Republican Senate Nominee: "Legitimate" rape victims don't get pregnant

An astute reader pointed out that the prosecution appears to have made an egregious error in the trial. Instead of prosecuting the sexual assault on grounds that the victim was “mentally defective” (subsection 2 of this code), they charged that sexual assault took place because the victim was “physically helpless” (subsection 3). Without the subsection 2 evidence, the Court could not consider the mental capacity of the victim and hence ruled only on physical helplessness, perhaps wrongly. As noted above, disability rights advocates still have major concerns about the majority’s holding on subsection 3 grounds, as it appears to set a higher standard of proof of “physical helplessness” for disabled victims relative to able-bodied ones.
http://thinkprogress.org/justice/2012/10/03/947981/court-requires-disabled-rape-victim-to-prove-she-fought-back-calls-for-evidence-of-biting-kicking-scratching/

Around the Blawgosphere: Media Getting Rape Case Wrong, Bloggers Say; Will LinkedIn Take Over?
Oct 12, 2012
By Sarah Randag

In 2008, a Connecticut jury found Richard Fourtin Jr. guilty of sexually assaulting a woman with severe cerebral palsy. But in 2009, state appellate court, considering "the sole issue of whether the jury reasonably could have found that the state introduced sufficient evidence to prove that the victim was unable to communicate her lack of consent to the defendant’s sexual advances," later concluded that the state didn't make its case, and reversed. Last month, the state supreme court affirmed the appellate court's decision.

This week, legal bloggers have taken on coverage in the Connecticut Post, The Huffington Post and elsewhere characterizing the Connecticut Supreme Court's ruling in State v. Fourtin (PDF) as one in which the court overturned the case on the grounds that the victim—who can't speak and can only move one finger—could have resisted her attacker but didn't.

"To lawyers, criminal defense lawyers at least, it was quite a solid decision," Scott Greenfield wrote at Simple Justice. "The defendant was charged under a narrow statute, limited to the rape of an unconscious person, and the victim may have had cerebral palsy, but wasn't unconscious. There were other subdivisions of the law under which the defendant could have been charged, but wasn't. The prosecutor blew it. He charged the defendant for the wrong crime."

Popehat's "Ken," is as outraged as anyone else familiar with the case, but writes that he reserves some of his outrage for the prosecutors. "I'm outraged that the prosecution made a lousy and seemingly inexplicable call. I'm outraged that someone who sexually assaulted a profoundly handicapped woman goes free because of incompetence. But I'm not outraged that the state has to prove that you're guilty of the specific crime you're charged with to put you in prison. That's fundamental to due process."

"Gideon" first blogged about the ruling last week at a public defender. But he did a follow-up post this week to take on an op-ed at the Hartford Courant written by a 21-year-old recent college graduate, and also noted in an update of the same post that Boing Boing updated its initial coverage of the case to include links to his and Popehat's posts.
http://www.abajournal.com/news/article/around_the_blawgosphere_state_v_fourtin_linkedin_blogging/

However, there are still problems with that law as it pertains to disabled individuals and at least one state legislator has already said that the law must be re-written and clarified because it does place an unfair burden, to physically demonstrate resistance, on such people when they are sexually assaulted.

Force or threat of force is what should define rape and an assault/rape would cover both of those conditions just fine

Never had a problem with real rape situations just the nonsense of either invalid consent after the fact or claims that without a man doing any threating actions the woman still fear to tell him no.

It is far far too must to hope for that the law will be written carefully enough not to end up back to the 1950s and take the way the rights of mental handicapped people to form sexual relationships and even to married.

And lack of consent can be indicated by just saying, "No" or "Stop" or by trying to push the attacker away.

That seems to equate a person being told to stop as an attacker. Being told to stop implies being a way into the process and what is a lady doing going that far, which might be a considerable distance, with a person considered an attacker.

Force or threat of force is not a requirement for an act to be considered rape in any of the 50 states--and it is no longer a requirement under federal law either.

The issue has nothing to do with the rights of mentally disadvantaged people. The woman's mental limitations were not a part of the case, that's why the prosecution blew the case. But it is unlikely that any court would rule that someone with the mental capacity of a 3 year old is competent to consent to sex or enter into a marriage. So, you are off on another of your irrelevant tangents.

you are going to keep running into problems in defining rape...

Real rape in the normal meanings that been understand for hundred of years is one thing but this new anti-male nonsense is not going to get a lot of conviction

Perhaps you should ask one of those women in their 90's who are raped in their nursing home beds by someone known to them, generally a staff member or caretaker they know.

Rape convictions is down to around 20 percents in the military because normal men and women do not agree with how rape is now being define.

So until you can removed juries from the equation you are going to keep running into problems in defining rape as due to regret after the fact and invalid consent due to voluntary drinking of adult women and so on not matter how you rewrite the laws.

In addition, a judge trial is likely to be more informal and easier for you to conduct than a jury trial. For example, in the absence of a jury, your judge may not insist on strict adherence to courtroom procedural rules and rules of evidence. And, of great importance, you can reasonably expect a judge to ignore inflammatory, irrelevant, or other inadmissible evidence from your adversary that slips by you because of your unfamiliarity with evidence rules. Jurors, however, may well be influenced by the improper evidence even if the judge tells them to disregard it.

You're the only one who has a problem defining rape.

In 2011, there were 240 trials and 191 convictions for sexual assault in the US Armed Forces.
http://able2know.org/topic/196911-1

http://falserapesociety.blogspot.com/2011/12/rape-culture-backfires.html

McClatchy's review of nearly 4,000 sexual assault allegations demonstrates that the military has taken a more aggressive stance. Last year, military commanders sent about 70 percent more cases to courts-martial that started as rape or aggravated sexual-assault allegations than they did in 2009.

However, only 27 percent of the defendants were convicted of those offenses or other serious crimes in 2009 and 2010, McClatchy found after reviewing the cases detailed in the Defense Department's annual sexual assault reports. When factoring in convictions for lesser offenses - such as adultery, which is illegal in the military, or perjury - about half the cases ended in convictions.The military's conviction rate for all crimes is more than 90 percent, according to a 2010 report to Congress by the Pentagon.
. . . .
Making acquittals even more likely, the military is prosecuting more contested cases under a controversial law that broadens the definition of sexual assault. Under the 2006 law, the military can argue that a victim was sexually assaulted because she was "substantially incapacitated" from excessive drinking and couldn't have consented.
. . . .
"There is a pressure to prosecute, prosecute, prosecute. When you get one that's actually real, there's a lot of skepticism. You hear it routinely: 'Is this a rape case or is this a Navy rape case?'"

http://www.mcclatchydc.com/2011/09/21/124823/flawed-new-rape-law-roils-military.html#storylink=cpy

Michael Doyle and Marisa Taylor
WASHINGTON _ Six years ago, Congress tried cracking down on rape in the military. Prompted by disturbing reports of sexual assaults in military academies and war zones, lawmakers rewrote the rules. They wanted to protect victims and help prosecutors.
Now it’s clear that the effort backfired.
The politically attractive but poorly understood legal changes have incited courtroom confusion, judicial frustration and constitutional conflict. Extensive interviews and a McClatchy review of thousands of pages of court documents and internal studies find a congressionally caused crisis of military justice that few civilians know anything about.
The rewritten sexual assault law puts judges “in an impossible position,” the top military appellate court warned. Military lawyers find it “cumbersome and confusing,” a Pentagon task force noted. It leads to “unwarranted acquittals,” Defense Department officials added. And some judges call it unconstitutional.
“The law is an abomination as it is now written,” said Charles Gittins, a former military judge advocate who’s now a defense attorney.
Individual military judges likewise assail the new law. One, Marine Corps Lt. Col. Raymond Beal II, called it “horribly flawed.” Another, J.A. Maksym of the U.S. Navy-Marine Corps Court of Criminal Appeals, blasted it as “poorly written, confusing and arguably absurd.” Yet another, Air Force Col. Don Christensen, called it “almost incomprehensible.”
“If you had 100 monkeys with a typewriter, they'd probably come up with something like this,” Christensen declared during a 2009 aggravated sexual assault case.
A Senate bill introduced in June and proposed by the Defense Department tries to fix the problems that the earlier congressional action created. The bill is pending.
The present law now under fire has particularly complicated trials that involve intoxicated victims and those who say they’ve been assaulted by acquaintances, two common allegations in the military. The confusion about the law can lead to injustice.
Consider the case of a former Air Force enlisted man stationed at California's Travis Air Force Base.
Stephen Prather, 23, had been accused of aggravated sexual assault by an intoxicated guest of a party that Prather and his wife threw in October 2007.
Prather said he and the guest had engaged in consensual sex. The woman, though, testified that she fell asleep and woke briefly to find Prather on top of her. When she awoke again, she said, she found semen on her underwear.
Prather had raised the woman’s alleged consent as a defense. Prosecutors countered that the woman, whom court documents didn’t identify, was too intoxicated to give consent.
The problem was that the rewritten law had shifted the burden of proof involving consent, appeals court judges concluded. Prather, as the defendant, had the burden to prove that the alleged victim was capable of consenting. Under the Constitution, though, it’s the prosecution that’s supposed to shoulder the burden of proof.
This “results in an unconstitutional burden shift to the accused,” the U.S. Court of Appeals for the Armed Forces said of the new law in its February 2011 decision dismissing Prather’s conviction.
Prather already had served almost 11 months of a two-and-a-half year prison sentence. He’s awaiting his discharge papers.
“I just want Congress to know this law has messed up a lot of people’s lives,” he said in a telephone interview from his home in Houston.
“My wife left me. I can’t get a good job. I had to register as a sex offender. My life is ruined. All for something that should have never been a crime to begin with,” Prather added.
Recently, the military decided not to reprosecute Prather. For other military defendants, the legal ambiguity will continue as challenges inundate appeals courts. The Court of Appeals for the Armed Forces will review several challenges to the law in coming months.
Meanwhile, sexual assaults in the military continue.
More than 4 percent of active-duty women and almost 1 percent of active-duty men reported unwanted sexual contact in 2009, according to the latest annual study from the Pentagon’s Sexual Assault Prevention and Response Office.
All told, the military services completed investigations of more than 3,200 suspects in sex-related crimes in fiscal year 2010. Of these, 16 percent faced court-martial.
Heightened political scrutiny of the military’s handling of sexual misbehavior dates at least to the 1991 Tailhook affair, in which Navy aviators aggressively groped women at a convention in Las Vegas.
Congressional involvement accelerated in early 2004, after reports of sexual assaults on female troops in Iraq.
A year later, the Pentagon established an office dedicated to responding to and preventing sexual assault. Lawmakers also directed the Pentagon to review the military’s laws, known as the Uniform Code of Military Justice.
In an 826-page report, the Pentagon ultimately advised that no changes were necessary. Congress thought otherwise and rewrote the sexual assault provisions as part of a fiscal 2006 defense authorization bill. The intention was clear: Lawmakers wanted to assist prosecutors and shield victims.
Rep. Loretta Sanchez, D-Calif., a key proponent of the changes, called them a “major step” in convicting rapists. Skeptics feared otherwise.
“I'm not a member of Congress, and that's their job to do what they think is necessary,” Christensen, the Air Force judge, said during a trial. “I just think it's a prime example of what happens when legislation is influenced by what they see on ‘Oprah’ and what advocacy seekers propose, as opposed to what's really necessary.”
Sanchez’s office didn’t respond to questions this week.
The Pentagon, in a statement to McClatchy on Wednesday, said it was proposing changes “based on trial court lessons learned and appellate court rulings.” The changes were included in a Senate defense authorization bill that was introduced in June.
The current statute includes the crime of “aggravated sexual contact.” This includes sex acts with a victim who’s “substantially incapacitated,” which lawyers say is ill defined. The Pentagon's proposed changes remove the word "aggravated," for example, and more extensively define "substantially incapacitated."
The proposed changes also include eliminating controversial provisions that shift burdens to the defense.
Under the old military code, prosecutors had to prove that the victim hadn't consented. The present measure removed that consent provision. This was supposed to help focus attention on the defendant rather than the alleged victim.
The accused can still claim that the victim consented, by relying on what’s called a preponderance of evidence. This has a lower threshold than the prosecution needs to win a criminal conviction. However, prosecutors can still defeat this so-called affirmative defense if they can show beyond a reasonable doubt that the victim didn't consent.
This burden-shifting poses several problems. It defies logic, for one. If the defense has enough evidence to show consent, then by definition it's raised a reasonable doubt. One military appeals court called this conundrum a “legal impossibility.”
The other potential problem is constitutional. The Constitution puts the burden of proof on the government, but the new law, in certain circumstances, seemed to shift this burden to the defense.
Consequently, the new rules that took effect Oct. 1, 2007, have been causing trouble just as some had warned they would.
"The guys who didn't want to change the law said, 'This is going to happen,' " said retired Army Brig. Gen. Thomas Cuthbert, who thought that some changes were appropriate. "And, for the most part, it did happen."
Cuthbert assisted the subsequent Defense Task Force on Sexual Assault in the Military Services, which urged Congress in a December 2009 report to go back and fix the problems with the new law.
For now, the military has directed military judges to essentially ignore the troublesome portions of the law when they instruct juries. This still leaves judges in what an appellate court called an “impossible position” as they choose between the law Congress wrote and the instructions the military provides.
This is what happened in San Diego with Marine Corps Staff Sgt. Jose M. Medina.
A Marine lance corporal alleged that Medina, a friend, had sex with her in October 2007 while she was incapacitated from drinking. Medina said she’d consented. After he was convicted, he challenged the law.
Unlike in Prather's case, Medina's judge hadn’t instructed the jury based on the law Congress wrote. Instead, the judge read what amounted to old instructions. In doing so, he sidestepped the questionable law but upheld the Constitution. The conviction stood.
"The only course left open, it appears, is for military judges to continue giving 'erroneous' instructions," noted Judge James Baker of the Court of Appeals for the Armed Forces.

Read more here:

For someone so adamant about these issues, you're not well read on the law. It's called trial by judge. Everyone has access to it.

Perhaps you should ask one of those women in their 90's who are raped in their nursing home beds by someone known to them, generally a staff member or caretaker they know.

You're completely off the topic of this particular thread, except that you're proving that Akin isn't the only idiot floating around.

It seems to me Bill that a large number of people in highly paid jobs are making an easy living out of this minefield.

Perhaps it has been laid out as a minefield for that very purpose.