Stickarts posted:

And that’s just it. How do you prove beyond reasonable doubt the presence or absence of an idea such as consent? It’s nigh impossible. Everything descends into heresay, waters are muddied, and reasonable doubt created. I don’t think anyone, aside from strawmen, seriously ever suggest getting rid of “Innocent till...” but you cannot deny there is a huge, huge efficacy gap when it comes to convicting in sexual assault cases. Add In the hostility (remember that Alberta judge who told the woman she should have kept her rear end in the sink?) that seems to be the norm every step of the way from complaint to verdict and only the intellectually dishonest can’t understand why so many people are demanding some sort of change.

M.McFly posted:

What specific change would you like to see?

Also wasn't that judge ultimately removed from the bench?

quote:

During a trial in the United Kingdom, a woman accused her cricket player husband of beating her with a bat and forcing her to drink bleach, among other things. The defendant in the trial, Mustafa Bashir, admitted to assault occasioning actual bodily harm, but the judge, Richard Mansell, did not sentence him to any prison time. In describing the reason behind his decision, Mansell said he did not believe that the victim was a "vulnerable person," pointing to her masters degree and her "network of friends":

quote:

A Canadian judge, Allen LeTourneau, delayed the sentencing of Chance Macdonald, a university student convicted of common assault against a woman, so that a criminal record would not interfere with his completion of a mandatory summer internship.

In addition to his flexibility in sentencing, LeTourneau was chastised for his apparent tendency to praise the accused, appearing highly concerned with Macdonald's future as a hockey player and the impact of the case on his prospects, rather than on the impact of the crime on the victim. LeTourneau's words to Macdonald, whom he ended up sentencing to 88 days of intermittent jail on weekends and two years of probation, capture these sentiments:

I played extremely high-end hockey and I know the mob mentality that can exist in that atmosphere. I'm sure you disappointed not only a lot of people including your parents, but yourself. Not everyone has the talents that you have, but you have them.

quote:

"A Woman's Adultery Is A Very Serious Attack On The Honor And Dignity Of A Man"

quote:

Modem rape scholarship has been informed by a number of empirical
premises concerning the operation of the criminal justice system
in rape cases. The most fundamental of these premises is that the
justice system discriminates, at every stage, against rape victims.' The
details of this charge can be briefly summarized. To begin, the case
attrition rate in rape cases is shockingly high, and very few rapists are
convicted of the crime.2 Victims often do not report the rape, largely
because they fear overbearing, hostile police,3 and-should a trial ensue-vicious
attacks on their character.4 Although false reports of
rape are no more common than of other crimes,5 justice system officials
are highly skeptical of women who claim to have been raped by
acquaintances. 6 If the rape victim's conduct prior to the crime violated
traditional sex-role norms, police commonly disbelieve her report
or blame her for the rape.7 Thus, officials deny justice to women
who have engaged in nonmarital sex,8 or other "improper" activities
such as heavy drinking or hitchhiking. 9 None of these sex-role-norm
violations is relevant to whether the woman was raped, 10 but the
norms are enforced because they serve to keep women in their place'1
and because the men who control the justice system are irrationally
obsessed with the danger of false rape accusations. 12
Afraid that losing cases will look bad on their records, prosecutors
are excessively reluctant to prosecute acquaintance rapists. 13
When they do prosecute, the system puts the victim rather than the
defendant on trial.14 Juries, motivated by the same biases as other
participants in the system, 15 often blame the victim and acquit the
rapist.16
Most rape scholars believe that, in large measure, these travesties
ofjustice have been due to rules of law, fashioned by male judges over
the centuries, that promote victim blaming.17 Among the foremost
such rules were the requirements that the victim resist her attacker 8
and that her testimony be corroborated by other evidence.' 9 The
"cautionary instruction,"20 warning the jury about the danger of false
rape accusations, has been another impediment to justice in rape
cases.2 ' According to some scholars, the very name of the crime
"rape" has perpetuated subtly harmful myths such as the idea that the
perpetrator's motivation is sexual rather than violent.22 Worst of all,
the rule allowing testimony and cross-examination about the woman's
sexual habits23 distracted the jury's attention from the defendant's behavior,
and often led to unjust acquittals. 24

Stickarts posted:

I don't know how to thread that needle, but that doesn't mean it is impossible or shouldn't be pursued. It would take many lawyers much effort to figure that, I suppose, not some guy who reads the internet on the shitter.

And yea, so Robin Camp got booted. He had been a lawyer or judge since the 1970s. Do you think that is the only sexual assault trial he took part in?

It turns out he is seeking reinstatement anyway!

Anyway, there are entire websites dedicated to highlighting lovely judicial behaviour towards sex assault

1.


18 month suspended sentence.

2. (Canada's own "Brock Turner" logic)


3.

How about what a judge had to say while handing out suspended sentences and fines for a court case where a woman was attacked by two ex-partners with a baseball bat with nails spiked into it:


4.
How about one from Ottawa last fall where a judge acquitted a man because he didn't know marital rape was illegal in Canada?

5.
Or the one from Quebec where the judge described the 17 year old victim (who was assaulted by a 49 year old cab driver) as being a "romantic", was "flattered" by the attention, and even if she was "a bit overweight," "she has a pretty face."

6.
Canada again. Another cab driver, with a history of sexual assault complaints against him, assaults a drunk passenger. He is found with his pants down and her passed out and half naked in the back seat. The judge rules "clearly, a drunk can consent"

Some more light reading from Harvard


This took like 5 minutes of googling. This is a real and pervasive issue.

---------------------------------------------------------------------------------------------------------------------

As for ways to deal with it without upending the careful balancing act that is contemporary criminal justice, I know restorative justice keeps popping up to deal with cases that exist in similar blind spots. As Argas said, if we are looking to change behaviour, this might be a route worth pursuing. I would argue that that does nothing to prevent future victims of sexual assault from avoiding these exact struggles, even in the glorious socialist space utopia awaiting us all where crime melts away like snow in July sun. But this is already ballooning so I will move on.

Rwanda has used restorative justice to deal with the many thousands of participants in the genocide.

Canada's own residential school survivor's very likely could have raked the many churches involved over the coals. But instead, the Truth and Reconciliation Commission was created as part of the Federal settlement. Educate and evolve. Growth rather than vengeance.

This might also serve to avoid the victim-blaming that is baked into sex assault trials that have become so controversial. Sex assault cases are dismissed all the time, as I have shown, because of how successful victim blaming is. How else do you muddy waters without stating she was asking for it in some fashion? I can understand that this sort of sowing of doubt is a natural, inevitable, and needed, part of court proceedings, but imagine yourself - having been raped - sitting on the stand listening to the defence lawyer insult your character, state you had asked for it, and excuse the actions of your assaulter as legal, understandable, defendable, etc. Rape is a unique crime in intimacy and intensity and the sort of extreme case, I am suggesting, that reveals limitations in the efficacy of our current system.

Restorative justice, though, is not so divisive, but rather is about finding common ground. An admission of guilt, sharing of grievances, a voice given to all parties present, and, hopefully, personal contrition and growth from the accused, connected to healing and forgiveness by the accuser. If we are looking to change behaviour, and avoid the sort of legalistic wranglings that serves to shutter and divide opinion rather than foster positive change, perhaps this is the avenue to take.

People who sexually assault would be far more likely, perhaps, to admit guilt (which helps with healing) if they knew they weren't going to spend 20 years in prison for doing so (not like they do anyway lol). If the focus could shift to emphasise personal impact, admission of guilt, communication, therapy, education, growth, change, etc., instead of fighting off federal prison by any means necessary, it seems that might be the stimulus for introspection and change. If the accused could prove they were engaging in a process of change and learning in good faith... I don't know. It seems like it would be both imperfect but an improvement over the current system where hundreds of perpetrators are allowed to walk free for every successful conviction.

cowofwar posted:

Stickarts posted:

I don't know what this means.

PT6A posted:

It means the idea of "well what if we were just nice to rapists and didn't send them to jail?" (granted, an oversimplification of the idea of restorative justice, but not entirely incorrect) is physically repulsive.

Stickarts posted:

That seems like a narrow and limited interpretation of a post that I tried to prove at great lengths how much women navigating the current legal system are disadvantaged and treated with hostility every step of the way, over the course of a series of posts highlighting current legal injustice.

If you want me to spell it out - restorative justice only works if both parties agree to the process. I would 100% bonafide, absolute, heck yea, no doubt support any woman who has the courage and strength to take her attacker to traditional court so that rapists might end up punished and/or in jail. Because of course I would.

cuz, spoiler alert, we're already not sending rapists to jail

Stickarts posted:

The Ghomeshi Verdict: Re-imagining How Future Sexual Assault Cases Are Heard

quote:

The “Love Bug”

[35] One of L.R.'s clear memories was simply, and demonstrably, wrong.
She testified at length about Mr. Ghomeshi's bright yellow Volkswagen "Love
Bug" or "Disney car". This was a significant factor in her impression that Mr.
Ghomeshi was a "charming" and nice person. However, I find as a fact that Mr.
Ghomeshi did not acquire the Volkswagen Beetle that she described until seven
months after the event she was remembering.

[36] In a case which turns entirely on the reliability of the evidence of the
complainant, this otherwise, perhaps, innocuous error takes on greater
significance. This was a central feature of her assessment of Mr. Ghomeshi as a
"nice guy" and a safe date. Her description of his car was an important feature of
her recollection of the first date. And yet we know that this memory is simply
wrong. The impossibility of this memory makes one seriously question, what else
might be honestly remembered by her and yet actually be equally wrong? This
demonstrably false memory weighs in the balance against the general reliability
of L.R.’s evidence as a whole

....

[44] L.R.'s evidence in-chief seemed rational and balanced. Under crossexamination,
the value of her evidence suffered irreparable damage. Defence
counsel's questioning revealed inconsistencies, and incongruous and deceptive
conduct. L.R. has been exposed as a witness willing to withhold relevant
information from the police, from the Crown and from the Court. It is clear that
she deliberately breached her oath to tell the truth. Her value as a reliable
witness is diminished accordingly.

quote:

The Undisclosed Evidence of a Continued Relationship

[81] I find as a fact that Ms. DeCoutere attempted to mislead the Court about
her continued relationship with Mr. Ghomeshi. It was only during crossexamination
that her expressed interest in a continuing close relationship was
revealed.

[82] Ms. DeCoutere testified that after the weekend in Toronto in July 2003,
she definitely knew that she did not want to have a romantic relationship with Mr.
Ghomeshi. She gave us her “guarantee” under oath that she had no romantic
feelings for Mr. Ghomeshi. Even in her late disclosure, just prior to taking the
stand, Ms. DeCoutere claimed that any personal contact with Mr. Ghomeshi
following the Canada Day long-weekend in 2003 was simply an attempt to
"flatten out [her] negative." She maintained that any emails that she sent to Mr.
Ghomeshi following that weekend were "indifferent" in tone and not "playful", as
they had been previously.

[83] Once again this was simply not true. In an email sent just two weeks
later, on July 17, 2003, Ms. DeCoutere told Mr. Ghomeshi that he was “magic”.
On July 25, 2003, three weeks after the alleged assault, she wrote to Mr.
Ghomeshi that she was “really glad to know you”. On April 6, 2004, she wrote an
email to Mr. Ghomeshi suggesting help with “an itch that you need… scratching”.
On October 19, 2005, she sent him what she described herself as a “ridiculous,
sexualized photo” of herself with the neck of a beer bottle in her mouth simulating
an act of fellatio. As recently as September 8, 2010, she posted a Facebook
message fondly recalling the 2003 Canada Day weekend.

[84] On July 5th 2003, within twenty-four hours of the alleged choking
incident, Ms. DeCoutere emailed Mr. Ghomeshi with the message:
“Getting to know you is literally changing my mind, in a good
way. You challenge me and point to stuff that has not been
pulled out in a very long time. I can tell you about that sometime
and everything about our friendship so far will make
sense. You kicked my rear end last night and that makes me want
to gently caress your brains out, tonight.”
There is not a trace of animosity, regret or offence taken, in that message.

[85] Five days after the alleged choking assault, Ms. DeCoutere was home in
Halifax and she sent a hand-written love letter to Jian Ghomeshi. She expressed
her regret that she and Mr. Ghomeshi had not spent that night together. The
letter concludes, “I love your hands.” When confronted with this seemingly
incongruous message, from someone who claims to have been recently choked
by the recipient’s hands, she said that she was intentionally referencing the thing
that had hurt her.

quote:

Possible Collusion

[107] S.D. said that her decision to come forward was inspired by others
coming forward in 2014. She consumed the media reports and spoke to others
for about six weeks after the “Ghomeshi Scandal” broke in the media. Although
she initially testified that she and Ms. DeCoutere never discussed the details of
her experience prior to her police interview, in cross-examination she admitted
that in fact she had.

.....

[109] The extreme dedication to bringing down Mr. Ghomeshi is evidenced
vividly in the email correspondence between S.D. and Ms. DeCoutere. Between
October 29, 2014 and September 2015, S.D. and Ms. DeCoutere exchanged
approximately 5,000 messages. While this anger and this animus may simply
reflect the legitimate feelings of victims of abuse, it also raises the need for the
Court to proceed with caution. Ms. DeCoutere and S.D. considered themselves
to be a “team” and the goal was to bring down Mr. Ghomeshi.

[110] The team bond between Ms. DeCoutere and S.D. was strong. They
discussed witnesses, court dates and meetings with the prosecution. They
described their partnership as being “insta sisters”. They shared a publicist. They
initially shared the same lawyer. They spoke of together building a “Jenga Tower”
against Mr. Ghomeshi. They expressed their top priority in the crude vernacular
that they sometimes employed, to “sink the prick,… ‘cause he’s a loving piece of
poo poo.”

quote:

[131] There is no legal bar to convicting on the uncorroborated evidence of a
single witness. However, one of the challenges for the prosecution in this case is
that the allegations against Mr. Ghomeshi are supported by nothing in addition to
the complainant’s word. There is no other evidence to look to determine the truth.
There is no tangible evidence. There is no DNA. There is no "smoking gun".
There is only the sworn evidence of each complainant, standing on its own, to be
measured against a very exacting standard of proof. This highlights the
importance of the assessment of the credibility and the reliability and the overall
quality, of that evidence
......

[133] Ultimately my assessment of each of the counts against the accused
turns entirely on the assessment of the reliability and credibility of the
complainant, when measured against the Crown’s burden of proof. With respect
to each charge, the only necessary determination is simply this: Does the
evidence have sufficient quality and force to establish the accused’s guilt beyond
a reasonable doubt?

....

[137] Each complainant was confronted with a volume of evidence that was
contrary to their prior sworn statements and their evidence in-chief. Each
complainant demonstrated, to some degree, a willingness to ignore their oath to
tell the truth on more than one occasion. It is this aspect of their evidence that is
most troubling to the Court.

[138] The success of this prosecution depended entirely on the Court being
able to accept each complainant as a sincere, honest and accurate witness.
Each complainant was revealed at trial to be lacking in these important attributes.
The evidence of each complainant suffered not just from inconsistencies and
questionable behaviour, but was tainted by outright deception.

[139] The harsh reality is that once a witness has been shown to be deceptive
and manipulative in giving their evidence, that witness can no longer expect the
Court to consider them to be a trusted source of the truth. I am forced to
conclude that it is impossible for the Court to have sufficient faith in the reliability
or sincerity of these complainants. Put simply, the volume of serious deficiencies
in the evidence leaves the Court with a reasonable doubt.

Stickarts posted:

Canada's own residential school survivor's very likely could have raked the many churches involved over the coals. But instead, the Truth and Reconciliation Commission was created as part of the Federal settlement. Educate and evolve. Growth rather than vengeance.

Dreylad posted:

Also just wanted to say thanks for the good posts on the subject Stickarts, and for trying to introduce some nuance to the discussion.

Chillyrabbit posted:

Yeah thanks stickarts for the links and posts its good to for me to step out of echo chambers.

Which reminds me there was some government study on the news asking for more time to complete it what was it?

infernal machines posted:

I'm way late to this and I'm pretty sure it was covered earlier, but am I correct in understanding the CPC just tried to bring down a majority government by filibustering a confidence vote? How the hell was that meant to work exactly?

Stickarts posted:

That seems like a narrow and limited interpretation of a post that I tried to prove at great lengths how much women navigating the current legal system are disadvantaged and treated with hostility every step of the way, over the course of a series of posts highlighting current legal injustice.

EvilJoven posted:

I'm extremely hostile to the concept of throwing out due process for the accused, partially because I know what it's like to be on the receiving end of false accusations (albeit not accusations of a sexual nature) and TBH the whole 'rape culture' thing is something I usually can't identify with because I've never personally encountered anyone harbouring attitudes that sexual assault is ever acceptable or the fault of the victim, but then I read stuff like what's been posted here and it makes me both happy that I haven't had the displeasure of encountering people like that, and extremely disturbed by just how loving horrible some of that poo poo is. God drat people can be disgusting.

TheKingofSprings posted:

Due process in the court system and the concept of innocence until proven guilt are incredibly important but it is such a failing how badly the system favours the wealthy and privileged every step of the way and that element of the justice system has to change.

I just don’t know what would serve best to accomplish it.

the talent deficit posted:

nationalize criminal law

the talent deficit posted:

very few people openly admit sexual assault is acceptable but if you put to them a scenario that is plainly sexual assault you'd be surprised how many people will come up with rationalizations for why - actually - it's not sexual assault

Franks Happy Place posted:

It's OK, you can come do weed, it pays way better anyhoo

JawKnee posted:

This. Get rid of for profit lawyers

the talent deficit posted:

nationalize criminal law

Wistful of Dollars posted:

I have wondered if we could do to criminal law what we did to healthcare.

the talent deficit posted:

very few people openly admit sexual assault is acceptable but if you put to them a scenario that is plainly sexual assault you'd be surprised how many people will come up with rationalizations for why - actually - it's not sexual assault