ISSUE OF BURDEN OF PROOF IN A RAPE CASE

What is Rape?

The crime of rape generally refers to non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress. A lack of consent can include the victim's inability to say "no" to intercourse, due to the effects of drugs or alcohol or threat. Rape can occur when the offender and victim have a pre-existing relationship or even when the offender is the victim's spouse.

Rape is said to occur when a man has sexual intercourse with a woman

1)      Against her will.

2)      Without her consent even if the consent is granted under duress.

A man is also said to commit rape if he has sexual Intercourse with a woman with her consent if he knows he is no her husband and consent is given because she believes he is the man to whom she is legally married to.

A man is said to commit rape with or without her consent if the woman is under 14 years or of unsound mind.

The criminal code provides the following terms as offence of rape.

“Any person who has unlawful carnal knowledge of a woman or man without his/her consent, if the consent is obtained by means of force, threat, intimidation, or by fear of harm, by means of false and fraudulent representation as to the nature of the act as in the case of a married woman by impersonating her husband is guilty of the offence called rape.”

Having defined rape and established that it is a criminal offence punishable under the law, what then is the burden of proof for a rape case?

Burden of proof

The burden of proof is the obligation to shift the accepted conclusion away from an oppositional opinion to one's own position. It is the obligation of a party on one side of a dispute or issue to provide sufficient evidence in support of their position.

The burden of proof may only be fulfilled by legal evidence.

The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges." This is a statement of a version of the presumption of innocence that underpins the assessment of evidence in some legal systems, and is not a general statement of when one takes on the burden of proof.

 The burden of proof tends to lie with anyone who is arguing against received wisdom, but does not always, as sometimes the consequences of accepting a statement or the ease of gathering evidence in its defense might alter the burden of proof its proponents shoulder. The burden may also be assigned institutionally.

He who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to support his claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party.

The burden of proof is an especially important issue in rape case.

The burden of proof is the duty of one party in a legal case to convince the decision-maker (judge and/or jury) that their version of the facts is true.  The burden of proof is carried by the plaintiff in civil trials and the prosecution in criminal trials.  The burden of proof is much greater in criminal trials than it is in civil trials, largely because there is much more at stake- like the defendant’s liberties- in a criminal trial. 

Non-criminal in nature, civil cases involve conflicts between parties over property rights, personal injury, breech of contract, and the like.  In these cases, the plaintiff carries the burden of proof and must demonstrate their version of the facts to be true by a preponderance of evidence. 

 In layman’s terms, this burden of proof requires that the defendant prove that their argument is more likely to be true than false.  This is also called the balance of probabilities.  When a plaintiff wins a civil case, the courts will typically order the defendant to compensate the plaintiff for their damages.
 
The burden of proof in rape cases is much different for several reasons.  A defendant in a rape case often faces incarceration and the loss of many other civil liberties.  A criminal defendant is presumed innocent of the charges against them until they are proven guilty. 

Thus, the burden of proof is very high in rape cases.  Prosecutors must be able to prove their version of the facts beyond a reasonable doubt that the offender actually committed offence. 

In Rape cases, this burden of proof requires that the prosecution demonstrate the defendant’s guilt for each element of the crime beyond a reasonable doubt.  Beyond a reasonable doubt is considered synonymous to “a moral certainty.”  Through fair and thorough consideration of the admissible facts in a case, the judge or jury must be convinced beyond a reasonable doubt that the defendant is guilty of each element of the crime in order to convict the defendant. 

There are two general elements of a rape case that the prosecution must prove.  The first is that the defendant committed the criminal act(s) in question.  In Latin, this is called actus reus.  The burden of proof also requires that for each of these acts, the prosecution prove the defendant possessed a “criminal intention” called mens rea in Latin. 

Because the burden of proof rests on the prosecution, the defendant is not required to prove their innocence.  All the defendant has to do is argue that the prosecution has failed to prove their case.  Even when the prosecution has successfully argued their case, some criminal defenses may still be employed help a defendant avoid or mitigate punishment for their crimes. 

The burden of proof in criminal cases is high and provides some favor to the defendant in a case. Therefore burden of proof is upon the prosecution; that is, it is for the prosecution to establish the defendant's guilt. Therefore the prosecution must adduce evidence upon which, if it is accepted, a reasonable jury may convict.

The victim may be suffering from rape trauma syndrome and the broader clinical diagnosis of post traumatic stress disorder, which may render some victims emotionally incapable of providing a written statement shortly after an attack, or even for days or weeks.

In the  cases usually place the burden of proof on the prosecutor (expressed in the Latin brocard ei incumbit probatio qui dicit, non que negat, "the burden of proof rests on who asserts, not on who denies"). This principle is known as the presumption of innocence, and is summed up with "innocent until proven guilty," but is not upheld in all legal systems or jurisdictions. Where it is upheld, the accused will be found not guilty if this burden of proof is not sufficiently shown by the prosecution.
The presumption of innocence means three things:

1. With respect to the critical facts of a case the defendant has no burden of proof.
2. The state must prove the critical facts of the case to the appropriate level of certainty.
3. The jury is not to draw any inferences adverse to the defendant from the fact that he has been charged with a crime and is present in court represented by counsel to face the charges against him.

The presumption of innocence does not mean that the jury or anyone else must pretend or assume that the defendant is in fact innocent of the charges. Nothing the jury does can alter the fact that the defendant did or did not commit the offense.