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David Duff

Sundry points arising from your post:

1: You seem to be suggesting that one legal case should be influenced by information concerning another *potentially* criminal act that has never been tested before judge and jury. I'm no lawyer but surely the judge in the AWOL case would have to rule out unsubstantiated 'evidence'.

2: Anyway, in the giving of such evidence, presumably, a man or men will have to be named and, again presumably, they will have to face charges for rape. The fact that a judge has already accepted their guilt in the AWOL case would surely be prejudicial to them.

3: Wouldn't the sensible way out be to try the rape case first and the AWOL case last.

I suspect that if you don't, some of your commenters will, claim that such a rape charge will stand little chance of success in an army court. They may well be right but that is a different problem from the one of dealing with Spc. Swift properly.

I should add, lest you suspect me of being mischievous (again!) that I'm much more interested in the legalities than the sexual politics of this case. Sorry, but I'm an absolute sucker for those great American legal blockbuster books that pose wonderfully tricky legal arguments.

The Happy Feminist

Actually your comment is surprisingly sober and unmischievous. Here's my take (and I don't know a damn thing about a military law, but I do know about U.S. criminal law generally.)

1) Her testimony, by itself, may be enough to establish that the rapes and the harassment occurred. Her testimony is in fact "evidence" that may be sufficient by themselves to prove her claims. That is not to say that her testimony should be accepted uncritically. I have written here about how to assess witness testimony: http://happyfeminist.typepad.com/happyfeminist/2005/11/crying_rape_doe.html

2) Trying the alleged rapists first may be more efficient if they are found guilty beyond a reasonable doubt. However, if they are NOT found guilty, the judge or jury should still consider Swift's claims in assessing whether she is entitled to a finding of mitigating circumstances. I don't know what the standard is for establishing mitigation when you are a defendant in a military tribunal, but I bet it's less than "beyond a reasonable doubt." Therefore, she should have an opportunity to meet that lesser standard.

Richard

Swift supporters have a website here ---> http://suzanneswift.org/index.html which accepts as fact that the harrassment and rape occurred. Looks as if a lot of left leaning political groups want a piece of her now, too. Just what she needs.

These things usually follow patterns. No other women in her unit complaining of anything similar? Investigators have had the case since June, and still nothing.

The Happy Feminist

The Washington Post in the article linked above has a source:

Another woman who was in Swift's unit, who did not want to be identified for fear of retribution, said that the same sergeant also propositioned her during her tour in Iraq. She said she had no doubt it had happened to Swift.

I don't find it particularly disturbing that Swift's friends and family accept her account. I think that's appropriate. Also, don't forget that SHE is presumed innocent as well.


David Duff

I'm not being a barrack-room lawyer here but:

"Her testimony, by itself, may be enough to establish that the rapes and the harassment occurred. Her testimony is in fact "evidence" that may be sufficient by themselves to prove her claims."

Perhaps you wrote that in haste and it came out wrong because you surely cannot be suggesting that her testimony alone ("by itself") is sufficient to a) establish that a crime occurred and b) is also sufficient to convict?

Also, I cannot follow the logic in defendant 'A' pleading mitigation in one court on the grounds of 'x', when 'x' was disbelieved in another, previous, court.

You will note that I am trying hard to keep the sexual politics out of this.

The Happy Feminist

Yes. Under American law, the testimony of an eyewitness is sufficient (if it is credible beyond a reasonable doubt) to establish that someone committed a crime, assuming that the eyewitness witnessed all of the elements of the crime. The victim of the crime qualifies as an eyewitness. This is true whether we are talking about a robbery, a punch in the nose, or a rape.

Also, I cannot follow the logic in defendant 'A' pleading mitigation in one court on the grounds of 'x', when 'x' was disbelieved in another, previous, court.

If the alleged rapists are acquitted of rape, that does not mean that a judge or jury disbelieved that they were guilty. An acquittal only means that the judge or jury had a "reasonable doubt" as to whether the alleged rapist was guilty. Many juries acquit even when they believe a defendant is "probably" guilty because "probably guilty" isn't good enough.

When it comes to establishing mitigation of Swift's offense, she probably doesn't need to establish that the rapes happened "beyond a reasonable doubt." Depending she may only need to establish that the rapes happened "more probably than not." She should have a chance to do that, even if the prosecution couldn't meet the heavier standard of "beyond a reasonable doubt."

Another point, she is not represented in a charge of rape agains the alleged rapists. That charge is not brought by the victim but by the government. She should have a chance to in her own defense to convince the court that facts in mitigation of her her offense really do exist.


The Happy Feminist

I should note that these aren't special rules for female victims of sex offenses. The law I describe is the same regardless of whether it involves a sex offense. It would be the same if we were talking about a male soldier who went AWOL because his commanding officer had been roughing him up.

Sorry for the typos above. I'm in a rush!

David Duff

I am totally gob-smacked (Brit argot meaning 'amazed'!)

If person 'A' accuses 'B' of an offence and 'B' pleads 'not guilty' and either denies it or stands on his/her right of silence, then he/she can be convicted on *one* witness's testimony with no other evidence at all?

And surely "not guilty" means just that. It's not up to third parties in a later court action to finesse a court's findings and to suppose that they can say, with any degree of certainty, "Ah, yes, but really 'B' was guilty, it's just that the Crown couldn't quite prove it". That would be outrageous!

Don't get me wrong, I'm not arguing with you because I just don't have the expertise but I am truly surprised at what you write.

http://www.jesus-is-savior.com/False%20Religions/Illuminati/illuminati_exposed.htm


apparently now the Jews are out to get Patriarch...

Lynn Gazis-Sax

If person 'A' accuses 'B' of an offence and 'B' pleads 'not guilty' and either denies it or stands on his/her right of silence, then he/she can be convicted on *one* witness's testimony with no other evidence at all?

That's *one* witness as opposed to requiring more than one witness to the actual act, right HF? Presumably the defense and prosecution would also be presenting additional evidence to either corroborate or challenge the plausibility of the one witness's story.

And surely "not guilty" means just that.

But David Duff, we don't have a "not proven" verdict in the US. "Not guilty" includes both the case where the jury considers the defendant not to be guilty and the case where the jury considers the case not to be proven.

O.J. Simpson was "not guilty" in a criminal trial, but Nicole Brown Simpson's family still managed to collect damages from him in a civil case. And failed to get custody of his kids away from him in another court case (evidently whoever was deciding the custody of the children was less convinced of the evidence of his guilt than whoever was awarding damages). Only the criminal trial required proof "beyond a reasonable doubt."

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