schemes, and I’m willing to bet the public would knee-jerkingly go along with some such alternative if they felt the courts were being undermined. And there again innocent people may face prosecution, this time without the benefit of a jury of their peers to hear them out. That might very well turn into a travesty too.

In my worldview, if we want the system to function properly, we the citizens operating within it in whatever capacities, from cops to judges to jurors, must conduct ourselves properly and objectively assess all evidence presented to the best of our abilities. That is our duty and our responsibility to one another. If not us, then who else? If we worry that pertinent information or evidence is being withheld, we should be able to demand greater access so as to more deeply scrutinize the methodologies employed in accumulating evidence for the case in question. And here I can see where rape shield laws will get in the way of that, so perhaps that’s where we need to start directing more of our focus, on getting those either repealed or more strictly limited to certain types of information that would only likely bias the trial without adding anything of real relevance. But, in so doing that, we have to get to a point where we Americans learn to accept that just because a person was or is “promiscuous” by some people’s standards, that in no way means they are deserving of being violently attacked. Until we can lay these prejudices to rest, justice cannot be served and feminists will continue arguing in favor of suppression of information.

Then, when we get down to hearsay and “he said vs. she said” situations where there’s no real way to determine whether consent was granted, we step into some seriously sticky terrain. And personally, much as people aren’t going to want to hear this and worried as I am that people will mistake me for minimizing date rape situations to mere trivialities (that is not my aim), I think it may be better to handle some of those cases outside of court. Because where there’s no real way to determine what went on, especially between two drunk individuals who weren’t apparently dangerously violent toward one another, what can the courts realistically be expected to do? To simply take one’s word over the other’s? That’s not necessarily right either.

I’ve personally been subjected to enough negative sexual experiences in the past to feel comfortable enough saying that just because someone is in the wrong and oversteps the bounds and mistreats someone else doesn’t automatically make it a criminal matter. It entirely depends. Perhaps in a case where one party transmitted a serious and incurable STD to the other in what one claims was a non-consensual tryst, or when rather serious physical injuries were acquired, that’d be a matter for the courts to decide on. But in what I’m going to callously refer to here as “garden variety” date rape situations, he may be a major asshole who deserves comeuppance but that doesn’t mean cops and the courts are the best option for handling it necessarily. That’s my opinion.

And this is where a lot of folks and I don’t see eye to eye. I just do not see the State as being deserving of playing the role of arbiter for every dispute that arises out here in society. Some things we can handle better among our own. Sometimes the best course of action is putting the word out to warn others that someone mistreated you so that they can take precautions, and this can be achieved a number of ways. But unfortunately there are times when turning to the cops will prove to be more of a pain than it’s worth, and that’s not intended to deter anyone from going to the police if they’ve been injured. Just sayin’ is all.

I personally never involved the cops in anything I’ve been through in this respect, and the reason why had a lot to do with how I’d heard cops had treated others in positions similar to my own, and it just didn’t seem worth it. And sometimes it’s just a matter of the evidence not being sufficient for the D.A. to want to take the case to trial, as is very common especially among these sort of he said/she said situations. Going back to his residence or having him over isn’t asking him to mistreat us, and poor treatment shouldn’t be accepted if it can be anyhow avoided, BUT in the eyes of the law that can look quite foggy. And when it comes to both persons being very drunk, hmmm…I’m not sure what the hell people are supposed to do about that other than learn to be much more careful about how much they’re drinking and who they’re leaving with. Shitfaced isn’t the best state of mind to assess the character of another person you’re about to go somewhere private with. It might start off consensual but what if he moves into doing things you don’t like? Well, at his home and naked underneath him is a pretty vulnerable position to be in when figuring this out. I’m speaking very seriously here.

We must do more to better protect ourselves, because this hook-up culture combined with rape hysteria has everything out of wack nowadays. And I don’t think the courts are in a position to remedy all of this for us. If we could understand that and do what is within our power, then a lot of rapes and sexual mistreatment probably wouldn’t occur. Because it tends to be a crime of opportunity, especially date rape. But this is swerving off into topics I probably should create a video or two to delve into, when time and energy permits.

[Edited for greater clarity Jan. 29th, 2015.]

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