Prosecuting Violence against Women: Toward A 'Merits-Based' Approach to Evidential Sufficiency
14 Revista Jurídica de la Universidad de Palermo (University of Palermo Law Review, Buenos Aires, Argentina) (2015)
19 Pages Posted: 25 Oct 2016
Date Written: November 1, 2015
This article, published in Spanish in the flagship law review of the University of Palermo, Argentina, argues that criminal prosecutors should rethink what counts as a “win” in rape cases. They should not be reluctant to take such cases to trial simply because a jury is unlikely to convict. Moreover, if they fail to charge, or later dismiss, a case, they should not explain their reasoning in terms of a jury’s likely unwillingness to convict. Instead, prosecutors should take responsibility for exercising their discretion in judging evidential sufficiency, and base their decisions upon whether a jury should convict, given the evidence and the legal definition of the offense. That is, criminal prosecutors should adopt a “merits-based” approach to evaluating evidential sufficiency in such cases. By so doing, prosecutors can realize conviction-independent values that are particularly salient in the context of rape cases: expressive values realized through the denunciation of particular/concrete rapes, as well as consequential values realized through kicking off a moral dialogue regarding the “sticky norms” of rape.
Keywords: Criminal Prosecution, Evidential Sufficiency, Denunciation, Sticky Norms, Violence against Women, Rape, Merits-Based Approach, Expressive Value
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