Soldier not guilty in sex attack on Manitoba girl

[jolinar of malkshor]

Hey fredy, how do you feel about the fact the courts have now decided that its ok to Rape a little girl if you have PTSD.

This is just ######ed.

http://www.cbc.ca/story/canada/natio...ot-guilty.html

Just a preview for those who haven't been paying attention to this case.

This ex Canadian armed forces officer raped a girl in The Paw and then said it was because he was suffering from PTSD because he say it happing in the Balkins.

As far as I am concered, tuff titty said the kitty. No excuses.

[ken0042]

Originally Posted by jolinar of malkshor

This ex Canadian armed forces officer raped a girl in The Paw

Talk about a freaky foot fettish!

(Sorry, but the typo was just too funny to leave alone.)

[Azure]

Pretty sick.

[jolinar of malkshor]

Originally Posted by ken0042

Talk about a freaky foot fettish!

(Sorry, but the typo was just too funny to leave alone.)

Ya ya how ever you spell it. As you have read on my previous posts I cannot spell as good as others on this post.

Don't say it freddy

[rubecube]

Everytime I see something like this, I get sick. All of the god damn bleeding-heart Liberals are so worried about rehabilitation, that they foresake justice and public safety in the name of it. I hope this judge gets tried for negligence if this guy strikes again.

[FlamesAddiction]

Originally Posted by rubecube

Everytime I see something like this, I get sick. All of the god damn bleeding-heart Liberals are so worried about rehabilitation, that they foresake justice and public safety in the name of it. I hope this judge gets tried for negligence if this guy strikes again.

I think it has more to do with him being a soldier. Too many people are willing to overlook his crimes because he is a "hero".

[fredr123]

I haven't been able to find a copy of the judgement so I can't really comment. Unless you want me to jump to quick emotional conclusions about how evil Borsch was or how stupid the justice system is.

In my own mind, I can understand how suffering from a mental disorder can vitiate the mental fault element that is necessary in many criminal offences. I think the part that a lot of people have problems with is accepting PTSD as a proper mental disorder. None of us were in the court room, none of us heard the expert testimony and had an opportunity to see how it held up under cross-examination. I don't think any of us has had a chance to read the judge's decisions either. It's difficult to come to form a proper opinion on this specific case without those kinds of things.

[ken0042]

I disagree Fred. From the article:
"He said he once came across a Serbian soldier raping a young girl and shot the man in the head."

Sounds like he knows that raping a young girl is wrong. And with something as absolutely wrong as this, I don't see any reason to give a person a second chance.

[jolinar of malkshor]

Originally Posted by fredr123

I haven't been able to find a copy of the judgement so I can't really comment. Unless you want me to jump to quick emotional conclusions about how evil Borsch was or how stupid the justice system is.

In my own mind, I can understand how suffering from a mental disorder can vitiate the mental fault element that is necessary in many criminal offences. I think the part that a lot of people have problems with is accepting PTSD as a proper mental disorder. None of us were in the court room, none of us heard the expert testimony and had an opportunity to see how it held up under cross-examination. I don't think any of us has had a chance to read the judge's decisions either. It's difficult to come to form a proper opinion on this specific case without those kinds of things.

IMO regardless of whether or not the defence made a successful mental illness defence is not the point. The point is that society has to decide what illness are acceptable for this kind of defence and if this defence is acceptable the person should still be held accountable and held in an institution for the same amount of time as could have received as punishment or in some cases even longer.

[rubecube]

Originally Posted by fredr123

I haven't been able to find a copy of the judgement so I can't really comment. Unless you want me to jump to quick emotional conclusions about how evil Borsch was or how stupid the justice system is.

In my own mind, I can understand how suffering from a mental disorder can vitiate the mental fault element that is necessary in many criminal offences. I think the part that a lot of people have problems with is accepting PTSD as a proper mental disorder. None of us were in the court room, none of us heard the expert testimony and had an opportunity to see how it held up under cross-examination. I don't think any of us has had a chance to read the judge's decisions either. It's difficult to come to form a proper opinion on this specific case without those kinds of things.

Or you can look at it from the perspective of public safety. Holding this guy in an institution for six months and then letting him go, doesn't guarantee he won't commit the same act in another year. Send him up the creek for 15 years and you're protecting the public from this monster.

[J pold]

I don’t know enough about PTSD to understand how much it could affect you mentally and if it is enough to justify letting a man off for committing such a horrible crime.

[fredr123]

I would still like to read the judge's reasons before I comment too much further so maybe we can bump this in a couple of days.

If someone is found not criminally responsible because of mental illness, they are not "not guilty". There is still the potential for the court to order them held in custody at an institution for any length of time. Being stuck in one of those places for quite a while isn't exactly getting off scot-free. From what I understand, the court has yet to rule on whether such an order will be made.

The idea within the criminal law is that for different offences the prosecution has to satisfy both the mental element (mens rea) and the physical element (actus reus). The mental element can range from absolutely nothing to full on knowledge. While it doesn't appear to be the case that the actus was challenged, the mental element was definitely at play.

In the case of murder, for example, the law requires the highest degree of mental fault (if you want to call it that) that can be found within the law. If that element is lacking or is vitiated by something else, then the accused cannot be found guilty. Over time, mental illness became one particular element that vitiates that mental element for certain offences.

Consider for the moment a 19 year old male with a severe mental disorder. Perhaps he has the mental functioning of a four year old. Maybe he has no concept of money. Would you hold that person criminally responsible for taking a candy bar at 7-11 without paying for it? Probably not. Now take that example and see how far you are willing to stretch it. What kind of offences WOULD you hold that guy responsible for? What if, instead of being severely mentally handicapped, the person had some other recognized mental disorder? What if the disorder was just recently included in the DSM-IV-TR rather than one that has enjoyed relative consensus for a long period of time in the psychological community?

These are just a few of the issues the law concerns itself with in cases like this. Undoubtably there are extreme emotions on either side of the issue and no doubt this case comes extremely close to that line. Awesome for discussion.

[rubecube]

Originally Posted by fredr123

Consider for the moment a 19 year old male with a severe mental disorder. Perhaps he has the mental functioning of a four year old. Maybe he has no concept of money. Would you hold that person criminally responsible for taking a candy bar at 7-11 without paying for it? Probably not. Now take that example and see how far you are willing to stretch it. What kind of offences WOULD you hold that guy responsible for? What if, instead of being severely mentally handicapped, the person had some other recognized mental disorder? What if the disorder was just recently included in the DSM-IV-TR rather than one that has enjoyed relative consensus for a long period of time in the psychological community?

The difference is, this guy is not a risk to the well-being of the general public.

[fredr123]

Originally Posted by rubecube

Or you can look at it from the perspective of public safety. Holding this guy in an institution for six months and then letting him go, doesn't guarantee he won't commit the same act in another year. Send him up the creek for 15 years and you're protecting the public from this monster.

Or you could just be delaying the next occurrence for 15 years instead of six months. Which is better than the alternative, I suppose, but not ideal.

Maybe in those six months he'll receive the treatment he needs and medication that could prevent further offences. Maybe he has an awesome lawyer that just saved his bacon.

[rubecube]

Originally Posted by fredr123

Or you could just be delaying the next occurrence for 15 years instead of six months. Which is better than the alternative, I suppose, but not ideal.

Maybe in those six months he'll receive the treatment he needs and medication that could prevent further offences. Maybe he has an awesome lawyer that just saved his bacon.

I guess my problem with it is that their's no accountability for the judges and/or lawyers if this guy becomes a repeat offender.

[fredr123]

Originally Posted by rubecube

The difference is, this guy is not a risk to the well-being of the general public.

Yes, that's right. You're missing the point, though. Extend the example and consider where you think the line should be drawn both in the case of the type/kind of mental disorder and the seriousness of the offence.

[rubecube]

Originally Posted by fredr123

Yes, that's right. You're missing the point, though. Extend the example and consider where you think the line should be drawn both in the case of the type/kind of mental disorder and the seriousness of the offence.

I think the type of offense is what should be considered the most. If the person is a clear threat to society, they should be locked and locked up for a very long time, whether it be in a nuthouse or a jailhouse.

[fredr123]

Just for fun, here are the principles courts must consider when sentencing offenders: http://laws.justice.gc.ca/en/C-46/26...tml#rid-268362

Purpose and Principles of Sentencing

Purpose

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6.

Objectives — offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
2005, c. 32, s. 24.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(v) evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25.

[fredr123]

Defence of mental disorder

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Presumption

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
R.S., 1985, c. C-46, s. 16; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 43, s. 2.

[rubecube]

Originally Posted by fredr123

Just for fun, here are the principles courts must consider when sentencing offenders: http://laws.justice.gc.ca/en/C-46/26...tml#rid-268362

Purpose and Principles of Sentencing

Purpose

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6.

Objectives — offences against children

And the judge basically ignored all but section (d) in this case.