Coyne wrote:The only crime in existence that I'm aware of, where a person's consent is questioned with a presumption that it was given. If the owner didn't tell me I could take the car, then there's no doubt consent did not exist. The very fact that I didn't say, "Yes," means that it was a crime. In the case of rape, the presumption is that she consented if she didn't say, "No," and fight for her life, and even if she did, "Did she really mean it?"
And, yes, I know about the "she's lying" argument as well. But I can do the same with the car: Tell you to, "Go ahead and take it," and then turn you in, denying I gave consent. Put you in prison by that trick. But when was the last time you ever heard a thief taking the position that, "He's lying", and having that work as a successful defense? Again, we see a complete difference in the way the crimes are evaluated: Without evidence to prove that the victim is lying, the thief is sunk. But when the woman is accused of lying, there are knowing head nods and the rapist walks. There is a much lower standard of evidence to prove an accusation of lying on a woman rape victim's part.
In short: If the thief says the owner consents, all the owner has to do is say, "No, I did not." If the rapist says the woman consented, then she must prove that she did not consent; an entirely different standard. Her word is not enough.
The two crimes are treated entirely differently for no valid reason
That's not true, btw, the same standards of proof are applied in both situations, broadly speaking:
(1) People don't normally drive each other's cars because (a) insurance doesn't always/often cover doing that and (b) people are usually very protective of their cars even when covered. I'd guess the average person has sex hundreds of times more often than they lend their car.
(2) There'd need to be some evidence the car was even driven: A police ticket, a speed camera sighting or whatever. If someone takes some keys, drives the car, then returns the keys, with no physical damage done, the courts will not
simply take the owner's word on it. They need to offer some proof the act of driving even occurred.
(3) If there's any doubt - for example if the owner had given permission for the other person to drive the car on previous occasions, and the driver has proof of that fact - I strongly disagree the courts would simply take the owner's word for it that there was no permission on this occasion. The owner would need to provide concrete evidence permission was denied - for example an eye witness. There are obvious parallels here with the difficulty courts have in establishing an act of rape within an existing relationship - especially if there's no physical injuries.
(4) There are strong social reasons why people occasionally lie about having given consent to sex that simply don't exist when it comes to driving cars. The police and the courts need to be slightly more cautious therefore and need to establish that it's not simply a lie told to a parent/partner that spiraled out of control.
(5) It's much easier to establish whether consent has been granted when it comes to driving a car vs having sex: If the driver had access to the keys. I disagree completely that even if someone leaves the keys in a car all the owner has to do is say 'I didn't given them permission to drive it' and it's a slam-dunk conviction: Assuming we're talking about a friend or family member driving the car, if that person says 'no, they did give me verbal permission - else why on earth would they have left the keys in the car?' and it's just one person's word against another, that ought to be a not-guilty verdict.
(Obviously if a stranger drives off a car because the keys were left inside that's a slam-dunk conviction because noone would grant a stranger permission to drive their car unless we're talking about a valet situation. Typically the person taking it won't return it, also, thereby demonstrating beyond reasonable doubt that they didn't have permission to do so. It's actually ironic that people not infrequently lend their bodies to a complete stranger under circumstances they'd never lend a car - eg. only having known the person a few hours. This is one of the many reasons rape is harder to establish than car theft :/ )
Consent to sex is a purely verbal or non-verbal affair almost exclusively granted in private. When the system is and has to be people are judged innocent of crimes unless and until proven guilty, people cannot
be granted the power to jail others simply on their word. People can't jail car thieves simply on their word, there needs to be, at the very least, circumstantial witness or physical evidence corroborating it - eg. a break-in. As horrific as rape is, we can't simply throw out the window this principle of innocence until proved guilty, it's too fundamental.