LGBT movements

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https://en.wikipedia.org/wiki/LGBT_movements 

 

The Stonewall Inn in the gay village of Greenwich Village, Manhattan, site of the June 1969 Stonewall riots, a landmark event in the struggle for LGBT rights in the United States.

 

Lesbian, gay, bisexual, and transgender (LGBT) movements are social movements that advocate for LGBT people in society. Although there is not a primary or an overarching central organization that represents all LGBT people and their interests, numerous LGBT rights organizations are active worldwide. The first organization to promote LGBT rights was the Scientific-Humanitarian Committee, founded in 1897 in Berlin.

A commonly stated goal among these movements is equal rights for LGBT people, often focusing on specific goals such as ending the criminalization of homosexuality or enacting same-sex marriage. Others have focused on building LGBT communities or worked towards liberation for the broader society from biphobia, homophobia, and transphobia. LGBT movements organized today are made up of a wide range of political activism and cultural activity, including lobbying, street marches, social groups, media, art, and research.

Overview

An LGBT protest at the Idaho statehouse in 2014

Sociologist Mary Bernstein writes: "For the lesbian and gay movement, then, cultural goals include (but are not limited to) challenging dominant constructions of masculinity and femininity, homophobia, and the primacy of the gendered heterosexual nuclear family (heteronormativity). Political goals include changing laws and policies to gain new rights, benefits, and protections from harm." Bernstein emphasizes that activists seek both types of goals in both the civil and political spheres.

As with other social movements, there is also conflict within and between LGBT movements, especially about strategies for change and debates over exactly who represents the constituency of these movements, and this also applies to changing education. There is debate over what extent lesbians, gays, bisexuals, transgender people, intersex people, and others share common interests and a need to work together. Leaders of the lesbian and gay movement of the 1970s, 80s and 90s often attempted to hide masculine lesbians, feminine gay men, transgender people, and bisexuals from the public eye, creating internal divisions within LGBT communities. Roffee and Waling (2016) documented that LGBT people experience microaggressions, bullying and anti-social behaviors from other people within the LGBT community. This is due to misconceptions and conflicting views as to what entails "LGBT". For example, transgender people found that other members of the community were not understanding to their own, individual, specific needs and would instead make ignorant assumptions, and this can cause health risks. Additionally, bisexual people found that lesbian or gay people were not understanding or appreciative of the bisexual sexuality. Evidently, even though most of these people would say that they stand for the same values as the majority of the community, there are still remaining inconsistencies even within the LGBT community.

LGBT movements have often adopted a kind of identity politics that sees gay, bisexual, and transgender people as a fixed class of people; a minority group or groups, and this is very common among LGBT communities. Those using this approach aspire to liberal political goals of freedom and equal opportunity, and aim to join the political mainstream on the same level as other groups in society. In arguing that sexual orientation and gender identity are innate and cannot be consciously changed, attempts to change gay, lesbian, and bisexual people into heterosexuals ("conversion therapy") are generally opposed by the LGBT community. Such attempts are often based in religious beliefs that perceive gay, lesbian, and bisexual activity as immoral.

However, others within LGBT movements have criticized identity politics as limited and flawed, elements of the queer movement have argued that the categories of gay and lesbian are restrictive, and attempted to deconstruct those categories, which are seen to "reinforce rather than challenge a cultural system that will always mark the non heterosexual as inferior."

After the French Revolution the anticlerical feeling in Catholic countries coupled with the liberalizing effect of the Napoleonic Code made it possible to sweep away sodomy laws. However, in Protestant countries, where the church was less severe, there was no general reaction against statutes that were religious in origin. As a result, many of those countries retained their statutes on sodomy until late in the 20th century. However, some countries have still retained their statutes on sodomy. For example, in 2008 a case in India's High Court was judged using a 150-year-old reading that was punishing sodomy.

History

See also: Timeline of LGBT history

Enlightenment era

In eighteenth- and nineteenth-century Europe, same-sex sexual behavior and cross-dressing were widely considered to be socially unacceptable, and were serious crimes under sodomy and sumptuary laws. There were, however, some exceptions. For example, in the 17th-century cross-dressing was common in plays, as evident in the content of many of William Shakespeare's plays and by the actors in actual performance (since female roles in Elizabethan theater were always performed by males, usually prepubescent boys).

Thomas Cannon wrote what may be the earliest published defense of homosexuality in English, Ancient and Modern Pederasty Investigated and Exemplify'd (1749). Although only fragments of his work have survived, it was a humorous anthology of homosexual advocacy, written with an obvious enthusiasm for its subject. It contains the argument: "Unnatural Desire is a Contradiction in Terms; downright Nonsense. Desire is an amatory Impulse of the inmost human Parts: Are not they, however, constructed, and consequently impelling Nature?"

Jeremy Bentham, an early advocate for the decriminalization of homosexuality

Social reformer Jeremy Bentham wrote the first known argument for homosexual law reform in England around 1785, at a time when the legal penalty for buggery was death by hanging. His advocacy stemmed from his utilitarian philosophy, in which the morality of an action is determined by the net consequence of that action on human well-being. He argued that homosexuality was a victimless crime, and therefore not deserving of social approbation or criminal charges. He regarded popular negative attitudes against homosexuality as an irrational prejudice, fanned and perpetuated by religious teachings. However, he did not publicize his views as he feared reprisal; his powerful essay was not published until 1978.

The emerging currents of secular humanist thought that had inspired Bentham also informed the French Revolution, and when the newly formed National Constituent Assembly began drafting the policies and laws of the new republic in 1792, groups of militant "sodomite-citizens" in Paris petitioned the Assemblée nationale, the governing body of the French Revolution, for freedom and recognition. In 1791, France became the first nation to decriminalize homosexuality, probably thanks in part to Jean Jacques Régis de Cambacérès, who was one of the authors of the Napoleonic Code. With the introduction of the Napoleonic Code in 1808, the Duchy of Warsaw also decriminalized homosexuality.

In 1830, the new Penal Code of the Brazilian Empire did not repeat the title XIII of the fifth book of the "Ordenações Philipinas", which made sodomy a crime. In 1833, an anonymous English-language writer wrote a poetic defense of Captain Nicholas Nicholls, who had been sentenced to death in London for sodomy:

Whence spring these inclinations, rank and strong?
And harming no one, wherefore call them wrong?

Three years later in Switzerland, Heinrich Hoessli published the first volume of Eros: Die Männerliebe der Griechen (English: "Eros: The Male Love of the Greeks"), another defense of same-sex love.

Emergence of LGBT movement

Main article: First homosexual movement

 

Karl Heinrich Ulrichs, German gay rights activist of the 1860s

In many ways, social attitudes to homosexuality became more hostile during the late Victorian era. In 1885, the Labouchere Amendment was included in the Criminal Law Amendment Act, which criminalized 'any act of gross indecency with another male person'; a charge that was successfully invoked to convict playwright Oscar Wilde in 1895 with the most severe sentence possible under the Act.

The first person known to describe himself as a drag queen was William Dorsey Swann, born enslaved in Hancock, Maryland. Swann was the first American on record who pursued legal and political action to defend the LGBTQ community's right to assemble. During the 1880s and 1890s, Swann organized a series of drag balls in Washington, D.C. Swann was arrested in police raids numerous times, including in the first documented case of arrests for female impersonation in the United States, on April 12, 1888.

From the 1870s, social reformers began to defend homosexuality, but due to the controversial nature of their advocacy, kept their identities secret. The Uranian poets and prose writers, who sought to rehabilitate the love between men and boys and in doing so often appealed to Ancient Greece, formed a rather cohesive group with a well-expressed philosophy. A secret British society called the Order of Chaeronea campaigned for the legalization of homosexuality. The society was founded in 1897 by George Cecil Ives, one of the earliest gay rights campaigners, who had been working for the end of oppression of homosexuals, what he called the "Cause". Members included Oscar Wilde, Charles Kains Jackson, Samuel Elsworth Cottam, Montague Summers, and John Gambril Nicholson. Ives met Wilde at the Authors' Club in London in 1892. Wilde was taken by his boyish looks and persuaded him to shave off his mustache, and once kissed him passionately in the Travellers' Club. In 1893, Lord Alfred Douglas, with whom he had a brief affair, introduced Ives to several Oxford poets whom Ives also tried to recruit.

John Addington Symonds was a poet and an early advocate of male love. In 1873, he wrote A Problem in Greek Ethics, a work of what would later be called "gay history." Although the Oxford English Dictionary credits the medical writer C.G. Chaddock for introducing "homosexual" into the English language in 1892, Symonds had already used the word in A Problem in Greek Ethics.

Symonds also translated classical poetry on homoerotic themes, and wrote poems drawing on ancient Greek imagery and language such as Eudiades, which has been called "the most famous of his homoerotic poems". While the taboos of Victorian England prevented Symonds from speaking openly about homosexuality, his works published for a general audience contained strong implications and some of the first direct references to male-male sexual love in English literature. By the end of his life, Symonds' homosexuality had become an open secret in Victorian literary and cultural circles. In particular, Symonds' memoirs, written over a four-year period, from 1889 to 1893, form one of the earliest known works of self-conscious homosexual autobiography in English. The recently decoded autobiographies of Anne Lister are an earlier example in English.

Another friend of Ives was the English socialist poet Edward Carpenter. Carpenter thought that homosexuality was an innate and natural human characteristic and that it should not be regarded as a sin or a criminal offense. In the 1890s, Carpenter began a concerted effort to campaign against discrimination on the grounds of sexual orientation, possibly in response to the recent death of Symonds, whom he viewed as his campaigning inspiration. His 1908 book on the subject, The Intermediate Sex, would become a foundational text of the LGBT movements of the 20th century. Scottish anarchist John Henry Mackay also wrote in defense of same-sex love and androgyny.

English sexologist Havelock Ellis wrote the first objective scientific study of homosexuality in 1897, in which he treated it as a neutral sexual condition. Called Sexual Inversion it was first printed in German and then translated into English a year later. In the book, Ellis argued that same-sex relationships could not be characterized as a pathology or a crime and that its importance rose above the arbitrary restrictions imposed by society. He also studied what he called 'inter-generational relationships' and that these also broke societal taboos on age difference in sexual relationships. The book was so controversial at the time that one bookseller was charged in court for holding copies of the work. It is claimed that Ellis coined the term 'homosexual', but in fact he disliked the word due to its conflation of Greek and Latin.

These early proponents of LGBT rights, such as Carpenter, were often aligned with a broader socio-political movement known as 'free love'; a critique of Victorian sexual morality and the traditional institutions of family and marriage that were seen to enslave women. Some advocates of free love in the early 20th century, including Russian anarchist and feminist Emma Goldman, also spoke in defense of same-sex love and challenged repressive legislation.

An early LGBT movement also began in Germany at the turn of the 20th century, centering on the doctor and writer Magnus Hirschfeld. In 1897 he formed the Scientific-Humanitarian Committee campaign publicly against the notorious law "Paragraph 175", which made sex between men illegal. Adolf Brand later broke away from the group, disagreeing with Hirschfeld's medical view of the "intermediate sex", seeing male-male sex as merely an aspect of manly virility and male social bonding. Brand was the first to use "outing" as a political strategy, claiming that German Chancellor Bernhard von Bülow engaged in homosexual activity.

May 14, 1928, issue of German lesbian periodical Die Freundin (The Girlfriend)

The 1901 book Sind es Frauen? Roman über das Dritte Geschlecht (English: Are These Women? Novel about the Third Sex) by Aimée Duc was as much a political treatise as a novel, criticizing pathological theories of homosexuality and gender inversion in women. Anna Rüling, delivering a public speech in 1904 at the request of Hirschfeld, became the first female Uranian activist. Rüling, who also saw "men, women, and homosexuals" as three distinct genders, called for an alliance between the women's and sexual reform movements, but this speech is her only known contribution to the cause. Women only began to join the previously male-dominated sexual reform movement around 1910 when the German government tried to expand Paragraph 175 to outlaw sex between women. Heterosexual feminist leader Helene Stöcker became a prominent figure in the movement. Friedrich Radszuweit published LGBT literature and magazines in Berlin (e.g., Die Freundin).

Hirschfeld, whose life was dedicated to social progress for people who were transsexual, transvestite and homosexual, formed the Institut für Sexualwissenschaft (Institute for Sexology) in 1919. The institute conducted an enormous amount of research, saw thousands of transgender and homosexual clients at consultations, and championed a broad range of sexual reforms including sex education, contraception and women's rights. However, the gains made in Germany would soon be drastically reversed with the rise of Nazism, and the institute and its library were destroyed in 1933. The Swiss journal Der Kreis was the only part of the movement to continue through the Nazi era.

USSR's Criminal Code of 1922 decriminalized homosexuality. This was a remarkable step in the USSR at the time – which was very backward economically and socially, and where many conservative attitudes towards sexuality prevailed. This step was part of a larger project of freeing sexual relationships and expanding women's rights – including legalizing abortion, granting divorce on demand, equal rights for women, and attempts to socialize housework. During Stalin's era, however, USSR reverted all these progressive measures – re-criminalizing homosexuality and imprisoning gay men and banning abortion.

In 1928, English writer Radclyffe Hall published a novel titled The Well of Loneliness. Its plot centers on Stephen Gordon, a woman who identifies herself as an invert after reading Krafft-Ebing's Psychopathia Sexualis, and lives within the homosexual subculture of Paris. The novel included a foreword by Havelock Ellis and was intended to be a call for tolerance for inverts by publicizing their disadvantages and accidents of being born inverted. Hall subscribed to Ellis and Krafft-Ebing's theories and rejected (conservatively understood version of) Freud's theory that same-sex attraction was caused by childhood trauma and was curable.

In the United States, several secret or semi-secret groups were formed explicitly to advance the rights of homosexuals as early as the turn of the 20th century, but little is known about them. A better documented group is Henry Gerber's Society for Human Rights formed in Chicago in 1924, which was quickly suppressed.

Homophile movement (1945–1969)

Main article: Homophile movement

 

Cover of U.S. lesbian publication The Ladder from October 1957. The motif of masks and unmasking was prevalent in the homophile era, prefiguring the political strategy of coming out and giving the Mattachine Society its name.

Immediately following World War II, a number of homosexual rights groups came into being or were revived across the Western world, in Britain, France, Germany, the Netherlands, the Scandinavian countries and the United States. These groups usually preferred the term homophile to homosexual, emphasizing love over sex. The homophile movement began in the late 1940s with groups in the Netherlands and Denmark, and continued throughout the 1950s and 1960s with groups in Sweden, Norway, the United States, France, Britain and elsewhere. ONE, Inc., the first public homosexual organization in the U.S, was bankrolled by the wealthy transsexual man Reed Erickson. A U.S. transgender rights journal, Transvestia: The Journal of the American Society for Equality in Dress, also published two issues in 1952.

The homophile movement lobbied to establish a prominent influence in political systems of social acceptability. Radicals of the 1970s would later disparage the homophile groups for being assimilationist. Any demonstrations were orderly and polite. By 1969, there were dozens of homophile organizations and publications in the U.S, and a national organization had been formed, but they were largely ignored by the media. A 1965 gay march held in front of Independence Hall in Philadelphia, according to some historians, marked the beginning of the modern gay rights movement. Meanwhile, in San Francisco, the LGBT youth organization Vanguard was formed by Adrian Ravarour to demonstrate for equality, and Vanguard members protested for equal rights during the months of April–July 1966, followed by the August 1966 Compton's riot, where transgender street prostitutes in the poor neighborhood of Tenderloin rioted against police harassment at a popular all-night restaurant, Gene Compton's Cafeteria.

The Wolfenden Report was published in Britain on September 4, 1957, after publicized convictions for homosexuality of well-known men, including Edward Douglas-Scott-Montagu, 3rd Baron Montagu of Beaulieu. Disregarding the conventional ideas of the day, the committee recommended that "homosexual behaviour between consenting adults in private should no longer be a criminal offence". All but James Adair were in favor of this and, contrary to some medical and psychiatric witnesses' evidence at that time, found that "homosexuality cannot legitimately be regarded as a disease, because in many cases it is the only symptom and is compatible with full mental health in other respects." The report added, "The law's function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others … It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behavior."

The report eventually led to the introduction of the Sexual Offences Bill 1967 supported by Labour MP Roy Jenkins, then the Labour Home Secretary. When passed, the Sexual Offenses Act decriminalized homosexual acts between two men over 21 years of age in private in England and Wales. The seemingly innocuous phrase 'in private' led to the prosecution of participants in sex acts involving three or more men, e.g. the Bolton 7 who were so convicted as recently as 1998.

Bisexual activism became more visible toward the end of the 1960s in the United States. In 1966 bisexual activist Robert A. Martin (a.k.a. Donny the Punk) founded the Student Homophile League at Columbia University and New York University. In 1967 Columbia University officially recognized this group, thus making them the first college in the United States to officially recognize a gay student group. Activism on behalf of bisexuals in particular also began to grow, especially in San Francisco. One of the earliest organizations for bisexuals, the Sexual Freedom League in San Francisco, was facilitated by Margo Rila and Frank Esposito beginning in 1967. Two years later, during a staff meeting at a San Francisco mental health facility serving LGBT people, nurse Maggi Rubenstein came out as bisexual. Due to this, bisexuals began to be included in the facility's programs for the first time.

Gay Liberation movement (1969–1974)

Main article: Gay Liberation

See also: 1970s in LGBT rights

 

Gay liberation demonstration in Washington, DC, in the early 1970s

The new social movements of the sixties, such as the Black Power and anti-Vietnam war movements in the US, the May 1968 insurrection in France, and Women's Liberation throughout the Western world, inspired many LGBT activists to become more radical, and the Gay Liberation movement emerged towards the end of the decade. This new radicalism is often attributed to the Stonewall riots of 1969, when a group of gay men, lesbians, drag queens and transgender women at a bar in New York City resisted a police raid.

Immediately after Stonewall, such groups as the Gay Liberation Front (GLF) and the Gay Activists' Alliance (GAA) were formed. Their use of the word gay represented a new unapologetic defiance—as an antonym for straight ("respectable sexual behavior"), it encompassed a range of non-normative sexuality and sought ultimately to free the bisexual potential in everyone, rendering obsolete the categories of homosexual and heterosexual. According to Gay Lib writer Toby Marotta, "their Gay political outlooks were not homophile but liberationist". "Out, loud and proud," they engaged in colorful street theater. The GLF's "A Gay Manifesto" set out the aims for the fledgling gay liberation movement, and influential intellectual Paul Goodman published "The Politics of Being Queer" (1969). Chapters of the GLF were established across the U.S. and in other parts of the Western world. The Front Homosexuel d'Action Révolutionnaire was formed in 1971 by lesbians who split from the Mouvement Homophile de France.

The Gay liberation movement overall, like the gay community generally and historically, has had varying degrees of gender nonconformity and assimilationist platforms among its members. Early marches by the Mattachine society and Daughters of Bilitis stressed looking "respectable" and mainstream, and after the Stonewall Uprising the Mattachine Society posted a sign in the window of the club calling for peace. Gender nonconformity has always been a primary way of signaling homosexuality and bisexuality, and by the late 1960s and mainstream fashion was increasingly incorporating what by the 1970s would be considered "unisex" fashions. In 1970, the drag queen caucus of the GLF, including Marsha P. Johnson and Sylvia Rivera, formed the group Street Transvestite Action Revolutionaries (STAR), which focused on providing support for gay prisoners, housing for homeless gay youth and street people, especially other young "street queens". In 1969, Lee Brewster and Bunny Eisenhower formed the Queens Liberation Front (QLF), partially in protest to the treatment of the drag queens at the first Christopher Street Liberation Day March.

One of the values of the movement was gay pride. Within weeks of the Stonewall Riots, Craig Rodwell, proprietor of the Oscar Wilde Memorial Bookshop in lower Manhattan, persuaded the Eastern Regional Conference of Homophile Organizations (ERCHO) to replace the Fourth of July Annual Reminder at Independence Hall in Philadelphia with a first commemoration of the Stonewall Riots. Liberation groups, including the Gay Liberation Front, Queens, the Gay Activists Alliance, Radicalesbians, and Street Transvestites Action Revolutionaries (STAR) all took part in the first Gay Pride Week. Los Angeles held a big parade on the first Gay Pride Day. Smaller demonstrations were held in San Francisco, Chicago, and Boston.

The 1971 GLF cover version of Ink magazine, printed in London

In the United Kingdom the GLF had its first meeting in the basement of the London School of Economics on October 13, 1970. Bob Mellors and Aubrey Walter had seen the effect of the GLF in the United States and created a parallel movement based on revolutionary politics and alternative lifestyle.

By 1971, the UK GLF was recognized as a political movement in the national press, holding weekly meetings of 200 to 300 people. The GLF Manifesto was published, and a series of high-profile direct actions, were carried out.

The disruption of the opening of the 1971 Festival of Light was the best organized of GLF action. The Festival of Light, whose leading figures included Mary Whitehouse, met at Methodist Central Hall. Groups of GLF members in drag invaded and spontaneously kissed each other; others released mice, sounded horns, and unveiled banners, and a contingent dressed as workmen obtained access to the basement and shut off the lights.

In 1971, the gay liberation movement in Germany and Switzerland started with Rosa von Praunheims movie It Is Not the Homosexual Who Is Perverse, But the Society in Which He Lives.

Easter 1972 saw the Gay Lib annual conference held in the Guild of Undergraduates Union (students union) building at the University of Birmingham.

In May 1974 the American Psychiatric Association, after years of pressure from activists, changed the wording concerning homosexuality in the Sixth printing of the Diagnostic and Statistical Manual of Mental Disorders from a "mental disorder" to that of a "sexual orientation disturbance". While still not a flattering description, it took gay people out of the category of being automatically considered mentally ill simply for their sexual orientation.

By 1974, internal disagreements had led to the movement's splintering. Organizations that spun off from the movement included the London Lesbian and Gay Switchboard, Gay News, and Icebreakers. The GLF Information Service continued for a few further years providing gay related resources. GLF branches had been set up in some provincial British towns (e.g., Bradford, Bristol, Leeds, and Leicester) and some survived for a few years longer. The Leicester group founded by Jeff Martin was noted for its involvement in the setting up of the local "Gayline", which is still active today and has received funding from the National Lottery. They also carried out a high-profile campaign against the local paper, the Leicester Mercury, which refused to advertise Gayline's services at the time.

In 1972, Sweden became the first country in the world to allow people who were transsexual by legislation to surgically change their sex and provide free hormone replacement therapy. Sweden also permitted the age of consent for same-sex partners to be at age 15, making it equal to heterosexual couples.

In Japan, LGBT groups were established in the 1970s. In 1971, Ken Togo ran for the Upper House election.

LGBT rights movement (1972–present)

Legalisation of LGBT sex, civil unions and marriages in Europe from 1900 to 2021

1972–1986

Bisexuals became more visible in the LGBT rights movement in the 1970s. In 1972 a Quaker group, the Committee of Friends on Bisexuality, issued the "Ithaca Statement on Bisexuality" supporting bisexuals.

The Statement, which may have been "the first public declaration of the bisexual movement" and "was certainly the first statement on bisexuality issued by an American religious assembly," appeared in the Quaker Friends Journal and The Advocate in 1972.

In that same year the National Bisexual Liberation Group formed in New York. In 1976 the San Francisco Bisexual Center opened.

From the anarchist Gay Liberation movement of the early 1970s arose a more reformist and single-issue Gay Rights movement, which portrayed gays and lesbians as a minority group and used the language of civil rights—in many respects continuing the work of the homophile period. In Berlin, for example, the radical Homosexual Action West Berlin [de] was eclipsed by the General Homosexual Working Group [de].

Gay and lesbian rights advocates argued that one's sexual orientation does not reflect on one's gender; that is, "you can be a man and desire a man... without any implications for your gender identity as a man," and the same is true if you are a woman. Gays and lesbians were presented as identical to heterosexuals in all ways but private sexual practices, and butch "bar dykes" and flamboyant "street queens" were seen as negative stereotypes of lesbians and gays. Veteran activists such as Sylvia Rivera and Beth Elliot were sidelined or expelled because they were transgender.

In 1974, Maureen Colquhoun came out as the first Lesbian Member of Parliament (MP) for the Labour Party in the UK. When elected she was married in a heterosexual marriage.

In 1975, the groundbreaking film portraying homosexual gay icon Quentin Crisp's life, The Naked Civil Servant, was transmitted by Thames Television for the British Television channel ITV. The British journal Gay Left also began publication. After British Home Stores sacked an openly gay trainee Tony Whitehead, a national campaign subsequently picketed their stores in protest.

In 1977, Harvey Milk was elected to the San Francisco Board of Supervisors becoming the first openly gay man in the State of California to be elected to public office. Milk was assassinated by a former city supervisor Dan White in 1978.

In 1977, a former Miss America contestant and orange juice spokesperson, Anita Bryant, began a campaign "Save Our Children", in Dade County, Florida (greater Miami), which proved to be a major setback in the Gay Liberation movement. Essentially, she established an organization which put forth an amendment to the laws of the county which resulted in the firing of many public school teachers on the suspicion that they were homosexual.

In 1979, a number of people in Sweden called in sick with a case of being homosexual, in protest of homosexuality being classified as an illness. This was followed by an activist occupation of the main office of the National Board of Health and Welfare. Within a few months, Sweden became the first country in the world to remove homosexuality as an illness.

Between 1980 and 1988, the international gay community rallied behind Eliane Morissens, a Belgian lesbian who had been fired from her teaching post for coming out on television and bringing attention to employment discrimination. The case prompted protests, articles, and fundraising events throughout Europe and the Americas. Articles were carried in Toronto's The Body Politic, the Gay Community News of Boston; and the San Francisco Sentinel. The French magazine Gai pied created a support network to organize demonstrations and launched a petition drive for subscribers and members of the International Gay Association (IGA) to call on the Council of Europe to renounce discrimination against homosexuals. The International Lesbian Information Service (ILIS) published information in their newsletter about letter-writing campaigns, and organized fund-raisers and solidarity protests to help pay for Morissens' legal and personal expenses and bring attention to the case. Both ILIS and IGA lobbied European teachers' unions in support of Morissens. Though Morissens appealed the school board decision to the local council; the highest court in Belgium, Council of State; and the European Court of Human Rights, her termination was upheld at every level. The LGBT community was disappointed in the outcome because each court of appeal refused to recognize or examine whether employment discrimination had occurred, accepting the employer's version of events, and narrowly examining freedom of expression.

Lesbian feminism, which was most influential from the mid-1970s to the mid-1980s, encouraged women to direct their energies toward other women rather than men, and advocated lesbianism as the logical result of feminism. As with Gay Liberation, this understanding of the lesbian potential in all women was at odds with the minority-rights framework of the Gay Rights movement. Many women of the Gay Liberation movement felt frustrated at the domination of the movement by men and formed separate organisations; some who felt gender differences between men and women could not be resolved developed "lesbian separatism," influenced by writings such as Jill Johnston's 1973 book Lesbian Nation. Organizers at the time focused on this issue. Diane Felix, also known as DJ Chili D in the Bay Area club scene, is a Latino American lesbian once joined the Latino American queer organization GALA. She was known for creating entertainment spaces specifically for queer women, especially in Latino American community. These places included gay bars in San Francisco such as A Little More and Colors. Disagreements between different political philosophies were, at times, extremely heated, and became known as the lesbian sex wars, clashing in particular over views on sadomasochism, prostitution and transsexuality. The term "gay" came to be more strongly associated with homosexual males.

In Canada, the coming into effect of Section 15 of the Canadian Charter of Rights and Freedoms in 1985 saw a shift in the gay rights movement in Canada, as Canadian gays and lesbians moved from liberation to litigious strategies. Premised on Charter protections and on the notion of the immutability of homosexuality, judicial rulings rapidly advanced rights, including those that compelled the Canadian government to legalize same-sex marriage. It has been argued that while this strategy was extremely effective in advancing the safety, dignity and equality of Canadian homosexuals, its emphasis of sameness came at the expense of difference and may have undermined opportunities for more meaningful change.

Mark Segal, often referred to as the dean of American gay journalism, disrupted the CBS evening news with Walter Cronkite in 1973, an event covered in newspapers across the country and viewed by 60% of American households, many seeing or hearing about homosexuality for the first time.

Another setback in the United States occurred in 1986, when the US Supreme Court upheld a Georgia anti-sodomy law in the case Bowers v. Hardwick. (This ruling would be overturned two decades later in Lawrence v. Texas).

1987–2000

The rainbow flag

AIDS pandemic

Main articles: AIDS pandemic and AIDS activism

Some historians posit that a new era of the gay rights movement began in the 1980s with the emergence of AIDS. As gay men became seriously ill and died in ever-increasing numbers, and many lesbian activists became their caregivers, the leadership of many organizations was decimated. Other organizations shifted their energies to focus their efforts on AIDS. This era saw a resurgence of militancy with direct action groups like AIDS Coalition to Unleash Power (ACT UP), formed in 1987, as well as its offshoots Queer Nation (1990) and the Lesbian Avengers (1992). Some younger activists, seeing gay and lesbian as increasingly normative and politically conservative, began using queer as a defiant statement of all sexual minorities and gender variant people—just as the earlier liberationists had done with gay. Less confrontational terms that attempt to reunite the interests of lesbian, gay, bisexual, and transgender people also became prominent, including various acronyms like LGBT, LGBTQ, and LGBTI, where the Q and I stand for queer or questioning and intersex, respectively.

Warrenton "War Conference"

A "War Conference" of 200 gay leaders was held in Warrenton, Virginia, in 1988. The closing statement of the conference set out a plan for a media campaign:

First, we recommend a nation-wide media campaign to promote a positive image of gays and lesbians. Every —national, state, and local—must accept the responsibility. We must consider the media in every project we undertake. We must, in addition, take every advantage we can to include public service announcements and paid advertisements, and to cultivate reporters and editors of newspapers, radio, and television. To help facilitate this we need national media workshops to train our leaders. And we must encourage our gay and lesbian press to increase coverage of the national process. Our media efforts are fundamental to the full acceptance of us in American life. But they are also a way for us to increase the funding of our movement. A media campaign costs money, but ultimately it may be one of our most successful fund-raising devices.

The statement also called for an annual planning conference "to help set and modify our national agenda." The Human Rights Campaign lists this event as a milestone in gay history and identifies it as where National Coming Out Day originated.

On June 24, 1994, the first Gay Pride march was celebrated in Asia in the Philippines. In the Middle East, LGBT organizations remain illegal, and LGBT rights activists face extreme opposition from the state. The 1990s also saw the emergence of many LGBT youth movements and organizations such as LGBT youth centers, gay–straight alliances in high schools, and youth-specific activism, such as the National Day of Silence. Colleges also became places of LGBT activism and support for activists and LGBT people in general, with many colleges opening LGBT centers.

The 1990s also saw a rapid push of the transgender movement, while at the same time a "sidelining of the identity of those who are transsexual." In the English-speaking world, Leslie Feinberg published Transgender Liberation: A Movement Whose Time Has Come in 1992. Gender-variant peoples across the globe also formed minority rights movements. Hijra activists campaigned for recognition as a third sex in India and Travesti groups began to organize against police brutality across Latin America while activists in the United States formed direct-confrontation groups such as the Transexual Menace.

21st century

Worldwide laws regarding same-sex intercourse, unions and expression

Same-sex intercourse illegal. Penalties:
Death	Prison; death not enforced
Death under militias	Prison, w/ arrests or detention
Prison, not enforced1
Same-sex intercourse legal. Recognition of unions:
Marriage	Extraterritorial marriage2
Civil unions	Limited domestic
Limited foreign	Optional certification
None	Restrictions of expression

Rings indicate local or case-by-case application.
¹No imprisonment in the past three years or moratorium on law.
²Marriage not available locally. Some jurisdictions may perform other types of partnerships.

Laws concerning gender identity-expression by country or territory

  Legal identity change, surgery not required

  Legal identity change, surgery required

  No legal identity change

  Unknown/Ambiguous

Same-sex marriage

As of 2021, same-sex marriages are recognized in the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Mexico, Denmark, Brazil, France, Uruguay, New Zealand, United Kingdom, Luxembourg, Ireland, the United States, Colombia, Finland, Germany, Malta, Australia, Austria, Taiwan, Ecuador, Costa Rica, Switzerland, and Chile.

The Netherlands was the first country to allow same-sex marriage in 2001. Following with Belgium in 2003 and Spain and Canada in 2005. South Africa became the first African nation to legalize same-sex marriage in 2006, and is currently the only African nation where same-sex marriage is legal. Despite this uptick in tolerance of the LGBT community in South Africa, so-called corrective rapes have become prevalent in response, primarily targeting the poorer women who live in townships and those who have no recourse in responding to the crimes because of the notable lack of police presence and prejudice they may face for reporting assaults.

On 22 October 2009, the assembly of the Church of Sweden, voted strongly in favour of giving its blessing to homosexual couples, including the use of the term marriage, ("matrimony").

Iceland became the first country in the world to legalize same-sex marriage through a unanimous vote: 49–0, on 11 June 2010. A month later, Argentina became the first country in Latin America to legalize same-sex marriage.

On 26 June 2015, in Obergefell v. Hodges, the U.S. Supreme Court ruled 5-to-4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live in the United States. With this ruling, the United States became the 17th country to legalize same-sex marriages entirely.

Between 12 September and 7 November 2017, Australia held a national survey on the subject of same sex marriage; 61.6% of respondents supported legally recognizing same-sex marriage nationwide. This cleared the way for a private member's bill to be debated in the federal parliament.

Other rights

In 2003, in the case Lawrence v. Texas, the Supreme Court of the United States struck down sodomy laws in fourteen states, making consensual homosexual sex legal in all 50 states, a significant step forward in LGBT activism and one that had been fought for by activists since the inception of modern LGBT social movements.

From November 6 to 9, 2006, The Yogyakarta Principles on application of international human rights law in relation to sexual orientation and gender identity was adopted by an international meeting of 29 specialists in Yogyakarta, the International Commission of Jurists and the International Service for Human Rights.

During this same period, some municipalities have been enacting laws against homosexuality. For example, Rhea County, Tennessee, unsuccessfully tried to "ban homosexuals" in 2006.

The 1993 "Don't ask, don't tell" law, forbidding homosexual people from serving openly in the United States military, was repealed in 2010. This meant that gays and lesbians could now serve openly in the military without any fear of being discharged because of their sexual orientation. In 2012, the United States Department of Housing and Urban Development's Office of Fair Housing and Equal Opportunity issued a regulation to prohibit discrimination in federally-assisted housing programs. The new regulations ensure that the Department's core housing programs are open to all eligible persons, regardless of sexual orientation or gender identity.

The UN declaration on sexual orientation and gender identity gathered 66 signatures in the United Nations General Assembly on December 13, 2008. In early 2014 a series of protests organized by Add The Words, Idaho and former state senator Nicole LeFavour, some including civil disobedience and concomitant arrests, took place in Boise, Idaho which advocated adding the words "sexual orientation" and "gender identity" to the state's Human Rights act.

On September 6, 2018, consensual gay sex was legalised in India by their Supreme Court.

In June 2020, the United States Supreme Court ruled that the 1964 Civil Rights Act could protect gay and transgender people from workplace discrimination. The Bostock v. Clayton County decision found that protections guaranteed on the basis of sex could extend to sexual orientation and identity in areas like housing and employment. Democrats such as then-presidential candidate Joe Biden praised the decision.

Today, by affirming that sexual orientation and gender identity discrimination are prohibited under Title VII of the Civil Rights Act, the Supreme Court has confirmed the simple but profoundly American idea that every human being should be treated with respect and dignity.

Due to a lack of federal protections, discrimination against LGBT people in public accommodation or the sale of goods and services by private businesses remains legal, leaving vulnerable those in more than half the states in the U.S. 

In October 2020, the Council of Europe's Sexual Orientation and Gender Identity (SOGI) Unit, along with the European Court of Human Rights, held a conference to mark the 70th anniversary of the European Convention on Human Rights on October 8, 2020. The entity announced launching an event called "A 'Living Instrument' for Everyone: The Role of the European Convention on Human Rights in Advancing Equality for LGBTI persons", focused on the progress achieved in equality for LGBTI persons in Europe through the European Convention mechanism.

President Biden signed an executive order barring LGBTQ discrimination on his first day in office. Later the same year, Biden reversed a Trump-era policy of banning transgender people from the military, authorized embassies to fly the pride flag, and officially recognized June as Pride Month.

Public opinion

See also: Societal attitudes toward homosexuality and LGBT rights opposition

 

37th Annual "Straights For Gay Rights" in Berkeley, California in 2013

LGBT movements are opposed by a variety of individuals and organizations. They may have a personal, political or religious prejudice to gay rights, homosexual relations or gay people. Opponents say same-sex relationships are not marriages, that legalization of same-sex marriage will open the door for the legalization of polygamy, that it is unnatural and that it encourages unhealthy behavior. Some social conservatives believe that all sexual relationships with people other than an opposite-sex spouse undermines the traditional family and that children should be reared in homes with both a father and a mother. As society in some countries (mostly in Western Europe, North America, Australia, New Zealand, Japan and Taiwan) has become more accepting of homosexuality, there therefore has also been the emergence of many groups that desire to end homosexuality; during the 1990s, one of the best known groups that was established with this goal is the ex-gay movement.

Anti-gay protestors in San Francisco in 2008

Some people worry that gay rights conflict with individuals' freedom of speech, religious freedoms in the workplace, and the ability to run churches, charitable organizations and other religious organizations that hold opposing social and cultural views to LGBT rights. There is also concern that religious organizations might be forced to accept and perform same-sex marriages or risk losing their tax-exempt status.

Eric Rofes author of the book, A Radical Rethinking of Sexuality and Schooling: Status Quo or Status Queer?, argues that the inclusion of teachings on homosexuality in public schools will play an important role in transforming public ideas about lesbian and gay individuals. As a former teacher in the public school system, Rofes recounts how he was fired from his teaching position after making the decision to come out as gay. As a result of the stigma that he faced as a gay teacher he emphasizes the necessity of the public to take radical approaches to making significant changes in public attitudes about homosexuality. According to Rofes, radical approaches are grounded in the belief that "something fundamental needs to be transformed for authentic and sweeping changes to occur. "The radical approaches proposed by Rofes have been met with strong opposition from anti-gay rights activists such as John Briggs. Former California senator, John Briggs proposed Proposition 6, a ballot initiative that would require that all California state public schools fire any gay or lesbian teachers or counselors, along with any faculty that displayed support for gay rights in an effort to prevent what he believe to be " the corruption of the children's minds". The exclusion of homosexuality from the sexual education curriculum, in addition to the absence of sexual counseling programs in public schools, has resulted in increased feelings of isolation and alienation for gay and lesbian students who desire to have gay counseling programs that will help them come to terms with their sexual orientation. Eric Rofes founder of youth homosexual programs, such as Out There and Committee for Gay Youth, stresses the importance of having support programs that help youth learn to identify with their sexual orientation.

David Campos, author of the book, Sex, Youth, and Sex Education: A Reference Handbook, illuminates the argument proposed by proponents of sexual education programs in public schools. Many gay rights supporters argue that teachings about the diverse sexual orientations that exist outside of heterosexuality are pertinent to creating students that are well informed about the world around them. However, Campos also acknowledges that the sex education curriculum alone cannot teach youth about factors associated with sexual orientation but instead he suggests that schools implement policies that create safe school learning environments and foster support for LGBT youth. It is his belief that schools that provide unbiased, factual information about sexual orientation, along with supportive counseling programs for these homosexual youth will transform the way society treats homosexuality.

Many opponents of LGBT social movements have attributed their indifference toward homosexuality as being a result of the immoral values that it may instill in children who are exposed to homosexual individuals. In opposition to this claim, many proponents of increased education about homosexuality suggest that educators should refrain from teaching about sexuality in schools entirely. In her book entitled "Gay and Lesbian Movement," Margaret Cruickshank provides statistical data from the Harris and Yankelovich polls which confirmed that over 80% of American adults believe that students should be educated about sexuality within their public school. In addition, the poll also found that 75% of parents believe that homosexuality and abortion should be included in the curriculum as well. An assessment conducted on California public school systems discovered that only 2% of all parents actually disapproved of their child being taught about sexuality in school.

Anti-gay demonstrators in Poland in 2006

It had been suggested that education has a positive impact on support for same sex marriage. African Americans statistically have lower rates of educational achievement; however, the education level of African Americans does not have as much significance on their attitude towards same-sex marriage as it does on white attitudes. Educational attainment among whites has a significant positive effect on support for same-sex marriage, whereas the direct effect of education among African Americans is less significant. The income levels of whites have a direct and positive correlation with support for same-sex marriage, but African American income level is not significantly associated with attitudes toward same-sex marriage.

Parada Równości 2018, Warsaw, Poland

Location also affects ideas towards same-sex marriage; residents of rural and southern areas are significantly more opposed to same-sex marriage in comparison to residents elsewhere. Gays and lesbians that live in rural areas face many challenges, including: sparse populations and the traditional culture held closely by the small population of most rural areas, generally hostile social climates towards gays relative to urban areas, and less social and institution support and access compared to urban areas. In order to combat this problem that the LGBT community faces, social networks and apps such as Moovs have been created for "LGBT individuals with like-minds" that are "enabled to connect, share, and feel the heartbeat of the community as one."

In a study conducted by Darren E. Sherkat, Kylan M. de Vries, and Stacia Creek at the Southern Illinois University Carbondale, researchers found that women tend to be more consistently supportive of LGBT rights than men and that individuals that are divorced or have never married are also more likely to grant marital rights to same-sex couples than married or widowed individuals. They also claimed that white women are significantly more supportive than white men, but there are no gender discrepancies among African Americans. The year in which one was born was also found to be a strong indicator of attitude towards same-sex marriage—generations born after 1946 are considerably more supportive of same-sex marriage than older generations. Finally, the study reported that statistically African Americans are more opposed to same-sex marriage than any other ethnicity.

Studies show that Non-Protestant Christians are much more likely to support same-sex unions than Protestants; 63% of African Americans claim that they are Baptist or Protestant, whereas only 30% of white Americans are. Religion, as measured by individuals' religious affiliations, behaviors, and beliefs, has a lot of influence in structuring same-sex union attitudes and consistently influences opinions about homosexuality. The most liberal attitudes are generally reflected by Jews, liberal Protestants, and people who are not affiliated with religion. This is because many of their religious traditions have not "systematically condemned homosexual behaviors" in recent years. Moderate and tolerant attitudes are generally reflected by Catholics and moderate Protestants. And lastly, the most conservative views are held by Evangelical Protestants. Moreover, it is a tendency for one to be less tolerant of homosexuality if their social network is strongly tied to a religious congregation. Organized religion, especially Protestant and Baptist affiliations, espouse conservative views which traditionally denounce same-sex unions. Therefore, these congregations are more likely to hear messages of this nature. Polls have also indicated that the amount and level of personal contact that individuals have with homosexual individuals and traditional morality affects attitudes of same-sex marriage and homosexuality.

Burden of proof (law)

From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Burden_of_proof_(law)#Preponderance_of_the_evidence

In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts needed to satisfy all the required legal elements of the dispute.

The burden of proof is usually on the person who brings a claim in a dispute. It is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, a translation of which is: "the necessity of proof always lies with the person who lays charges." In civil suits, for example, the plaintiff bears the burden of proof that the defendant's action or inaction caused injury to the plaintiff, and the defendant bears the burden of proving an affirmative defense. The burden of proof is on the prosecutor for criminal cases, and the defendant is presumed innocent. If the claimant fails to discharge the burden of proof to prove their case, the claim will be dismissed.

Definition

The term "burden of proof" is a party's duty to prove a disputed assertion or charge, and includes the burden of production (providing enough evidence on an issue so that the trier-of-fact decides it rather than in a peremptory ruling like a directed verdict) and the burden of persuasion (standard of proof such as preponderance of the evidence).

A "burden of persuasion" or "risk of non-persuasion" is an obligation that remains on a single party for the duration of the court proceeding. Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim. For example, the presumption of innocence in a criminal case places a legal burden upon the prosecution to prove all elements of the offense (generally beyond a reasonable doubt), and to disprove all the defenses except for affirmative defenses in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution.

The burden of persuasion should not be confused with the evidential burden, or burden of production, or duty of producing (or going forward with evidence) which is an obligation that may shift between parties over the course of the hearing or trial. The evidential burden is the burden to adduce sufficient evidence to properly raise an issue at court.

There is no burden of proof with regard to motive or animus in criminal cases in the United States. The intent surrounding an offense is nevertheless crucial to the elements of the offense in a first-degree-murder conviction. This brings up the ethical dilemma of whether or not a death sentence should be imposed when the defendant's motives or intentions are the contingent factors in sentencing. However, in some cases such as defamation suits with a public figure as the defamed party, the public figure must prove actual malice.

Standard of proof in the United States

Burden of proof refers most generally to the obligation of a party to prove its allegations at trial. In a civil case, the plaintiff sets forth its allegations in a complaint, petition or other pleading. The defendant is then required to file a responsive pleading denying some or all of the allegations and setting forth any affirmative facts in defense. Each party has the burden of proof of its allegations.

Legal standards for burden of proof

Some evidence

Per Superintendent v. Hill (1985), in order to take away a prisoner's good conduct time for a disciplinary violation, prison officials need only have "some evidence," i.e., "a modicum of evidence"; however, the sentencing judge is under no obligation to adhere to good/work time constraints, nor are they required to credit time served.

Reasonable indications

"Reasonable indication (also known as reasonable suspicion) is substantially lower than probable cause; factors to consider are those facts and circumstances a prudent investigator would consider, but must include facts or circumstances indicating a past, current, or impending violation; an objective factual basis must be present, a mere 'hunch' is insufficient."

The reasonable indication standard is used in interpreting trade law in determining if the United States has been materially injured.

Reasonable suspicion

Main article: Reasonable suspicion

Reasonable suspicion is a low standard of proof to determine whether a brief investigative stop or search by a police officer or any government agent is warranted. It is important to note that this stop or search must be brief; its thoroughness is proportional to, and limited by, the low standard of evidence. A more definite standard of proof (often probable cause) would be required to justify a more thorough stop/search. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that reasonable suspicion requires specific, articulable, and individualized suspicion that crime is afoot. A mere guess or "hunch" is not enough to constitute reasonable suspicion.

An investigatory stop is a seizure under the Fourth Amendment. The state must justify the seizure by showing that the officer conducting the stop had a reasonable articulable suspicion that criminal activity was afoot. The important point is that officers cannot deprive a citizen of liberty unless the officer can point to specific facts and circumstances and inferences therefrom that would amount to a reasonable suspicion. The officer must be prepared to establish that criminal activity was a logical explanation for what he perceived. The requirement serves to prevent officers from stopping individuals based merely on hunches or unfounded suspicions. The purpose of the stop and detention is to investigate to the extent necessary to confirm or dispel the original suspicion. If the initial confrontation with the person stopped dispels suspicion of criminal activity the officer must end the detention and allow the person to go about his or her business. If the investigation confirms the officer's initial suspicion or reveals evidence that would justify continued detention the officer may require the person detained to remain at the scene until further investigation is complete, and may give rise to the level of probable cause.

Reasonable to believe

In Arizona v. Gant (2009), the United States Supreme Court defined a new standard, that of "reasonable to believe." This standard applies only to vehicle searches after the suspect has been placed under arrest. The Court overruled New York v. Belton (1981) and concluded that police officers are allowed to go back and search a vehicle incident to a suspect's arrest only where it is "reasonable to believe" that there is more evidence in the vehicle of the crime for which the suspect was arrested.

There is still an ongoing debate as to the exact meaning of this phrase. Some courts have said it should be a new standard while others have equated it with the "reasonable suspicion" of the Terry stop. Most courts have agreed it is somewhere less than probable cause.

Probable cause

Main article: Probable cause

Probable cause is a higher standard of proof than reasonable suspicion, which is used in the United States to determine whether a search, or an arrest, is unreasonable. It is also used by grand juries to determine whether to issue an indictment. In the civil context, this standard is often used where plaintiffs are seeking a prejudgement remedy.

In the criminal context, the U.S. Supreme Court in United States v. Sokolow, 490 U.S. 1 (1989), determined that probable cause requires "a fair probability that contraband or evidence of a crime will be found." The primary issue was whether Drug Enforcement Administration agents had a reason to execute a search. Courts have traditionally interpreted the idea of "a fair probability" as meaning whether a fair-minded evaluator would have reason to find it more likely than not that a fact (or ultimate fact) is true, which is quantified as a 51% certainty standard (using whole numbers as the increment of measurement). Some courts and scholars have suggested probable cause could, in some circumstances, allow for a fact to be established as true to a standard of less than 51%, but as of August 2019, the United States Supreme Court has never ruled that the quantification of probable cause is anything less than 51%. Probable cause can be contrasted with "reasonable articulable suspicion" which requires a police officer to have an unquantified amount of certainty the courts say is well below 51% before briefly detaining a suspect (without consent) to pat him down and attempt to question him. The "beyond reasonable doubt" standard, used by criminal juries in the United States to determine guilt for a crime, also contrasts with probable cause which courts hold requires an unquantified level of proof well above that of probable cause's 51%. Though it is beyond the scope of this topic, when courts review whether 51% probable cause certainty was a reasonable judgment, the legal inquiry is different for police officers in the field than it would be for grand jurors. It is also notable that in Franks v. Delaware, the U.S. supreme court held that probable cause requires that there not be "reckless disregard for the truth" of the facts asserted.

Examples of a police officer's truth-certainty standards in the field and their practical consequences are offered below:

• no level of evidence required: a knowing and voluntary consent-based encounter between police officer and another person
• reasonable articulable suspicion of criminal activity required: an involuntary stop initiated by the officer to briefly detain, attempt to question, and pat down outer clothing of a person of interest to police.
• probable cause of 51% truth or higher required that a crime was committed by a specific person : arrest and/or grand jury indictment of that person.

Some credible evidence

Some credible evidence is one of the least demanding standards of proof. This proof standard is often used in administrative law settings and in some states to initiate Child Protective Services (CPS) proceedings. This proof standard is used where short-term intervention is needed urgently, such as when a child is arguably in immediate danger from a parent or guardian. The "some credible evidence" standard is used as a legal placeholder to bring some controversy before a trier of fact, and into a legal process. It is on the order of the factual standard of proof needed to achieve a finding of "probable cause" used in ex parte threshold determinations needed before a court will issue a search warrant. It is a lower standard of proof than the "preponderance of the evidence" standard. The standard does not require the fact-finder to weigh conflicting evidence, and merely requires the investigator or prosecutor to present the bare minimum of material credible evidence to support the allegations against the subject, or in support of the allegation; see Valmonte v. Bane, 18 F.3d 992 (2nd Cir. 1994). In some Federal Appellate Circuit Courts, such as the Second Circuit, the "some credible evidence" standard has been found constitutionally insufficient to protect liberty interests of the parties in controversy at CPS hearings.

Preponderance of the evidence

Preponderance of the evidence (American English), also known as balance of probabilities (British English), is the standard required in most civil cases and in family court determinations solely involving money, such as child support under the Child Support Standards Act, and in child custody determinations between parties having equal legal rights respecting a child (typically the parents of a child who are divorced, separated, or otherwise living apart, assuming that neither has been found unfit). It is also the standard of proof by which the defendant must prove affirmative defenses or mitigating circumstances in civil or criminal court. In civil court, aggravating circumstances also only have to be proven by a preponderance of the evidence, as opposed to beyond reasonable doubt (as in criminal court).

The standard is met if the proposition is more likely to be true than not true. In other words, the standard is satisfied if there is a greater than fifty percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions, described it simply as "more probable than not." Until 1970, it was also the standard used in juvenile court in the United States.

Preponderance of the evidence is also the standard of proof used in United States administrative law.

From 2013 to 2020, the Department of Education required schools to use a preponderance of evidence standard in evaluating sexual assault claims.

Clear and convincing evidence

Clear and convincing evidence is a higher level of burden of persuasion than "preponderance of the evidence," but less than "beyond reasonable doubt." It is employed intra-adjudicatively in administrative court determinations, as well as in civil and certain criminal procedure in the United States. For example, a prisoner seeking habeas corpus relief from capital punishment must prove his factual innocence by clear and convincing evidence. New York State uses this standard when a court must determine whether to involuntarily hospitalize a mentally ill patient or to issue an Assisted Outpatient Treatment Order. This standard was also codified by the United States Supreme Court in all mental health civil commitment cases.

This standard is used in many types of equity cases, including paternity, persons in need of supervision, child custody, the probate of both wills and living wills, petitions to remove a person from life support ("right to die" cases), mental hygiene and involuntary hospitalizations, and many similar cases.

Clear and convincing evidence is the standard of proof used for immunity from prosecution under Florida's controversial stand-your-ground law. Once raised by the defense, the state must present its evidence in a pre-trial hearing, showing that the statutory prerequisites have not been met, and then request that the court deny a motion for declaration of immunity. The judge must then decide from clear and convincing evidence whether to grant immunity. This is a lower burden than "beyond a reasonable doubt," the threshold a prosecutor must meet at any proceeding criminal trial, but higher than the "probable cause" threshold generally required for indictment.

Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions (i.e. preponderance of the evidence), which only requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted.

This standard is also known as "clear, convincing, and satisfactory evidence"; "clear, cognizant, and convincing evidence", and is applied in cases or situations involving an equitable remedy or where a presumptive civil liberty interest exists. For example, this is the standard or quantum of evidence use to probate a last will and testament.

Beyond reasonable doubt

Main article: Reasonable doubt

This is the highest standard used as the burden of proof in Anglo-American jurisprudence and typically only applies in juvenile delinquency proceedings, criminal proceedings, and when considering aggravating circumstances in criminal proceedings. It has been described, in negative terms, as a proof having been met if there is no plausible reason to believe otherwise. If there is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case, then the level of proof has not been met.

Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that one would be willing to rely and act upon it without hesitation in the most important of one's own affairs. However, it does not mean an absolute certainty. The standard that must be met by the prosecution's evidence in a criminal prosecution is that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent unless and until proven guilty.

If the trier of fact has no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proved the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.

The term connotes that evidence establishes a particular point to a moral certainty which precludes the existence of any reasonable alternatives. It does not mean that no doubt exists as to the accused's guilt, but only that no reasonable doubt is possible from the evidence presented. Further to this notion of moral certainty, where the trier of fact relies on proof that is solely circumstantial, i.e., when conviction is based entirely on circumstantial evidence, certain jurisdictions specifically require the prosecution's burden of proof to be such that the facts proved must exclude to a moral certainty every reasonable hypothesis or inference other than guilt.

The main reason that this high level of proof is demanded in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in their death. These outcomes are far more severe than in civil trials, in which monetary damages are the common remedy.

Another noncriminal instance in which proof beyond a reasonable doubt is applied is LPS conservatorship.

Standard of proof in the United Kingdom

In the three jurisdictions of the UK (Northern Ireland; England & Wales; and Scotland) there are only two standards of proof in trials. (There are others which are defined in statutes, such as those relating to police powers.)

The criminal standard was formerly described as "beyond reasonable doubt". That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be persuaded "so that you are sure".

The civil standard is 'the balance of probabilities', often referred to in judgments as "more likely than not".

The civil standard is also used in criminal trials in relation to those defenses which must be proven by the defendant (for example, the statutory defense to drunk in charge that there was no likelihood of the accused driving while still over the alcohol limit). However, where the law does not stipulate a reverse burden of proof, the defendant need only raise the issue and it is then for the prosecution to negate the defence to the criminal standard in the usual way (for example, that of self-defence).

Prior to the decision of the House of Lords in Re B (A Child) [2008] UKHL 35 there had been some confusion – even at the Court of Appeal – as to whether there was some intermediate standard, described as the 'heightened standard'. The House of Lords found that there was not. As the above description of the American system shows, anxiety by judges about making decisions on very serious matters on the basis of the balance of probabilities had led to a departure from the common law principles of just two standards. Baroness Hale said:

70. ... Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.

72. ... there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent’s Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions’ enclosure when the door is open, then it may well be more likely to be a lion than a dog.

The task for the tribunal then when faced with serious allegations is to recognize that their seriousness generally means they are inherently unlikely, such that to be satisfied that a fact is more likely than not the evidence must be of a good quality. But the standard of proof remains 'the balance of probabilities'.

Other standards for presenting cases or defenses

Air of reality

See also: R v Cinous

The "air of reality" is a standard of proof used in Canada to determine whether a criminal defense may be used. The test asks whether a defense can be successful if it is assumed that all the claimed facts are to be true. In most cases, the burden of proof rests solely on the prosecution, negating the need for a defense of this kind. However, when exceptions arise and the burden of proof has been shifted to the defendant, they are required to establish a defense that bears an "air of reality." Two instances in which such a case might arise are, first, when a prima facie case has been made against the defendant or, second, when the defense mounts an affirmative defense, such as the insanity defense. This is similar to the concept of Summary judgment in the United States, though not identical.

Evidentiary standards of proof

Depending on the legal venue or intra-case hearing, varying levels of reliability of proof are considered dispositive of the inquiry being entertained. If the subject threshold level of reliability has been met by the presentation of the evidence, then the thing is considered legally proved for that trial, hearing or inquest. For example, in California, several evidentiary presumptions are codified, including a presumption that the owner of legal title is the beneficial owner (rebuttable only by clear and convincing evidence).

Examples

Criminal law

Criminal cases usually place the burden of proof on the prosecutor (expressed in the Latin brocard ei incumbit probatio qui dicit, non qui 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:

• With respect to the critical facts of a case the defendant has no burden of proof whatsoever.
• The state must prove the critical facts of the case to the appropriate level of certainty.
• 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 facing the charges against him.

For example, if the defendant (D) is charged with murder, the prosecutor (P) bears the burden of proof to show the jury that D did indeed murder someone.

• Burden of proof: P
  • Burden of production: P has to show some evidence that D had committed murder. The United States Supreme Court has ruled that the Constitution requires enough evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. If the judge rules that such burden has been met, then it is up to the jury itself to decide if they are, in fact, convinced of guilty beyond a reasonable doubt. If the judge finds there is not enough evidence under the standard, the case must be dismissed (or a subsequent guilty verdict must be vacated and the charges dismissed).
    • e.g. witness, forensic evidence, autopsy report
    • Failure to meet the burden: the issue will be decided as a matter of law. In this case, D is presumed innocent
  • Burden of persuasion: if at the close of evidence, the jury cannot decide if P has established with relevant level of certainty that D had committed murder, the jury must find D not guilty of the crime of murder
    • Measure of proof: P has to prove every element of the offense beyond a reasonable doubt, but not necessarily prove every single fact beyond a reasonable doubt.

However, in England and Wales, the Magistrates' Courts Act 1980, s.101 stipulates that where a defendant relies on some "exception, exemption, proviso, excuse or qualification" in his defence in a summary trial, the legal burden of proof as to that exception falls on the defendant, though only on the balance of probabilities. For example, a person charged with being drunk in charge of a motor vehicle can raise the defense that there was no likelihood of his driving while drunk. The prosecution has the legal burden of proof beyond reasonable doubt that the defendant exceeded the legal limit of alcohol and was in control of a motor vehicle. Possession of the keys is usually sufficient to prove control, even if the defendant is not in the vehicle and is perhaps in a nearby bar. That being proved, the defendant has the legal burden of proof on the balance of probabilities that he was not likely to drive.

In 2002, such practice in England and Wales was challenged as contrary to the European Convention on Human Rights (ECHR), art.6(2) guaranteeing right to a fair trial. The House of Lords held that:

• A mere evidential burden did not contravene art. 6(2);
• A legal / persuasive burden did not necessarily contravene art. 6(2) so long as confined within reasonable limits, considering the questions:
  • What must the prosecution prove to transfer burden to the defendant?
  • Is the defendant required to prove something difficult or easily within his access?
  • What threat to society is the provision designed to combat?

In some cases, there is a reverse onus on the accused. A typical example is that of a hit-and-run charge prosecuted under the Canadian Criminal Code. The defendant is presumed to have fled the scene of a crash, to avoid civil or criminal liability, if the prosecution can prove the remaining essential elements of the offense.

Civil law

In civil law cases, such as a dispute over a contract or a claim about an accidental injury, the burden of proof usually requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover.

This rule is not absolute in civil lawsuits; unlike with criminal offenses, laws may establish a different burden of proof, or the burden in an individual case may be reversed as a matter of fairness. For example, if a bank or government agency has a legal duty to keep certain records, and a lawsuit alleges that the proper records were not kept, then the plaintiff may not be required to prove a negative; instead, the respondent could be required to prove to the court that the records were kept.

Civil cases of the U.S. Supreme Court

In Keyes v. Sch. Dist. No. 1, the United States Supreme Court stated: "There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, 'is merely a question of policy and fairness based on experience in the different situations'." For support, the Court cited 9 John H. Wigmore, Evidence § 2486, at 275 (3d ed. 1940). In Keyes, the Supreme Court held that if "school authorities have been found to have practiced purposeful segregation in part of a school system", the burden of persuasion shifts to the school to prove that it did not engage in such discrimination in other segregated schools in the same system.

In Director, Office of Workers' Compensation Programs v. Greenwich Collieries, the Supreme Court explained that "burden of proof" is ambiguous because it has historically referred to two distinct burdens: the burden of persuasion, and the burden of production.

The Supreme Court discussed how courts should allocate the burden of proof (i.e., the burden of persuasion) in Schaffer ex rel. Schaffer v. Weast. The Supreme Court explained that if a statute is silent about the burden of persuasion, the court will "begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims". In support of this proposition, the Court cited 2 J. Strong, McCormick on Evidence § 337, 412 (5th ed. 1999), which states:

The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion.

At the same time, the Supreme Court also recognized "The ordinary default rule, of course, admits of exceptions. ... For example, the burden of persuasion as to certain elements of a plaintiff's claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions. ... Under some circumstances this Court has even placed the burden of persuasion over an entire claim on the defendant. ... [Nonetheless,] [a]bsent some reason to believe that Congress intended otherwise, therefore, [the Supreme Court] will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief."

Probable cause

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Probable_cause 

In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the U.S. Supreme Court's 1964 decision Beck v. Ohio, is when "whether at [the moment of arrest] the facts and circumstances within [an officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense."

It is also the standard by which grand juries issue criminal indictments. The principle behind the standard is to limit the power of authorities to perform random or abusive searches (unlawful search and seizure), and to promote lawful evidence gathering and procedural form during criminal arrest and prosecution. The standard also applies to personal or property searches.

The term comes from the Fourth Amendment of the United States Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable in this case may relate to statistical probability or to a general standard of common behavior and customs. The context of the word probable here is not exclusive to community standards, and could partially derive from its use in formal mathematical statistics as some have suggested; but cf. probō, Latin etymology.

In U.S. immigration proceedings, the “reason to believe” standard has been interpreted as equivalent to probable cause.

Probable cause should not be confused with reasonable suspicion, which is the required criteria to perform a Terry stop in the United States of America. The criteria for reasonable suspicion are less strict than those for probable cause.

Definition

A common definition is "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true". Notable in this definition is a lack of requirement for public position or public authority of the individual making the recognition, allowing for use of the term by citizens and/or the general public. One nonlegal definition of probable cause is, “(A) reasonable ground for supposing that a charge is well-founded” (Merriam-Webster, 2019).

In the context of warrants, the Oxford Companion to American Law defines probable cause as "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant)". "Probable cause" is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction. Even hearsay can supply probable cause if it is from a reliable source or supported by other evidence, according to the Aguilar–Spinelli test.

In Brinegar v. United States, the U.S. Supreme Court defines probable cause as "where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed."

History and development

The first page of the Constitution of the United States

The use of probable cause in the United States and its integration in the Fourth Amendment has roots in English common law and the old saying that "a man's home is his castle". This is the idea that someone has the right to defend their "castle" or home from unwanted "attacks" or intrusion. In the 1600s, this saying started to apply legally to landowners to protect them from casual searches from government officials.

In the 1700s, the British use of the writs of assistance and general warrants, which allowed authorities to search wherever and whenever sometimes, without expiration date, in the American colonies were raised in several court cases. The first was in Massachusetts in 1761 when a customs agent submitted for a new writ of assistance and Boston merchants challenged its legality. In the case the lawyer for the merchants James Otis argued that writs of assistance violated the fundamentals of English Law and was unconstitutional. John Adams, a lawyer at the time who later wrote the Massachusetts provision on which the Fourth Amendment heavily relied, was impacted by James Otis's argument

A case against general warrants was the English case Entick v. Carrington (1765). In that case, Lord Camden the chief judge said that general warrants were not the same as specific warrants and that parliament or case law could not authorize general warrants. Along with these statements, Lord Camden also affirmed that the needs of the state were more important than the individual's rights. This upheld the ideology of the social contract while holding to idea that the government purpose was to protect the property of the people. He called for the government to seek reasonable means in order to search private property, as well as a cause.

Probationers and parolees

In early cases in the United States, the Supreme Court held that when a person is on probation, the standard required for a search to be lawful is lowered from "probable cause" to "reasonable grounds" or "reasonable suspicion". Specifically, the degree of individualized suspicion required of a search was a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual's privacy interest reasonable. The Supreme Court held in United States v. Knights:

Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term "probable cause," a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable ... When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.

Later, in Samson v. California, the Supreme Court ruled that reasonable suspicion is not even necessary:

The California Legislature has concluded that, given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State's ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. This conclusion makes eminent sense. Imposing a reasonable suspicion requirement, as urged by petitioner, would give parolees greater opportunity to anticipate searches and conceal criminality.

The court held that reasonableness, not individualized suspicion, is the touchstone of the Fourth Amendment. It has been proposed that Fourth Amendment rights be extended to probationers and parolees, but such proposals have not gained traction. There is not much that remains of the Fourth Amendment rights of probationers after waiving their right to be free from unreasonable searches and seizures. An essay called "They Released Me from My Cage...But They Still Keep Me Handcuffed" was written in response to the Samson decision.

It has been argued that the requirement that a police officer must have individualized suspicion before searching a parolee's person and home was long considered a foundational element of the Court's analysis of Fourth Amendment questions and that abandoning it in the name of crime prevention represents an unprecedented blow to individual liberties.

Use of trained drug dogs

Officer training a drug dog

In the United States, use of a trained dog to smell for narcotics has been ruled in several court cases as sufficient probable cause. A K-9 Sniff in a public area is not a search according to the Supreme Court's ruling in 1983 United States v. Place. In this particular case, Place was in the New York Airport, and DEA agents took his luggage, even though he refused to have his bag searched. His luggage smelled of drugs, and the trained dog alerted the agents to this. Dogs alerting their officers provides enough probable cause for the officer to obtain a warrant. The DEA then procured a warrant and found a sizable amount of drugs in Place's luggage. It was not considered a search until after the warrant because a trained dog can sniff out the smell of narcotics, without having to open and look through the luggage. However, In Florida v. Jardines the court ruled that a police officer and narcotic-sniffing dog entering the porch of a home constitutes a search which invokes the requirement of probable cause or a valid search warrant

The power of probable cause by K-9 units smelling for drugs is not limited to just airports, but even in schools, public parking lots, high crime neighborhood streets, mail, visitors in prisons, traffic stops, etc. If there is an incident where the dog alerts its officer, the probable cause from the dog is considered enough to conduct a search, as long as one of the exceptions to a warrant are present, such as plain view, incident to arrest, automobile, exigency, or with a stop and frisk. During a traffic stop and checkpoint, it is legal for police to allow a drug dog to sniff the exterior of the car. This is legal as long as it does not cause the traffic stop to be any longer than it would have been without the dog. If the dog finds a scent, it is again a substitute for probable cause.

Cyber surveillance

Under the 2001 USA Patriot Act, law enforcement officials did not need probable cause to access communications records, credit cards, bank numbers and stored emails held by third parties. They only need reasonable suspicion that the information they were accessing was part of criminal activities. Under this, officers were authorized for a court order to access the communication information. Only certain information could be accessed under this act (such as names, addresses, and phone numbers, etc.). Probable cause was, and is, needed for more detailed information because law enforcement needs a warrant to access additional information. Generally, law enforcement was not required to notify the suspect. However, the text of the Patriot Act limits the application of that statute to issues that clearly involve the national security of the United States. The U.S. patriot Act expired on June 1, 2015.^[21]

Consent to search

Main article: Consent search

If voluntary consent is given and the individual giving the consent has authority over the search area, such as a car, house, business, etc. then a law enforcement officer does not need probable cause or even reasonable suspicion. If the person does not give voluntary consent, then the officer needs probable cause, and in some cases, a search warrant may be required to search the premises. Unless another exclusion to the fourth amendment of the US constitution occurs, when the person withdraws their consent for searching, the officer has to stop looking immediately.

Accident investigation

In the United States, the term probable cause is used in accident investigation to describe the conclusions reached by the investigating body as to the factor or factors which caused the accident. This is primarily seen in reports on aircraft accidents, but the term is used for the conclusion of diverse types of transportation accidents investigated in the United States by the National Transportation Safety Board or its predecessor, the Civil Aeronautics Board.

Related cases

In the United States

• The Supreme Court decision Illinois v. Gates lowered the threshold of probable cause by ruling that a "substantial chance" or "fair probability" of criminal activity could establish probable cause. A better-than-even chance is not required.
• The decision in Terry v. Ohio, established that "stop and frisks" (seizures) may be made under reasonable suspicion if the officer believes a crime has been committed, is, or soon will be committed with a weapon concealed on such person.
• In United States v. Matlock, the Court announced the "co-occupant consent rule" which permitted one resident to consent in the co-occupant's absence. The case established that an officer who made a search with a reasonable belief that the search was consented to by a resident did not have to provide a probable cause for the search.

However, in Georgia v. Randolph, the Supreme Court ruled, thus replacing Matlock, when officers are presented with a situation wherein two parties, each having authority to grant consent to search premises they share, but one objects over the other's consent, the officers must adhere to the wishes of the non-consenting party.

• New Jersey v. T. L. O., set a special precedent for searches of students at school. The Court ruled that school officials act as state officers when conducting searches, and do not require probable cause to search students' belongings, only reasonable suspicion. However, In Safford Unified School District v. Redding The court ruled that strip searches of students required probable cause or a search warrant.
• In O'Connor v. Ortega, the Court relied on T.L.O. to extend the reasonable suspicion standard to administrative searches of public employees' belongings or workplaces when conducted by supervisors seeking evidence of violations of workplace rules rather than criminal offenses.

Probable cause hearings

See also: Evidentiary hearing

In the various states, a probable cause hearing is the preliminary hearing typically taking place before arraignment and before a serious crime goes to trial. The judge is presented with the basis of the prosecution's case, and the defendant is afforded full right of cross-examination and the right to be represented by legal counsel. If the prosecution cannot make a case of probable cause, the court must dismiss the case against the accused.

Comparison with other countries

Sweden

In the criminal code of some European countries, notably Sweden, probable cause is a higher level of suspicion than "justifiable grounds" in a two level system of formal suspicion. The latter refers only to the suspect being able to and sometimes having a motive to commit the crime and in some cases witness accounts, whereas probable cause generally requires a higher degree of physical evidence and allows for longer periods of detention before trial. See häktning.

United Kingdom

England and Wales

Powers of arrest without a warrant can be exercised by a constable who 'has reasonable grounds' to suspect that an individual is "about to commit an offence", or is "committing an offence"; in accordance with the Serious Organised Crime and Police Act 2005 and the partially repealed Police and Criminal Evidence Act 1984. The concept of "reasonable grounds for suspecting" is used throughout the law dealing with police powers.

Scotland

In Scotland, the legal language that provides the police with powers pertaining to stopping, arresting and searching a person – who "has committed or is committing an offence", or is in possession of an offensive article, or an article used in connection with an offence – is similar to that England and Wales. The powers are provided by the Criminal Procedure (Scotland) Act 1995 and the Police, Public Order and Criminal Justice (Scotland) Act 2005.