A very good article that touches on a broader subject; the reversal of the onus of proof.

The onus of proof should always rest with the claimant, yet in many of our civil regulatory regimes a claim is taken as being sufficient and in some cases this is detrimental to the principles of tort. For example, I am currently involved in a dispute with Suncorp insurance over a minor traffic accident in which the other party was insured by Suncorp.

I have invited Suncorp to prove their claim that I am responsible through the courts, to be told "we believe you are responsible and we're going to collect. We are not going to court for such a small amount." Needless to say, they are NOT going to collect unless they do go to court, but nonetheless I have been harassed by their agent, Collection House over the phone and in other ways, including some quite unconscionable behaviour over the Christmas period and while I haven't checked, I suspect that my credit reference file will have a default registered.

All of that for a dispute over a sum which Suncorp is not prepared to argue for in court and which has changed during the dispute process, for reasons which have not been explained. I have no way of knowing what the basis for the claim is because Suncorp refused to provide me with the details of the damage or the relevant evidence of their cost claim. This, of course, is standard practise for the less reputable operators in that business.

While this is obviously not as serious as a rape allegation, it seems to me to reflect the same type of degradation of the legal system, in that it is assumed that certain classes of party may be deemed reasonably able to arrogate to themselves rights and assumptions of authority that are not universal.

Given it remains impossible to give informed consent while drunk or drugged; and given some of those drugs can be administered without the knowledge or consent of the victim, informed consent can only be given while sober and drug free!

Besides, what sort of an animal takes advantage of someone he allegedly cares about, when she is completely vulnerable/out cold.

A real man would protect her and from himself on such occasions.

If you just want to have sex with a piece of meat, go buy a thick rump steak!

Nor should she be violated and shamed yet again, by having her attacker attack her and her credibility; and or her reputation, in an open courtroom!

We have space age lie detection that's almost impossible to beat, even by polygraph beating psychopaths!

And while it is still not used or mandatory; simply beggars belief! (Non invasive thermal imaging that sees what you can't hide however clever; and computer assisted facial recognition, that detects those tiny telltale facial movements, to quick for the average eye to discern)

And able to be applied completely covertly, so you unable to prepare yourself with drugs like mood altering cocaine, sometimes used by the wary, to beat the polygraph; which therefore is essentially,unreliable?

At the end of the day, truth must and should prevail, rather than too clever by half lawyers/tricksters/liars/cheats and frauds!

And if you don't want to be judged by the truth and the actual facts?

Then just keep your pecker in your pants, and or if unable, try lady Palmer and her five daughters!

Grow up and act like a real man, if you would be judged as one! Own your own behavior!

A drunk or drugged lady cannot give informed consent, end of story!

Let the truth prevail; given, the truly innocent will never ever be harmed by it!
Rhrosty.

Rhrosty, sometimes real men and real women get drunk and sometimes when they do they have sex.

A large part of the world's population is the result.

True enough Craig, and sometimes real R souls take an unfair advantage of a lady's diminished responsibly!

And often after they have been plied with strong drinks,; and or, rohipnol or both, in order to produce that very condition!

As I said, let the actual facts speak for themselves. The innocent have nothing to fear from the truth!

As yes, and to be fair, there are also predatory females, who have ulterior motives? Let the exposed truth speak for itself!
Rhrosty.

There is no real controversy about situations where a largely sober man takes advantage of a woman, who is "blotto" from drink or drugs. He deserves punishment.

The grey area in moral terms is where a person has consumed these substances but is still capable of making decisions. What do you do about situations, where both are equally badly intoxicated/stoned? Charge both with rape? If a sober wife initiates sex with her intoxicated husband, is she raping him? The law in NSW , for example, says he is incapable of consent, if he is "substantially intoxicated".

If every technical breach of our rape/sexual assault laws was prosecuted in court, the legal system would become a laughing stock.

Yes Bren and right on the money, that's why we need to deal the courts out of this during the initial investigation stage, and for the first time in our legal history, focus on arriving at the actual truth, warts and all!

And thanks to space age lie detection innovation, we actually can do that; and with a 99.99% success rate.

Compulsive or clever lairs have no chance, but particularly if the technology is applied covertly, and the results allowed in evidence.

For the first time we should let the actual truth speak out for the victims, whoever they are.

And simply dismiss alleged rape if actual consent was first given, then say retracted seconds before the vinegar stroke, because he wasn't using a condom; and almost an impossible ask.

When the accuser is confronted with the facts that destroy or confirm the case; and he or she confronts the very real possibility of going to jail for the crime of perjury; which must include supplying false evidence!

We will have gotten things around this very grey and murky; he said she said area, into real and enduring balance.

We just need to eliminate the human error factor, and allow the actual truth to prevail, and because we finally can!

Sorry if that deals out too clever by half, highly rewarded Silks, and or the tactic of further traumatizing and shaming already harmed victims! But I think its high time we reinvented the ideal of a genuine fair go; and because we can! And that is how you get the balance right!

Let the revealed truth speck for itself and the victims. And sure the recidivist offenders are going to scream blue murder and obfuscate every which way!

And should they prevail, we all of us lose!

Sure, let's tender justice with mercy, just not throw it into the too hard basket!
Rhrosty.

"Given it remains impossible to give informed consent while drunk or drugged; and given some of those drugs can be administered without the knowledge or consent of the victim, informed consent can only be given while sober and drug free!"

I do wonder about that. I have some sympathy for the position but also some concerns that it appears to be at variance from other parts of the law. It's possible to commit a crime while intoxicated and be held responsible for doing so. I've wondered about liability in other areas of the law, making an online purchase while intoxicated and other places people can make choices which they might not otherwise make.

I also get the impression that in cases where both parties are intoxicated the male is assumed to be more responsible or is it really the one who does not or is slowest to regret the decision who is held responsible?

I get the impression that a significant percentage of women who choose to get intoxicated do so to reduce their own inhibitions.

I would like to see the best of tools available to determine truth used provided safeguards in in place to prevent operator bias from interfering with the outcomes.

Both sides of this debate have merits, our legal system can be very tough on victims but we also need to be careful not to allow "special case" pleading to undermine the safeguards we have in our legal system to minimise the conviction of innocents. Added to that is the push to have post sentence provisions in place such as sexual offender registration, maps etc. Moves I generally support as long as we are very careful that only genuine offenders end up on those lists.

I was also intrigued by the deception over facts part and the possible consequences of such a clause. Wander what the statute of limitations on that would be.

R0bert

R0bert; operator bias is possible with polygraphs, but not with covert thermal imaging, and or computer assisted facial recognition, both of which help to identify formerly undetectable pork pies.

Even in polygraph beating psychopaths, certain parts of the brain always light up when we tell porkies; and certain expressions flit across the face, and too quick for the human eye!

Not so computer assisted facial recognition, which sees and recognized every expression, and what ones are associated with telling pork pies; and contempt!

So we can even use two distinctly separate systems to confirm the facts/the truth or the lack thereof.

And clever questioning can even identify any crime and when and where it was committed, and just by utilizing the sum of the negative responsive!

And there are other tell tales signs that ordinary folk can't hide anyway, that include rapid blinking, pupil dilation and sweat on the upper lip, or even the whole face!

Let the truth, the whole truth and nothing but the truth hold sway and prevail, and indeed, restore balance.

Moreover, a video record can be made and officially validated as an accurate record of interview, and by an over-viewing authority; in order to rule out any chance of any sort of operator bias.

With that in place, we really can rule out operator bias, and rule in, the inescapable truth.

Which is all we really ever needed, to decide guilt or innocence/get the balance right.

Given perjured evidence, can create a miscarriage of justice, I think the should be no statute of limitations on perjury; or mandatory compensation for the offended party!

In any event, exposing the truth warts and all, by employing the latest and best noninvasive technology, we can not only get at the literal truth but keep exposed economic migrants from obtaining entry, by successfully posing as asylum seekers.
Rhrosty.

Brendan,

I thought it was a well balanced article in all but the first line. Why would you start with the 'under-reported' rape myth?

I can't for the life of me understand why this myth is never challenged. In 1950s and 60s when rape still had some stigma involved, I can understand why feminists might claim rape was under-reported. When women were raped it was seen as their fault for putting themselves in a position where they could be raped. Women were treated as adults then, with independent agency, who were responsible for their actions. But in this day and age, where no matter what a woman does she can never bear any responsibility for her actions, and it is considered oh so schick to be a victim (especially of a sex crime), then why oh why would a woman not report a rape?

I'm really so over feminists and their obsession with sex.

Rhostry,

Love your comments about 'real men'. Would love to hear your thoughts on what constitutes a 'real women'. Or do only men have responsibilities?

Would it not be in the best interest of truth and justice to apply the "lie detector" to both the alleged victim and alleged perpetrator?

Dane, It's almost impossible for a woman to rape a man!

And in the sexual context, women are invariably the real prey and men the real hunters!

Pray tell what responsibility does a deer (the prey) have when the hunters bullet rips into her heart!?

That she was there and available?

In the case of sexual conquest, the power almost always remains with the man, and the only one capable of ending coitus, once it has begun!

Women who make a mistake and with their informed consent, still retain the option of the morning after pill and minimizing any possible adverse consequences, as should the rape or incest victim!

Albeit, in the case of incest, that option can be withheld by a controlling parent and perpetrator!

I witnessed a rape where the lady bent over to kiss the boyfriend goodnight only to have the widow wound up on her neck and then taken doggy style!

All while she pleaded no, sweetheart no!

He however claimed it was the expected consequence of a costly night out!

Eventually she simply moaned, just get it over R soul.
When I, just a troubled 15 year old boy taking a stroll on a beach, understood that the lady was being violated; popped up and said, I saw it all and would report to the police!

The woman's demeanor quickly changed and said, nothing not wanted had happened and invited the boyfriend upstairs for a "nightcap"?

On later adult reflection, I think she was part of the two thirds of unreported date rape and for myriad reasons; personal shame, or keeping a cuckolded hubby out of the loop, etc!

This tells me, all we really need is a way to ensure the truth prevails when reported!

After all, we cannot force reporting, given the public exposure.

However, if it could be satisfactorily concluded by exposing the truth in a private setting, this could change, and not before time.

Let the truth prevail!

That is the only way to restore balance!
Rhrosty.

Gawd a'mighty...

Please treat women as adults. If she was pissed, she as an adult decided to. To demand that women need protecting from themselves is disgusting and demeaning, that rubbish went out with bloomers. And with the passing of bloomers has been the passing of social stigma of rape for the overwhelming majority of females.

If they are not adult as implied by a need to protect them, what's the next step, take the vote off them?

I think the answer to this issue, is to do away with the idea of guilt or innocence and trials and just convict the accused on the say so of the accuser.

Parts of this debate point back to a fundamental flaw in our legal system. All to often getting at the truth does not seem to be high on the priority list. As an outsider to the system who's only direct exposure has been through the family law system and one stint on a jury many years ago I may be misunderstanding how it works but I think the impression that truth is not a big priority in our courts is a common perception.

As Rhosty points out there are technologies that could add significantly to the tools available to get at the truth that just don't seem to be used.

There does not appear to be a visible review processes or a revisit of decisions to see what can be learned from them. None of that is about just rape cases but perceived fundamental weaknesses in our legal system.

R0bert

Rhostry,

'And in the sexual context, women are invariably the real prey and men the real hunters!'

Either you've been happily married for many years or you need to get out more.

Has it never crossed your mind that women sometimes use their sexuality to their advantage?

It was great that the article mentioned the number of women who have been charged with false reporting of rape to 'get even'. It would have been even better if the article talked about how the false accusations would have resulted in many years jail and the life long stigma of being a sex offender for the man. In short, false accusations ruin the lives of men. Just like they used to for female rape victims in the past.

It's amazing how much society has changed. In the past the responsibility was on the woman not to put herself in a position where she could be raped. Remember this was in a time when there was no sex before marriage, where people married for life and abortion was illegal. If a woman fell pregnant during a rape she would disappear to the country and return after the baby had been given up for adoption. No longer a virgin, and being a 'fallen' woman she would find it hard to find a husband and of course as women didn't work she could not really hope for a career for herself. The stigma of rape was there because by being raped she had her life ruined. That is hardly the case today.

With the winding back of legal protections against rape accusations we risk the reverse happening. If hundreds of women have been caught making false accusations, I wonder how many haven't? How many innocent men have had their lives ruined and will suffer the life long stigma of being a a convicted sex offender? So now the stigma of sex offenses has shifted to men.

Of course, for the radical feminists who agitated for these law, and for whom all men are rapists anyway, there can be no such thing as an innocent man. But let's leave that to the side for now.

I know some women in the UK have been jailed (usually only after serial false accusations) but I haven't heard of this ever happening in Australia. I guess women only lie in the UK.

The difference is that men who raped women have always been seen as outcasts while of course women who are caught making false claims almost always get a slap on the wrist. It's almost as if it's acceptable for man to serve years in prison for a woman's hurt feelings during a break up.

So I ask again, how could female rapes possibly be under reported? Where is the evidence? Why is this simply accepted?

Dane : "So I ask again, how could female rapes possibly be under reported? Where is the evidence? Why is this simply accepted?"

I have personally known six women over the past few years who were raped, but never reported the crime because they didn't think they would be believed, and they didn't want to go through a trial.

I can only surmise that other people know other women with this same scenario.
Can you prove we are all lying Dane?

No matter how much you carry on about these enlightened days of so-called equality for women, rape trials haven't really changed much at all.
Rapists are still getting away with it, and women are still judged as sluts for 'asking for it'.

We still have men like Dane who believe all women are liars, and they are all out to punish all men.

Nothing much has changed at all....

Suze,

I don't believe a word you say. There are extensive protections in place for rape victims in court, a woman's word is always taken at face value and men must prove themselves innocent. There is no stigma involved for women, there may well be financial rewards and there are no sanctions against proven malicious claims.

So if your 'friends' were really raped why would they have any compunction about going a through a trial?

You feminists are so obsessed with rape and sex. It would be nice if you could get your minds above your thighs every now and again.

'Can you prove we are all lying Dane?'
I see you have taken the new legal paradigm to heart. You make an outrageous claim and expect other people to disprove it. A bit like your friends who claim they were raped. Apparently it's my job to disprove they were raped even though they never reported it. How about, if a woman is raped she report it to the proper authorities, or otherwise just sit down quietly and drink a nice cup of shut the fcuk up?

I also personally know women, who were definitely raped but did not report it.

Years ago the main reason was undeserved shame and fear that friends and family would find out.

Even today there persists a continuing fear among victims of going to Court and enduring a cross-examination, as well as an impression that charges would not stick in many cases through lack of witnesses.

Part of the problem, perhaps, is that rape is actually very poorly defined. Successful victim-centric advocacy has seen the definitions broadened almost to the point of meaninglessness, so that anything a victim might choose to define as rape post-facto is ipso facto rape!

As the father of a young woman, I am acutely aware of the perils that she may face, including the possibility that someone might not take "no" for an answer, regardless of how emphatically she tries to express herself. However, as the father of a young man, I'm also acutely aware of the perils that he may face if a young woman spitefully or perhaps even worse, sincerely accuses him of improper sexual conduct when he was sincerely of the view that it was consensual.

Miscommunications are so common they should be taken as the norm. Even in formal negotiations misunderstandings occur, let alone in the emotionally charged situation of a sexual encounter.

Pretending otherwise is simply stupid.

Dane, Craig; everything you've added seems to miss the critical point!

All we need is to expose the truth!

And it's not just female victims that were routinely ignored but young boys, harmed by pedophiles!

And if you did report it, what's the odds you would be punished for saying such terrible things about an above reproach priest or a brother!

Even if everything you say about scheming evil females are true, and there are some, just being able to expose the truth and the liars whoever they be, is all we need; and we can do that in spades.

What's your real problem with that? Some nasty skeletons in the closet perhaps?

One can expect a certain amount of resistance from the political class/legal fraternity, given, if the idea caught on and reporters armed with thermal cameras started interviewing pollies, and exposed them routinely for being both extremely disingenuous and routinely mendacious; they'd surely lose their jobs to those who didn't fail the "accuracy" test.

I mean, I was gobbed smacked when the responsible minister decided to exclude thermal imaging from our airports! Too many airport interviews perhaps?

And for the legal fraternity, the idea seems to be just winning or losing, and let justice go take a running jump; money is all that seems to matter for some!?

Albeit, I've known some who's integrity, would not allow them to defend the guilty, just help them plead for the mercy of the court!

To reiterate, why are you guys so hostile at the idea of exposing the horrible truth and then just letting the chips fall where they may!?
Rhrosty.

Dane I am telling the truth, but you aren't.
When was the last rape trial you were at? I was at one just 6 months ago, and it was truly awful for the woman involved....a 76 year old lady.

One doesn't need to be a feminist to agree with anything the rest of us are saying.
You can't lump all women in the one basket, just as you can't with men.

Rhosty, it is very difficult to get to the 'truth' in these sorts of trials when there is only the two witnesses.
The prosecution has to prove it was rape, and the defense uses 'she obviously asked for it' or 'she really enjoyed it' .
I would suggest the defense wins most of the time in these trials...

Ah but you are wrong Suse!

When any witness is interviewed with the assistance of a covertly positioned thermal imaging camera and C.A.F.R. It's impossible for the disingenuous/compulsive liars (however clever) to hide the truth!

And if it can be done in relative privacy, and not in the presence of the badgering barrister and the perp. The victim need not be traumatized more than necessary, just to expose the irrefutable truth!

After all, justice is supposed to be blind and just interested in the critical facts.

What really amazes me, is that we remain stuck somewhere in the fourteenth century and adversarial questioning/hostile inquisition, as being able to actually decide actual true justice; as opposed to badgering/embarrassing it out of existence!

And if exposing the actual truth also prevents false accusations from prevailing, then we are finally able to get the balance right, and just by relying exclusively on the mighty irrefutable truth; rather than "suppositories" of all wisdom.

Yes there are some accomplished liars out there and getting away with their incorrigible recidivist mischief; and harm for decades!

Time for all that evil to end, and indeed, "justice" reserved just for the privileged few that can afford a good $600.00 a day/an hour silk!

We have extremely reliable means in our hands to fully verify the facts; time to use it, and just so justice can finally prevail/genuine victims can have their accusations incontrovertibly validated!

And if that then poses a problem for forked tongue pollies in the public spotlight, so be it!

I mean, it can only be a question of time, before media outlets equip their reporters with said thermal imaging cameras and C.A F.R. And the pollies none the wiser, until the evening news!

And after that?

Placing them in parliament to ensure parliament cannot be successfully misled, but particularly when questions can be taken on notice?

And then we wonder why some eternally obfuscating obdurate pollies seem to resist the implementation of this particular technology?
Rhrosty.

Rhosty, if what you say is true, and this infallible machine can tell us for sure when someone is lying, why isn't it positioned in every court room and police station in the nation then?

Surely such a machine would be worth it's weight in gold?
We wouldn't even need lawyers really would we?
Just a judge to give the sentence....

Craig,

I agree. The way that rape has been re-defined to mean anything from a brutal home invasion and rape of an elderly woman to a woman who maybe had one or two too many to drink and simple regrets her actions has undermined perceptions of rape.

There are so many protections in place for rape victims that if a woman doesn't report 'rape' there must have been enough doubt to suggest it wasn't rape at all. Taking responsibility for your actions is not 'unreported rape'.

Rhosty do you have links to evidence of the claims about thermal imaging for lie/truth detection?

The stuff I've seen looks interesting but no where near conclusive yet.

http://www.ncbi.nlm.nih.gov/pubmed/21061052
http://adsabs.harvard.edu/abs/2004SPIE.5405..270P
http://edition.cnn.com/2011/TECH/innovation/09/13/lie.detector.thermal.imaging/
http://ieeexplore.ieee.org/stamp/stamp.jsp?arnumber=6797879

R0bert