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Utopia Talk / Politics / Civic damages for rape
jergul
large member
Wed Feb 21 04:07:54
BBC

Woman brings civil case against man cleared of raping her
By Lucy Adams BBC Scotland correspondent

7 hours ago

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A former St Andrews University student is suing a man who was cleared of raping her following a High Court trial two years ago.

The landmark case is thought to be the first time in almost a century a woman has mounted a civil action in Scotland after an unsuccessful rape prosecution.

Last year, another woman Denise Clair won a civil case against footballers David Goodwillie and David Robertson.

But she took the action after the Crown had decided against prosecuting them.

Footballers lose appeal over rape finding

In the latest case, the woman, known as Miss M, has brought a civil case against Stephen Coxen for personal injury.
Image copyright Vic Rodrick
Image caption Stephen Coxen was cleared of rape in 2015

Mr Coxen had been charged with raping the student at her flat while she was drunk during freshers' week in 2013.

In November 2015, a jury found the case against him not proven, a verdict which has the same effect in law as not guilty.

Miss M has now mounted an action through the civil courts, seeking just under £100,000 in damages and financial losses.

She has been granted funding to cover her costs by the Scottish Legal Aid Board and the case will begin in March. She says she has been supported throughout the case by the University of St Andrews.
Image copyright SNS and Ciaran Donnelly
Image caption David Robertson (left) and David Goodwillie faced a civil action after a decision not to prosecute them

In the previous case, Ms Clair, who had waived her anonymity, took her action against Goodwillie and Robertson after the Crown Office chose not to prosecute the footballers.

The judge in the civil court found the rapes had happened and awarded Ms Clair £100,000 damages from the men.

Miss M told BBC Scotland she had decided to mount her civil case in 2016, before Ms Clair's case became public knowledge.

She said: "After the criminal case I sought legal advice and that's when I realised that taking a rape case to a civil court was possible."

Miss M said she had received funding from the Scottish Legal Aid Board and also from the Scottish Women's Rights Centre and Rape Crisis Scotland.
Image caption The woman bringing the case was a student at the University of St Andrews

"I feel that the criminal case did fail me and I hope that through this a spotlight will be shone on the process," she said.

"Hopefully the civil route will get some justice for me and my family."

She said she was not bringing the case to make money.

"It is highly unlikely I will see any of the money," she said, as the legal aid board will take back its costs.

"For me it has never been about the money. It is the only route I have left."

"It is an extremely difficult process to go through.

"I did think after the criminal trial that I wouldn't be able to continue and carry on into another avenue of legal proceedings but I wasn't ready to give up.

"I don't want to look back in 20 years and realise I could have gone down a different route.

"I want to do all I can do at the moment."

Mr Coxen's lawyers, Thorley Stephenson in Edinburgh, confirmed he would be defending the action but declined to comment further.
Image caption Sandy Brindley form Rape Crisis Scotland said a civil action would not be the first choice for victims

The burden of proof required in civil cases is lower than criminal cases.

In a civil action, the case must be proved "on the balance of probabilities" whereas in criminal cases it must be "beyond reasonable doubt".

The chief executive of Rape Crisis Scotland, Sandy Brindley, said that since last year's Denise Clair case a number of women had spoken to her about the possibility of a civil action.

What they want is justice through the criminal justice system
Sandy Brindley, Rape Crisis Scotland

She said: "People are saying to us they are desperate for some sort of validation or justice after rape. The civil route is not easy but it does give some possibility of justice."

Ms Brindley added: "I think there are a lot of barriers to a civil rape cases, not least how to fund it.

"It is also not people's first choice. What they want is justice through the criminal justice system.

"If you listen to the words of Denise Clair, she was always really clear this was not the justice she was looking for.

"We really need to concentrate on the criminal justice system and why it feels like it has let down so many rape complainers."

================

This I think is the future.

1. Criminal courts in jurisdictions that can award damages directly in cases where the balance of probability is met, but not beyond reasonable doubt: Prosecution should consider the likelihood of damages being awarded when considering going to trial.

2. Criminal courts that allow pleabargains should pursue cases where it is likely a person will agree to a plea-bargain on a lesser charge if beyond reasonable doubt is questionable.

3. Women should always pursue civic damages and legal trusts and public funding should allow for pro-bono pursuit (with fees covered on a contingency basis perhaps).

The problem we are solving is extremely low conviction rates for sexual attacks.
delude
Member
Wed Feb 21 04:56:08
This has always been an option and practice for years here in the states...

civil action taken.
jergul
large member
Wed Feb 21 05:02:00
In what fraction of a % of cases?
delude
Member
Wed Feb 21 05:05:44
Not entirely sure, that would have to be researched.

But on the other side of the coin, you have to consider how many overturned cases there has been for those wrongly convicted due to new evidence or DNA. Where they spent a significant portion of their lives in prison for a crime they didn't commit.

The point is, the justice system isn't going to be perfect and never will be. And though you seek a balance in regards to victims rights, which you have that prerogative. You *seemingly* ignore those of false accusations and convictions.
jergul
large member
Wed Feb 21 05:08:57
In the US I would recommend prosecuting more agressively. The plea-bargain system gives a lot of leverage. People will often accept a lesser sentence if the "beyond reasonable doubt" threshold is a toss-up (or even less - a 15% conviction probability would be a decent threshold for pursuing prosecution).
jergul
large member
Wed Feb 21 05:13:20
Delude
The principle is better 10 rapists accept lesser sentences or pay monetary damages, than 10 rapists go free.

Overturned convictions are another fraction of a % thing.

But you know my fundamental views are perhaps different than yours: A criminal conviction - even for murder - should not be a life-ending affair.

To balance out the possibility of wrongful convictions if nothing else. Let restitution be meaningful in such cases.
TJ
Member
Wed Feb 21 10:34:10
Murder is a life ending affair.
jergul
large member
Wed Feb 21 10:40:23
For some.
TJ
Member
Wed Feb 21 10:44:24
Murder of a person is life ending. It is safe to say all.

chuckle
Nimatzo
iChihuaha
Wed Feb 21 11:53:21
Presumtion of innocence and due process are overrated. In the western world crime levels are more than manageable from societies perspective, there are few crimes that actually pose a direct thread to the order. Terrorism and mass shootings, not sex crime or even murder, and most because of the psychological effects. What would be a threat to the social order is the erosion of due process and collapse of trust. 50 murderers should go free before an innocent person is put in jail.
jergul
large member
Wed Feb 21 14:56:41
Nimi
Due process and the presumption of innocence are maintained nicely thank you.

Though ultimately, consent should rest in the same realm as self-defence. A person would have to prove he had consent to what otherwise would be sexual assault, in the same way a person has to prove he acted in self-defence in what otherwise would be murder.
smart dude
Member
Wed Feb 21 15:01:34
^retarded

I put my penis inside someone.

I killed someone.

They aren't in the same "realm." Don't be so obtuse.

Sex is a normal everyday thing that people do all the time. Killing people is not. Are you allergic to nuance?
jergul
large member
Wed Feb 21 15:04:12
The same goes true for self-defence for what would be common assault for that matter. You have to prove you acted in self-defence.

Or consent in some cases. I could cry all I wanted about someone wrestling me to the ground, then chokeholding me, but it would not help much if it turned out I was in a judo match.
Rugian
Member
Wed Feb 21 15:04:45
This is ridiculous. When someone claims self-defense, the fact that the underlying violence being justified actually occurred is self-evident. When someone claims that they didn't sexually assault someone, you very often don't have that same evidence. This is literally asking a male suspect to prove a negative. Ridiculous.
jergul
large member
Wed Feb 21 15:05:40
Enough nuance for you smart dude?
jergul
large member
Wed Feb 21 15:09:50
Ruggy
If the underlying violence cannot be proven in a sexual assault case for lack of physical evidence, then it would probably be a mistake to admit having had sexual relations with the victim. But criminals make mistakes all the time.

The question is if there is some reason that it is ok to stick things into another person's body without being able to prove consent if challenged.
jergul
large member
Wed Feb 21 15:11:05
I thought integrity of self principles was supposed to be a libertarian-tard strong suit. I guess not.
Rugian
Member
Wed Feb 21 15:13:20
"then it would probably be a mistake to admit having had sexual relations with the victim"

Because there's no such thing as consensual encounters that are falsely reported as rape? Or are you saying that suspects should commit perjury in those situations?
jergul
large member
Wed Feb 21 15:17:28
I think they should have proof that the encounter was concentual. Otherwise, there are rules against self-incrimination.
jergul
large member
Wed Feb 21 15:18:20
consensual* Wow, that was actually how it was spelled.
Rugian
Member
Wed Feb 21 15:59:09
Almost like it's actually pronounced with an s instead of a t.

"I think they should have proof that the encounter was concentual."

Great, sexual contracts for all. That sounds fun.
smart dude
Member
Wed Feb 21 16:38:55
Jergul still doesn't get it. What if the sexual act (rape or consensual) never occurred to begin with? What if someone accuses me of rape and I never even touched her? Do I still have to prove I didn't rape her? That's ridiculous. What's the difference between proving sex was consensual and proving the sex didn't even happen?

Meanwhile with homicide (self-defense or murder) there's a dead body. There's no question someone got killed. So now we have to proceed with the business of establishing responsibility. We can't just shrug off a dead body.
smart dude
Member
Wed Feb 21 16:46:16
Also, killing a person isn't automatically going to get me put on trial for murder. If the DA or the grand jury is confident enough in my side of the story (i.e. self defense) then I won't be indicted to begin with. So in many ways consent IS the same as self defense. The former is simply more difficult to dispute based on evidence. Why? Because sex is normal behavior. Killing isn't.
Nimatzo
iChihuaha
Thu Feb 22 01:44:58
Consent laws will do nothing, unless we are talking about legalized contracts, which will not matter either, since ultimatly consent can be withdraw with non verbal commands mid stroke and you are a rapist.
jergul
large member
Thu Feb 22 03:34:36
SD
If there is not physical evidence or overwhelming circumstansial evidence, then how could you be found guilty?

Compare it with common assault then. The same self-defence rules apply.

Sexual acts that are contested as non-consensual are more uncommon than assault.

Nimi
Its not really even consent laws. Its a matter of interpreting existing laws. We pretend that consent claims are reasonable doubt.
Cold Rod
Member
Thu Feb 22 06:25:52
"If there is not physical evidence or overwhelming circumstansial evidence, then how could you be found guilty?"

LOL I think this was pointed out earlier...tell it to those that were found wrongly convicted after years in prison due to new evidence and DNA analysis.

defendant's Lawyer: "you have nothing to worry about, nothing to fear, I believe you didn't do it, I know you didn't do it."

Evidence presented by the prosecution; "Your honor, I present you that the defendant did actually interact with the victim on *insert date* at the market, as you can see in the video, they exchanged a greeting. On this date they interacted again at the market, and on this date the video again shows they interacted, and finally on this date once again, the defendant interacted with the defendant. The defense maintains that the defendant was simply flirting and trying to obtain the victim's number. About 18 hours later, she was raped and the description she gave was an exact match of the defendant who was seen at the market at the aforementioned dates. This shows that the defendant lied when he testified that he has never met her before."

court scene stuff, deliberation.

Verdict: Defendant you are found guilty.

Spends years in prison.

New evidence comes out(may include DNA that originally wasn't allowed in court) , or victim changes their testimony that it wasn't him.

But jergulsebrod believes you have nothing to worry about.


jergul
large member
Thu Feb 22 10:09:16
CR
What a stupid example. Anyone can be convicted of doing things they have not done.

The question here is where the burden of evidence would rest if a person does something that is criminal if non-consensual.

(the other irregularity is assisted suicide incidentally. It would follow that that should be legal for as long as safeguards are in place to assure meaningful and informed consent by the person requesting assistance).
Cold Rod
Member
Thu Feb 22 13:26:27
" Anyone can be convicted of doing things they have not done."

Precisely the point as you are providing fodder for more occurrences of such.
jergul
large member
Thu Feb 22 15:14:58
CR
That buddy is an argument against having a criminal justice system at all.

"We cannot punish crimes because innocent might be punished"

My view is that it is an argument for having a reformative criminal justice system.

Someone may be wrongfully sentenced. Let then the person have a life left to enjoy his restitution in.
Cthulhu
Tentacle Rapist
Sat Feb 24 09:22:19
What's wrong with rape anyways? Either we put women in their place, or women will put us in our place. You are either the abused or the abuser, the powerful or the powerless. What's so bad about being in power?
Nimatzo
iChihuaha
Sat Feb 24 11:36:59
Ask Saddam Hussein.
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