Comment by afarrell | Hacker News Reader

Comment by afarrell | Hacker News Reader

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Rape is a crime defined by its elements, not by whether or not the victim feels they were wronged. With all crimes, if a person commits a certain act with a certain intent/state of mind, they've committed a crime and the victim's feelings on the matter are irrelevant. Now, in a rape case, without the cooperation and testimony of the victim it is very hard to present enough evidence to convict a jury that the government has proved beyond a reasonable doubt that the crime's elements were all present.

If rape was defined just be whether or not the victim felt it was rape, the victim could change their mind after-the-fact and Assange would go from not-rapist to rapist (and possibly to not-rapist again) based on not on their own actions by based on someone's feelings of guilt, anger, intimidation, or forgiveness a month from the act. This only makes any sense if you view crimes as being individual injuries to one person. But that isn't how criminal law works. If I walk up to you in the middle of a hackathon and stab you in the forearm, I have indeed harmed you and you can sue me for damages in civil court. However, I have also harmed society, specifically that part of society where people assume they can go to hackathon a without being stabbed.

A great source to learn about the fundamentals of criminal law and criminal procedure is this page maintained by a former prosecutor who now works as s defense attorney in NYC. http://lawcomic.net/guide/?page_id=5

All of this should also apply on a smaller scale to communities with Codes of Conduct: http://thebias.com/2015/08/12/take-responsibility-for-handli...

EDIT: I am not a lawyer and comments from a random person on the Internet do not establish an a attourney-client relationship. For actual advice about criminal or international law, please contact Nathan Burney, an actual lawyer who also happens to maintain the illustrated educational resource that I've linked to and I think is fantastic.

So, you are saying that while watering my lawn if I feel deep in my heart I'm committing a crime then I am, in fact, committing a crime?

Plus your stabbing example doesn't explain anything since you would have indeed physically harmed someone which is against the law in most jurisdictions. Considering your rape/not-rape example, a better example is that you would be arrested for thinking about stabbing someone in the arm as you are placing your hand on that arm.

If I were on the jury for either of these examples, supposed victim says no crime committed and the only evidence is the accusation from the state? There's no way you could convince me to vote to convict.

No, you need two things: the intent* and the act. If the act of watering your lawn isn't an element of any crime, then you're fine.

If the victim says that the accused did X, Y, and then Z, that is a statement of fact about what happened. If the victim then says that he doesn't think that X, Y, and Z constitute a crime, that is a statement about the law..which might just be incorrect.

* except for strict liability crimes like speeding

The thing about rape is that the intent and the act are very much intertwined with the victim's feelings of it. If the victim does not appreciate whatever is going on, the onus is on the perpetrator to realize that and stop. Failure to do so is "the act" and the intent is.. well, the state of mind where you do not choose to find out/acquiesce to the other person's desires.

However, if the "victim" says there was no rape, and has never said so, then the whole premise, including both the intent and the act, is unseated.

Disclaimer: I am no lawyer, and do not know much about this specific case. These are just my intuitions about rape laws. I also believe that if the laws, in fact, are much different from these ideas in spirit, they are SORELY off-base.

In this case, the alleged victim when interviewed described events that could certainly constitute rape - for example waking up and finding Assange having unprotected sex with her.

I understand what you are saying.

I am simply saying that in a criminal case if the only evidence presented is the accusation of the prosecution, especially if the supposed victim proclaims they are not a victim of the alleged crime, then I will find it hard to convict if I'm on that jury. Regardless of what the law says or the alleged intent of the accused.

In cases that any law can provide a conviction with no evidence other than an accusation from the state then that's an extremely bad law and should be stricken.

So you're saying that if I take something that belongs to another person, but I believe that I should have it, no crime has been committed?

That sounds like an interesting theory on Crime and Punishment.

Edit: If you feel I've misunderstood the parent comment, please provide a better explanation.

If you take something that belongs to another person, but you believe you do own it, no crime has been committed. For example, if walk out of a store thinking you paid for a bag of groceries when in fact the card reader had errored and you need to swipe again. That isn't shoplifting, that is a mistake of fact.

This concept is called "mens rea" or "guilty mind". A statute for each crime should define what type of mens rea it requires. As an example, generally murder requires an intent to kill or seriously injure someone. Manslaughter only requires a reckless disregard for whether or not you've harmed someone. However, some crimes do not have a mens rea requirement. They are usually minor, like speeding.

For a better explanation of mens rea, see this part of the linked site: http://lawcomic.net/guide/?p=173

EDIT: For an interesting example of when the mens rea requirements for a crime are unclear, see Elonis v. US: a free speech case involving intimidating speech posted to Facebook. http://www.scotusblog.com/case-files/cases/elonis-v-united-s...

Actually that is not quite right. Some crimes require both "mens rea" (intent) and "actus rea" (action) but some require just "actus rea".

For instance, murder requires both intent and action but manslaughter only requires action. Which leads to the canonical law school example of a hit man who shoots his victim with the intent to kill him but the victim does not die. Mistakenly thinking the victim is dead, the hitman leaves the body in a deserted spot in the woods whereupon the victim finally dies of exposure. The hitman technically did not commit murder because when he shot the victim, he intended to kill him but did not actually succeed. However, when he did finally kill the victim (by leaving him out to die of exposure), he had no intention of killing the victim (because the hitman thought the victim was already dead).

Of course, this is all theoretical and if you did try to pull off a crime by manipulating mens and actus rea, you would find prosecutors very creative in finding ways to throw the book at you.

You should read through the linked section, as it specifically discusses an example mens rea requirement for manslaughter.

But in a case of property dispute, this contradicts what you said about the mind of the victim not mattering. If I am in your house and believe that the playstation is mine and walk out with it. Weather or not it is a crime is entirely dependent on what you believe about ownership of the playstation. Entirely on "whether or not the victim feels they were wronged".

No, the mind of the perpetrator is relevant, not the victim. And it isn't just "he said, she said", but the court tries to actually understand what was going on in the perpetrator's mind. For example, you can't shove merchandise down your pants at Walmart, sneak out the front door and claim "I thought it was mine".

It's unfortunate that you're absolutely correct. Mens rea is one of the worst concepts to ever enter the legal system.

It's a vital protection. Look at how messed up anti-money laundering enforcement became in the USA after the PATRIOT Act removed the mens rea requirement.

When I first learned of it I thought it made a lot of sense, so I would genuinely be really very interested to read you expand on its harms.

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