Ya know, Cheetah, as much as I like debating with smart people it can be a real pain in the ass and a huge investment of time. My suggestion is before you read the rest of what I wrote, you crush up a Verced or two and down it with a beer. Then you'll be all: "Ah, shit Q-Man, you're right, you're right, you're...ehhhh...*snore*, *snore*"
That's the easy part. You've given the prosecution the easy part, with concrete forensic evidence which is either there or not there, and given the defense a nebulous concept like "informed consent."
True, but that's a better defense than they would have otherwise if the prosecution could prove they had sex with someone just under the age.
The uncorroborated word of a child cannot be accepted as evidence in court. If you're striking down that principle you are likely to convict more innocent people, because if no one can refute her when she says she consented, no one can refute her if she says she didn't. Her word is either evidence both ways, or it can't be evidence at all.
First off, if the experts say s/he was capable of informed consent, and the prosecution cannot bring forth witnesses or evidence to suggest that s/he is lying or has reason to lie, then there is no good reason to believe s/he's not telling the truth. After all, if we are to believe this individual's cognitive abilities and level of maturity are enough to actually give informed consent to sex, then why wouldn't we also find them to be a credible witness?
Second, if the alleged victim says they do not consent then there is at least one person who could potentially challenge and refute their testimony-- the defendant him/herself.
What if the prosecution has a pet psychiatrist that says she is, and the defense has one that says she isn't?
Even if a court psychiatrist says she is, the burden of proof is on the defense, which means one expert witness who dissents could be enough to convict him of rape.
This actually raises a broader jurisprudential issue that concerns me regarding the use of expert psychiatric witnesses in the common law system. I'd favor changing the rules when it comes to psychological/psychiatric evaluations at trial. I'd make it more like a pre-trial hearing, where the judge calls the witness and questions them, except I'd also permit juries to ask questions and I'd have more protections in the selection of a third-party expert witness to ensure neutrality. Although I generally favor the common law to the civil law, it's not without its flaws, and I would favor adding some civil law elements (such as judge as inquistor in certain scenarios, like above) as well as entirely new ones to reform the current system, which has some flaws that I find seriously disconcerting and frequently harmful to the idea of justice.
I don't follow your logic here - how would statutory rape even be a crime if your reform was put in place?
I don't know how to explain it any better than I already have. Under my proposal, you still have one kind of rape/sexual assault charge that involves sex without informed consent because the victim is cognitively incapable of giving it due to age or mental defect (I'm using stat rape as shorthand but you can use whatever term you like), then you have one kind of rape which is not consensual because the victim actively objected to it. The only difference is that age, while weighing very heavily in determining whether or not someone had the cognitive ability to give consent, under my proposal is not the be-all and end-all of making the determination like it is now.
Exactly my point above. Statutory rape would no longer be a crime if that was the order of the day, so every case of under age sex would have to be tried as the more serious crime of rape. Justice should demand that if you increase the seriousness of the charge a man is faced with, the burden of proof on which he can be convicted should also be increased or at least left the same. Your idea would lower the burden of proof for the prosecution, while making the consequences of conviction far more serious.
I think I addressed this above.
Better to just leave it as it is and let judges handle consensual sex between adults and adolescents with community service, fines, suspended sentences and the like. In reality, that's what happens anyway, so if it ain't broken don't try and fix it.
That's fine if you live in a country with a reasonable criminal justice system, but in my country we throw people in the can quite frequently and for long periods. We have the highest incarceration rate in the world, both in terms of total inmate population and per-capita, so you'll have to forgive me if I don't trust the sentencing judges to behave in a reasonable and humane manner. I'm in favor of any reform to our current system that reduces the number of people in prison for consensual and non-violent activity-- there are way too many already on drug charges alone. Well, maybe not ANY reform, but chances are, if that's the result of the reform I'm more likely than not to look favorably upon it.
Topic: Difference between pedophile & hebephile