Re: Bad idea: Punishing false accusers

On Wed, 26 Nov 2003 20:51:47 +0000, Ann <[EMAIL PROTECTED]> wrote:

>On 26 Nov 2003 09:48:38 -0800, [EMAIL PROTECTED] (Rich) wrote:
>
>>"John James" <[EMAIL PROTECTED]> wrote in message news:<[EMAIL PROTECTED]>...
>>> "Rich" <[EMAIL PROTECTED]> wrote in message
>>> news:[EMAIL PROTECTED]
>>> >
>>>  [...]
>>> > Unlike the word 'jack', malice has only one meaning. I don't see any
>>> > confusion or misunderstanding with the word.
>>> 
>>> Curious. My OED lists five definitions. But anyway...
>>
>>Can you summarize the definition which is materially different
>>from 
>>
>>  mal&#65533;ice    
>>  n. 
>>
>>  1.A desire to harm others or to see others suffer; extreme 
>>    ill will or spite. 
>>  2.Law. The intent, without just cause or reason, to commit a 
>>    wrongful act that will result in harm to another. 
>>
>>Baba has used the word "culpable", is there a meaning like that?
>>The problem with Baba's word is that it totally misses the point.
>>What is culpable and what is not? Generally t.r. regulars ( a
>>group of which I am apparently not a member ) claim that for
>>a FRA, culpability requires proven malice (with some fringing
>>around the edges). The general tone is that mistaken identity,
>>which is asserted as the prevalant cause, destroys all culpability
>>and all traces of responsibility for the damages caused to an
>>innocent man.
>>
>>And of course many here post that if the woman recants, she
>>should not be punished, everything is fixed. Does a recantation
>>destroy culpability? Does it erase a lie? You tell me.
>>
>>As for mens rea, I'll get to that in another post. But it clearly
>>is not a requirement for a rape conviction in the US. The new
>>british rape laws disallow this as a defense as well, belief that
>>consent was granted is no longer a defense.
>
>You've said this before and been shown that you are wrong and you just
>keep repeating it.  The new British law clearly talks of A not
>believing that B consents.  See below:

I think you need to go back and re-check your sources, the document
has not been static. You may notice (2) below, which discusses
*whether* belief in consent is permissible. BTW, the HTML link
is broken, you'll have to view the pdf.

Enjoy.

Rich

>1     Rape
http://www.publications.parliament.uk/pa/cm200203/cmbills/164/2003164.htm


 Rape 
 
 (1) A person (A) commits an offence if  

    (a) he intentionally penetrates the vagina, anus or mouth of 
    another person (B) with his penis, 

    (b) B does not consent to the penetration, and 

    (c) A does not reasonably believe that B consents. 
 
 (2) Whether a belief is reasonable is to be determined having 
     regard to all the circumstances, including any steps A has 
     taken to ascertain whether B consents. 
     
 (3) Sections 75 and 76 apply to an offence under this section. 
 
 (4) A person guilty of an offence under this section is liable, 
     on conviction on indictment, to imprisonment for life. 
     
 
[ parts 75 and 76 ]

75 Evidential presumptions about consent 

 (1) If in proceedings for an offence to which this section 
     applies it is proved  
     
     (a) that the defendant did the relevant act, 
     
     (b) that any of the circumstances specified in subsection 
         (2) existed, and 
     (c) that the defendant knew that those circumstances existed, 
   
   the complainant is to be taken not to have consented to the
   relevant act unless sufficient evidence is adduced to raise 
   an issue as to whether he consented, and the defendant is to 
   be taken not to have reasonably believed that the complainant 
   consented unless sufficient evidence is adduced to raise an 
   issue as to whether he reasonably believed it. 
 
 (2) The circumstances are that  
 
    (a) any person was, at the time of the relevant act or 
        immediately before it began, using violence against 
        the complainant or causing the complainant to fear 
        that immediate violence would be used against him; 

    (b) any person was, at the time of the relevant act or 
        immediately before it began, causing the complainant 
        to fear that violence was being used, or that 
        immediate violence would be used, against another person; 

    (c) the complainant was, and the defendant was not, 
        unlawfully detained at the time of the relevant act; 
        
    (d) the complainant was asleep or otherwise unconscious 
        at the time of the relevant act; 
    
    (e) because of the complainant s physical disability, 
        the complainant would not have been able at the time
        of the relevant act to communicate to the defendant 
        whether the complainant consented; 
    (f) any person had administered to or caused to be taken 
        by the complainant, without the complainant's consent, 
        a substance which, having regard to when it was 
        administered or taken, was capable of causing or 
        enabling the complainant to be stupefied or overpowered 
        at the time of the relevant act. 
        
 (3) In subsection (2)(a) and (b), the reference to the time 
     immediately before the relevant act began is, in the case of
     an act which is one of a continuous series of sexual
     activities, a reference to the time immediately before 
     the first sexual activity began. 
     
     
76 Conclusive presumptions about consent 

 (1) If in proceedings for an offence to which this section applies
     it is proved that the defendant did the relevant act and that 
     any of the circumstances specified in subsection (2) existed, 
     it is to be conclusively presumed  
     
     (a) that the complainant did not consent to the relevant 
         act, and 
     
     (b) that the defendant did not believe that the complainant
         consented to the relevant act. 
         
 (2) The circumstances are that  
 
     (a) the defendant intentionally deceived the complainant as 
         to the nature or purpose of the relevant act; 

     (b) the defendant intentionally induced the complainant to 
         consent to the relevant act by impersonating a person 
         known personally to the complainant. 
>  
>     (1)    A person (A) commits an offence if—
> 
>           (a)           he intentionally penetrates the vagina, anus
>or mouth of another person 
>  
>(B) with his penis,
>  
>           (b)           B does not consent to the penetration, and
>  
>           (c)           subsection (2) or (3) applies.
>  
>     (2)    This subsection applies if A does not believe that B
>consents (whether because he knows that B does not consent, gives no
>thought to whether B consents, or otherwise).
>  
>     (3)    This subsection applies if—
>  
>           (a)           a reasonable person would in all the
>circumstances doubt whether B consents, and
>
>           (b)           A does not act in a way that a reasonable
>person would consider sufficient in all the circumstances to resolve
>such doubt.
>  
>     (4)    Section 78 applies to an offence under this section.
>  
>     (5)    A person guilty of an offence under this section is
>liable, on conviction on indictment, to imprisonment for life.
> 
>
>
>
>
>>Rich  (posting without malice)
>>
>>
>>> "In the best known definitions of malice it is scarcely distinguishable from
>>> intention."
>>>     -    Sir William Markby (19th Century English jurist), Elements of Law,
>>> 1896.
>>> 
>>> [...]
>>> 
>>> John James (JJ)