My proposal is a common-sense proposal that very few people would oppose (you’re an obvious exception), so I would have to say that most legislatures would pass such a law if brought before them.

I assumed you weren’t willing to inherently criminalize a man having voluntary sex with a woman past the age of consent. I guess I was wrong.

Without getting into particulars, let’s just say that the odds of that being done are slim to none, and Slim left town a long time ago.

(Radical feminists actually tried to have this done on college campuses – a woman could chang her mind the day after, and the school would treat the man as though he was guilty of rape. Let’s just say that such BS wasn’t exactly popular with the rest of society.)

You seem to have missed the point. What must be proven is subject to redefinition; the elements of an offense can be changed, or a new offense can be created.

A claim that a woman consented to have sex with eight men is inherently dubious, and it is a good policy to discourage gang rape by instituting a law that eliminates the issue of consent in that context.

Unless the woman wanted money. Or was mad at the guy. Or later decided she regretted it. Or she was cheating on someone with him and wanted to appear innocent. Or…

Men rape women. Women falsely accuse men of rape. This is a problem, but shifting the burden of proof to the accused to defend themselves puts our entire system of justice on its head.

Want to see how a system like that works? Go to Mexico – it’s called “Napoleonic law”, and it SUCKS. It’s far more open to abuse than our system (which is frightening to contemplate, I know).

The burden of proof is ALWAYS on the accuser. Prove your case “beyond a reasonable doubt”, and the accused only has to respond once you’ve gotten that far.

The elements of the offense would be (1) sex with a woman, and (2) knowledge that the woman had engaged in sex with another man within the past hour. Consent would be a defense, though as a practical matter where the woman consented there would most likely be no complaint and thus no charges.

Another problem is that some defendents simply can’t afford the costs associated with the strong defense needed to get the exoneration. Pay $1000 (or maybe even nothing or very little with a public defendent) and take the plea bargain, with the deferred adjudication (as Mike explained above), or pay $50,000 and go for your 95% chance at being cleared, but also with a 10% chance at being found guilty (in spite of the reality). Use that public defendent and your chance at being cleared drop from 95% to 75% or maybe even less. Doesn’t sound like a very good bet to me.

It’s not that simple. With weak cases like the Duke players faced, prosecutors usually offer deals that are too good to refuse – probation and the opportunity to have the conviction expunged from one’s record after some short period of time. (This is the same type deal Rush Limbaugh took; it’s usually called deferred adjudication.)

So if you are an innocent defendant facing a rape case, you can either a) take a deal that guarantees you will eventually be able to move on with your life or; b) roll the dice at trial – where a conviction would mean prison time and lifetime registration as a sex offender. More than likely, the same folks who voted for Mike Nifong would have been the jurors in a Duke rape trial.

Can you see why innocent people plead guilty to crimes they did not commit?

It seems to me that the De Anza case point to has little to do with Duke and more to do with the current state of the law in CA.

I’m no lawyer and I find the events as described reprehensible. I will leave it to others to debate how we word a law to punish a deliberate rape and protect against alcohol induced consent and its revocation.

As far as the Duke effect goes, I would consider it malpractice if an attorney failed to invoke it in the zealous representation of a client.