[News] Patrick Kane being investigated for rape. UPD: DA announces no charges

[DJones]

Originally Posted by Weitz

I think you need to explain yourself a little better. From what I gather you are saying that once someone claims they were raped it should go straight to trial with no investigation? I am confused.

Hell if I know what the best solution is, I just know there is a gigantic black hole in our justice system when it comes to subjective crimes. And I believe Police as it stands now are hilariously unprepared to deal with it.

A well trained and educated investigator that knows the subtlety's of these situations may be able to conduct a proper investigation that would fit into the current system but as it stands now? Not a chance,

That's like asking a random police officer to solve who hacked into Ashley Maddison. He wouldn't even know where to start.

[jayswin]

Originally Posted by DJones

Hell if I know what the best solution is, I just know there is a gigantic black hole in our justice system when it comes to subjective crimes. And I believe Police as it stands now are hilariously unprepared to deal with it.

A well trained and educated investigator that knows the subtlety's of these situations may be able to conduct a proper investigation that would fit into the current system but as it stands now? Not a chance,

That's like asking a random police officer to solve who hacked into Ashley Maddison. He wouldn't even know where to start.

Sure, but I think a) you're underestimating how far rape investigations have come (most jurisdictions have dedicated rape/sexual abuse departments, or at least would bring people in from other jurisdictions if they're small and the case is serious), and b) it's a pointless argument to say we have to move away from police investigations in rape cases.

The reason you have no idea what the solution is but just know we can't trust an investigation is because it's a non starter in Canada or the States to completely abandon due process and put people on trial just because it's an emotional area that's hard to prove.

There's a lot of crimes that are hard to prove and 100% of the time the answer has been to figure out how to better train/facilitate police forces to deal with it, not go "Hey America, we're abandoning the justice system for rape because it's hard to prove, so........be careful when you're alone with anyone guys!!!".

[Makarov]

Originally Posted by DJones

Hell if I know what the best solution is, I just know there is a gigantic black hole in our justice system when it comes to subjective crimes. And I believe Police as it stands now are hilariously unprepared to deal with it.

A well trained and educated investigator that knows the subtlety's of these situations may be able to conduct a proper investigation that would fit into the current system but as it stands now? Not a chance,

That's like asking a random police officer to solve who hacked into Ashley Maddison. He wouldn't even know where to start.

What do you mean by "subjective crimes"?

[Buff]

Originally Posted by DJones

Hell if I know what the best solution is, I just know there is a gigantic black hole in our justice system when it comes to subjective crimes. And I believe Police as it stands now are hilariously unprepared to deal with it.

A well trained and educated investigator that knows the subtlety's of these situations may be able to conduct a proper investigation that would fit into the current system but as it stands now? Not a chance,

That's like asking a random police officer to solve who hacked into Ashley Maddison. He wouldn't even know where to start.

Police departments everywhere need one or two Detective Goren type investigators.

[DJones]

Originally Posted by Makarov

What do you mean by "subjective crimes"?

Subjective may be a bad choice of word. It's just a gigantic gray area he said she said mess. The consent laws are moving in a very weird direction where cops aren't even sure if a crime took place.

The system is just not set up to deal with it. My daughter is getting older and I would like their to be a better system set up to deal with date rape and the like. I'm not a lawyer but it's clear to see that it's not a perfect system.

[Cleveland Steam Whistle]

Originally Posted by DJones

Subjective may be a bad choice of word. It's just a gigantic gray area he said she said mess. The consent laws are moving in a very weird direction where cops aren't even sure if a crime took place.

The system is just not set up to deal with it. My daughter is getting older and I would like their to be a better system set up to deal with date rape and the like. I'm not a lawyer but it's clear to see that it's not a perfect system.

What do you mean the "consent laws" are moving to a bad place? You said it yourself, the issue with this case is likely a he said she said issue with no witnesses around or other evidence to push towards the alleged victims favour.

It's a terrible situation, especially if a crime was committed, but what are you proposing? Allowing more people, such as a jury, into a situation that lacks clear evidence doesn't help anyone, it just prolongs things for no better of an outcome. The right thing isn't to send a crime with minimal it no evidence to court and jury, the right process is keep the professionals who can find evidence looking until they truly hit the final dead end or find enough evidence to charge.

[jayswin]

Originally Posted by DJones

Subjective may be a bad choice of word. It's just a gigantic gray area he said she said mess.

It definitely is a tough area and often leads to a he said she said, but what you're suggesting is that they just take the she said because it's the she.

[DJones]

Originally Posted by Cleveland Steam Whistle

What do you mean the "consent laws" are moving to a bad place? You said it yourself, the issue with this case is likely a he said she said issue with no witnesses around or other evidence to push towards the alleged victims favour.

It's a terrible situation, especially if a crime was committed, but what are you proposing? Allowing more people, such as a jury, into a situation that lacks clear evidence doesn't help anyone, it just prolongs things for no better of an outcome. The right thing isn't to send a crime with minimal it no evidence to court and jury, the right process is keep the professionals who can find evidence looking until they truly hit the final dead end or find enough evidence to charge.

I don't know what needs to be done but something has to change. At this point I think I would tell my daughter to be quiet about it, no point going to police, send her to therapy and pay Bubba to deal with the situation personally.

[jayswin]

Originally Posted by DJones

I don't know what needs to be done but something has to change. At this point I think I would tell my daughter to be quiet about it, no point going to police, send her to therapy and pay Bubba to deal with the situation personally.

But again, I'm not sure anyone knows what point you're making. You keep saying you don't know what needs to be done as if there's more qualified people who would know.

At the end of the day, if there's any changes to be made it would be on the police process end, which you've boldly declared is so poor at rape investigations that we need to outright skip it and just toss guys in court as soon as a girl makes a complaint.

The reason you can't think of what could be done is that we have this thing called due process in Canada and the United States and what you're asking for is to skip that and send guys to the point where they're one step away from jail with a jury of citizens who may or may not be biased to decide their fate with no proof.

I understand the emotions involved and I see now where you're coming from with a daughter getting to that age, but at the end of the day what you want isn't realistic, it's completely unattainable, full stop.

[Strange Brew]

[QUOTE=jayswin;5408928]

Originally Posted by Strange Brew

Just be clear that was Djones who said that. You screwed up the quote string the first time you quoted us so now it looks like I'm saying everything Djones is.

It would be nice if Djones would come back and defend his controversial comment, though. Basically suggesting that he doesn't trust the police so Kane should have to face a trial even if the police don't lay a charge.

EDIT: And I don't know how to unscrew up a screwed up quote string, so I guess it will keep going!

Sorry for screwing up the quote. My bad.

[Makarov]

Originally Posted by jayswin

But again, I'm not sure anyone knows what point you're making. You keep saying you don't know what needs to be done as if there's more qualified people who would know.

At the end of the day, if there's any changes to be made it would be on the police process end, which you've boldly declared is so poor at rape investigations that we need to outright skip it and just toss guys in court as soon as a girl makes a complaint.

The reason you can't think of what could be done is that we have this thing called due process in Canada and the United States and what you're asking for is to skip that and send guys to the point where they're one step away from jail with a jury of citizens who may or may not be biased to decide their fate with no proof.

I understand the emotions involved and I see now where you're coming from with a daughter getting to that age, but at the end of the day what you want isn't realistic, it's completely unattainable, full stop.

I don't think you're using the word "proof" correctly. "Proof" is simply evidence which is probative (or tending to prove) a material fact. For example, the evidence of the complainant is "proof".

Also, generally speaking, police should only be doing a very, very limited assessment of complainant's credibility, especially in a classic he-said-she-said situation (like the vast majority of sexual assaults. Credibility should be assessed at trial, according to all of the rules of evidence and criminal procedure. It should not be assessed ad hoc by police, who are far more likely to succumb to old stereotypes and prejudices.

Basically, in the vast majority of sexual assault investigations, a complaint should lead to the laying of criminal charges.

[jayswin]

Originally Posted by Makarov

I don't think you're using the word "proof" correctly. "Proof" is simply evidence which is probative (or tending to prove) a material fact. For example, the evidence of the complainant is "proof".

Also, generally speaking, police should only be doing a very, very limited assessment of complainant's credibility, especially in a classic he-said-she-said situation (like the vast majority of sexual assaults. Credibility should be assessed at trial, according to all of the rules of evidence and criminal procedure. It should not be assessed ad hoc by police, who are far more likely to succumb to old stereotypes and prejudices.

Basically, in the vast majority of sexual assault investigations, a complaint should lead to the laying of criminal charges.

Oh, well I'll defer to you as I believe you have a legal background. So it's standard for police to get a complaint and basically just lay a charge and let the courts deal with it?

And I guess my follow up would be; If that's the case, then what's going on with this investigation? They seem to be doing a lot more than you suggest they're supposed to.

And also, that last sentence is a little concerning, as it suggests somebody should be charged as soon as anyone makes a complaint?

[Makarov]

Originally Posted by jayswin

Oh, well I'll defer to you as I believe you have a legal background. So it's standard for police to get a complaint and basically just lay a charge and let the courts deal with it?

And I guess my follow up would be; If that's the case, then what's going on with this investigation? They seem to be doing a lot more than you suggest they're supposed to.

And also, that last sentence is a little concerning, as it suggests somebody should be charged as soon as anyone makes a complaint?

With respect to your first question, I would say that it depends on the circumstances. Certainly, in cases where a complainant's statement is hopelessly at odds with a number of uninterested (in the outcome) third party witnesses (or physical evidence), then it certainly might be appropriate for police to exercise their discretion not to charge. However, this is very rarely the case in sex assault complaints.

With respect to your second question, I really can't say. I can only speak from my experience in the Canadian justice system. It may be quite different in the United States. It's also possible that the police are being particularly cautious due to the large amount of public attention on this file? Who knows? But will be interesting to see how it all plays out.

[CorsiHockeyLeague]

Originally Posted by Makarov

Basically, in the vast majority of sexual assault investigations, a complaint should lead to the laying of criminal charges.

Originally Posted by Makarov

in cases where a complainant's statement is hopelessly at odds with a number of uninterested (in the outcome) third party witnesses (or physical evidence), then it certainly might be appropriate for police to exercise their discretion not to charge. However, this is very rarely the case in sex assault complaints.

Makarov, especially given your experience and specialized knowledge in this area, all of your posts in this thread scare the absolute bejeezus out of me.

[Makarov]

Originally Posted by CorsiHockeyLeague

Makarov, especially given your experience and specialized knowledge in this area, all of your posts in this thread scare the absolute bejeezus out of me.

Well, I think you're probably overstating the extent of my experience and specialized knowledge! And I must admit to a bit of a Crown bias in most things.

Anyway, it occurred to me that I may be wrong about how many times police exercise their discretion not to lay charges after sex assault complaints. I would never learn about those instances. But I see many, many sex assault complaints that go to trial based only on the statement of the complainant. And many of those result in convictions.

It's worth noting again that the Criminal Code expressly provides that there is no requirement for corroborating evidence in order to make out sex assault. If there were, almost no one would be convicted of sexual assault (against adult complainants anyway.)

[driveway]

Correct me if I'm wrong here, but isn't it the District Attorney's Office who makes the decision to lay or not lay charges? Don't the police gather evidence, present the evidence to the lawyers, and then the lawyers make the choice as to whether or not charges can/should be brought?

[MBates]

Originally Posted by jayswin

Oh, well I'll defer to you as I believe you have a legal background. So it's standard for police to get a complaint and basically just lay a charge and let the courts deal with it?

And I guess my follow up would be; If that's the case, then what's going on with this investigation? They seem to be doing a lot more than you suggest they're supposed to.

And also, that last sentence is a little concerning, as it suggests somebody should be charged as soon as anyone makes a complaint?

The decision to charge is sometimes made by police, sometimes by the prosecutor (sometimes by police after consulting a prosecutor or their own in-house counsel). The Canadian standard for a charge simply is whether there are reasonable grounds to believe an offence was committed by the accused.

That said the police are sworn officers of the law just as much as a lawyer or judge and they ought to be using their training and experience to filter out cases that are not worthy of proceeding.

For example, would we want a highly skilled detective with 30 years of experience and a team of other officers / analysts / profilers / etc. automatically submitting every complaint for charges regardless of the evidence for a first year prosecutor to make that call? For a first-year judge to decide after trial?

The system is human from the first to the last step, so potential for human error never goes away. Anyone willing to say any allegation should be decided by a jury has clearly never made the walk to the courtroom after getting called and informed a verdict is in...

At the prosecution stage in Canada the test is more strict than having reasonable grounds...the prosecutor will assess (1) whether there is a reasonable likelihood of conviction and (2) whether there it is in the public interest to proceed. Without both of those being present, the charge should be withdrawn.

Most developed countries will have some variant of this test.

Even an acquittal at trial does not equate to a finding of factual innocence so not proceeding with a charge can hardly equate with a conclusion that the complainant made it up.

What is happening with this particular case? Impossible to say really. I do not agree with an earlier post suggesting the longer it goes on the worse it is for Kane. It might mean that...or it might mean the opposite.

One factor likely is, however, that in many US state penal codes criminal charges must be brought to trial within very short time periods from of an indictment. Of course exceptions exist, but the US seems to take much more seriously the obligation to quickly either convict or clear someone after they are charged.

Timelines for the people to be ready for trial in New York appear to be only 6 months for felonies:

http://codes.lp.findlaw.com/nycode/CPL/ONE/C/30/30.30

[Fighting Banana Slug]

Originally Posted by CorsiHockeyLeague

Makarov, especially given your experience and specialized knowledge in this area, all of your posts in this thread scare the absolute bejeezus out of me.

Curious as to what scares you. I would think the vast majority of complaints (whether sexual assault or otherwise) would lead to charges, assuming the surrounding facts don't contradict the accusation.

While made up accusations may occur, I would think in our system the number of those accusations are far outnumbered by unreported cases of assault.

[CliffFletcher]

Originally Posted by Fighting Banana Slug

While made up accusations may occur, I would think in our system the number of those accusations are far outnumbered by unreported cases of assault.

That may be the case. But our justice system recognizes that wrongful convictions are catastrophic, and sets the onus of proof high enough that the number of guilty who go free is far higher than the number of innocent who are convicted. That's intentional and expected.

[Fighting Banana Slug]

Originally Posted by CliffFletcher

That may be the case. But our justice system recognizes that wrongful convictions are catastrophic, and sets the onus of proof high enough that the number of guilty who go free is far higher than the number of innocent who are convicted. That's intentional and expected.

Agreed. But it is also our system that separates the policing from the judge/jury. I still don't see what is particularly scary about the handling of this particular crime, unless you see a much higher incident of false accusations, or a conspiracy by the police to push charges when they are not warranted. I don't think either is true. I would be curious if there are more instances of overturned cases for sexual assault. That might have been true with the advent of DNA testing, but not so sure now.