Is there really a big problem with acceptable/legal behavior not being agreed upon? Isn't the problem usually that the guy claims "it was consensual?" Similarly, when police consider what a woman was wearing, isn't usually in the context of figuring out who's story they believe? In other words, the police aren't thinking "well, she wore a sexy dress and followed him to his room and therefore deserved to get raped" but rather "well, she wore a sexy dress and followed him up to his room so maybe his claims that it was consensual are true." I get that you don't want police to blame the victim, but isn't it just as/more important that they correctly figure out who the victim is?
> "well, she wore a sexy dress and followed him up to his room so maybe his claims that it was consensual are true."
how is that reasonable? maybe we should ask what she claims and what he wore.
but wait, what clothing indicates whether someone is a rapist? tshirts and tatty jeans? polo shirt? suit? of course clothing implies nothing.
why does her wearing "sexy" clothing -- to say nothing of "sexy" being all about the male perception and desires, as if her own clothing can't be worn for her own reasons -- imply anything about her desire for sex?
> "isn't it just as/more important that they correctly figure out who the victim is?"
if you're only asking men their opinion, and believing whatever assumptions you want to make about women based on their clothing rather than their word, the system is already tilted towards men getting want they explicitly want, and women not being listened to.
i'm not saying believe rape victims without scrutiny. i'm saying have a little more compassion and support and actually listen to their words as much as you listen to the man's words, and care about their clothes as much as you care about the man's clothes.
When the police and justice system collects information about clothing, sexual history with defendant, alcohol and other drugs, they do so because these are legally relevant facts to establishing a narrative that's otherwise often too lacking in material basis.
The police and justice system wish to know these facts so they know the strength of some legal narrative and what counternarratives can be supported. Wearing sexy clothing fits a narrative of consensual sex. Sexual injuries fits a narrative of sexual assault. Drug use damages the credibility of any party. Prior relationship with defendant can fit narratives about the likelihood that someone might agree to sex.
These are facts that defense will ask, and it's best for the prosecution that the police ask first on their terms to control the progression of fact discovery, as opposed to letting the defense ask first on their terms.
Why not be interested in what the man was wearing? Maybe because the prosecution, in anticipation of defense strategy, thinks it won't matter. The job of the police is not to act as a neutral 3rd party to the justice system, proportionally investigating claims on the strength of their merits. The secondary job of the police is to set up cases for the prosecution, even if it's unfair to the defense. The primary job of the police, and any agency, is to establish its own credibility, robustness, and scope as an agency. Note that I am speaking descriptively, not prescriptively.
I agree that victims are often doubted because of drug use. (I think that's an error by police; instead of doubting the victim they should be treating the victim as a vulnerable person who was more likely to be abused)
But can you show me any examples where a rapist who claimed he had consent was doubted because he had been using drugs?
It's not an error by police to ask about drug use, because it's the police's job to control fact discovery while setting up a case for the prosecution. The prosecution cares about drug use because they're trying to evaluate the strength of defense narratives.
Imagine a situation where the government doesn't ask first, and instead defense asks first on their terms. That's incompetent.
Isn't that mostly because of the legal process? When a guy is accused of rape, he's the one on trial. Mentioning his drug use might be excluded as prejudicial, even though the jury might find it relevant.
Of course it's not reasonable to conclude that he's telling the truth on the basis of her clothing. But my point is that it's also not reasonable to treat any mention of her clothing as off limits. It's just one piece of evidence.
If a woman is raped, and the guy claims it was consensual, do you think a woman should be able to point out that, "if I had any intention of sleeping with him I wouldn't have been wearing those underwear?" Or should that piece of evidence be excluded because clothing is never relevant?
First, what do clothing say about intention? I would like to live in a world where clothing is all about keeping a balanced body temperature and nothing else.
The second question is of course, does it even matter what intention people had? Maybe it should not be the police job to determine which person is more believable, but rather just write down the statement of the accuser and the accused, and collect any evidence that a prosecutor might find valuable in their decision to either pick up the case or not.
The third question is then, if police would have a policy to investigate anything reported, will there be enough resources? How much added taxes would be needed to have a 100% impartial police whose only duty is to investigate and deliver reports to prosecutors who then do the judgement on whom to believe.
> First, what do clothing say about intention? I would like to live in a world where clothing is all about keeping a balanced body temperature and nothing else.
If someone walks into a bank wearing gloves and a ski mask in the middle of a hot local summer where that's decidedly uncomfortable clothing, are you going to assume nothing at all about their intentions? Would you think it wildly unreasonable if someone else did?
I would like to assume nothing about intentions. In a perfect world, I would like to just assume that person has a good reason, like maybe they work in a cold storage. Same if a person walked in naked. Maybe they just dislike clothes.
In a inperfect world we instead use clothes to signal intention and to read that intention rather than just talk and make judgement based on evidence. A police that had infinitive funds, I would assume that clothes would just be an item in a otherwise long report, something that the prosecutor can use to form a informed decision.
If the prosecution, in anticipation of defense strategy, believes that what a person is wearing, among a collection of facts, may be utilized by defense, then of course it's to prosecution advantage to have the police ask first on their terms, as opposed to letting the defense ask these questions on their terms. That way the police and prosecution can control the progression of fact discovery.
It's because prosecutors understand factors to legal victory that clothing, drug use, prior relationship with defendant, and other things like that are relevant.
Speaking descriptively, the job of the police is not to act as some neutral 3rd party of justice and investigate all claims of the truth in proportion to their merit. It is the secondary job of the police to set up cases for the prosecution without regard for defense interests. It is the primary job of all agencies ever to manage organizational credibility, robustness, and scope.
Sure, and that means we need to change the "factors to legal victory" in order to make the courts effective for these kinds of crimes. Otherwise people just won't go to the police or use the court system, which is what happens today.
Is the analogy really that good? A pilot will never be called upon to engineer a plane. Lots of good "hackers" will get stuck if they have to design an algorithm.
I think this is it. To be good at mathematics you need a considerable amount of time to sit and do mathematics. The only way someone is going to fund this as part of a job is if you're already a mathematician.
Wow, a real patent lawyer in a patent law thread. You don't belong here, but I'll upvote whatever you have to write.
I have a comment and a question:
The comment. Summary judgement does not accomplish what I think sheepleherd was proposing. As you say, if you get a summary judgment against you, you go home. That means that a judge has to be convinced that there is definitely no case in order to issue one. What's needed, rather, is a speedy determination of who seems to be in the right. It should not be final but should determine who pays going forward.
The question. What do you see as the problem in cases like this? Or do you see a problem?
Well, first of all, I have to confess: I'm not a patent lawyer. I'm a regulatory lawyer.
And, just so we have our terminology straight, summary judgment is actually different from the motion-to-dismiss phase I was describing. In super simple terms, the latter happens after the parties have has the chance to gather evidence and seeks to determine whether it is legally possible for a party to win at trial. Therefore it occurs late in litigation, after parties have already spent a lot of money (but still before trial). The former typically occurs before evidence is even gathered to determine whether the plaintiff could legally win even if all of his or her allegations were factually true.
As for the threshold fee-shifting idea: I think it's probably not a good one. There are cases where it could help, but if the judge gets her threshold determination wrong, then it makes life even harder for a less wealthy litigant. The simplest solution, which many countries have implemented, is simply a loser pays system for legal fees. I'm not sure this is ideal either, but I think it is at least better.
There also is usually a possibility that the judge could require the loser to pay after the fact, if she determines that the case was especially un-meritorious. Another possible reform would be to loosen the standard that judges apply in choosing whether to award fees in this way.
I was pointing out a thought process that I thought would work better and more rationally (it's the way parents adjudicate disputes, i.e. what's really at stake here, and yes, parents do get to legislate) rather than making an "official proposal".
But inasmuch as it was an official proposal, the proposition was not that the all costs would shift to one party; it was that if you lost the preliminary ruling on the main point you could decide if you wanted to spend money on further litigation or look for a settlement; in a more nuanced way, if the preliminary ruling was 80-20 culpability/damages conceivably the winner might also wish to litigate further. I wasn't shifting the legal costs, I was educating the decisions along the way.
There potentially is something to be gained from more "loser pays" legal fees, but I was not making that proposal.
Patent lawyer or no, you're still more qualified than the average participant.
I'm not sure what criteria you're using to judge that the proposal would be worse for a less wealthy litigant. Surely the proposal would be better in cases where one side is clearly right? The cost of patent litigation is currently huge. The only way a non-wealthy litigant can participate is with lawyers on contingency. No?
But I suspect fixing the legal costs is only a part of the patent problem. My understanding is that cases like the OP regularly go to verdict and find for the troll.
> I agree that the UBI should be flat, because anything else is equivalent to changing our tax brackets; and if we want to do that, we should just change our tax brackets.
This was such a dumb sentence in an otherwise interesting post.
This article seems to miss the role of theories in physical sciences. When we talk about 'cause' we understand that to mean that some chain of events, governed by the rules of physics, lead to the result. Yes, those rules of physics were arrived at largely as a result of observation of correlations, but no one is going to propose military coups leading orange harvests as a fundamental physical law on the basis of observed correlation.
