Jian Ghomeshi: Guilty or Innocent?

[PepsiFree]

Originally Posted by Delgar

That's a pretty stacked statement on its own. The judgement itself explains why each witness' testimony was not adequate.

If you have an alternative, I'd like to hear it.

Nope, I think the system works as well as can be expected without venturing into the dangerous territory of convicting the innocent.

Originally Posted by GullFoss

Its not symetrical, and victims are given the short end of the stick...ill give you that. But id suggest (1) that its not stacked so much as is it tilted to be biased in favor of the accused and (2) its tilted against the victims of all crime, and is not actually specific to sexual assalt victims

And id suggest thats its purposely like that, largely driven by the reasonable doubt philosophy. Better to let 100 guilty men free than comdemn 1 falsely accused.

I think the difference between stacked/tilted is semantics, but I agree, though I think because of the nature of sexual assault the burden of proof is a much heavier burden to bear. If someone murders someone, there is tangible physical evidence. If someone is sexually assaulted, that isn't always the case.

I think you're right that the tilt is the same for all crimes, it's simply that it's much harder to convict someone of sexual assault or rape than it is of murder or even plain old assault.

[White Out 403]

Originally Posted by PepsiFree

Despite being a little dramatic and catty, I was with you until that last line.

The system IS stacked against sexual assault victims. That's a pretty legitimate grievance.

Sure, and unless you want to start convicting people and taking away their freedoms on a simple preponderance of evidence, that's how it should be.

[CliffFletcher]

Originally Posted by PepsiFree

Despite being a little dramatic and catty, I was with you until that last line.

The system IS stacked against sexual assault victims. That's a pretty legitimate grievance.

Is it stacked any more against sexual assault victims than the victims of other crimes? Because one of the myths being peddled in the coverage of this story is that these women were challenged on their credibility and honesty because they're testifying in a sexual assault case (and by extension, because they're women and the system is patriarchal). But they would be challenged on their credibility and honesty in a trial for any crime. As would any man. That's the way our justice system works - witnesses are challenged. And yet I'm not sure I've seen a single article or column mention that. I suspect the average Canadian thinks alleged victims in sexual assault cases are treated differently by the law than alleged victims of other crimes. That's a failure of our media to do their jobs.

There's something dismaying about the way the media reaction to a trial that collapsed due to the omission of facts has itself demonstrated an egregious omission of facts. Just shows that the cultural right doesn't have a monopoly on 'truthiness.'

[GullFoss]

Originally Posted by PepsiFree

Nope, I think the system works as well as can be expected without venturing into the dangerous territory of convicting the innocent.




I think the difference between stacked/tilted is semantics, but I agree, though I think because of the nature of sexual assault the burden of proof is a much heavier burden to bear. If someone murders someone, there is tangible physical evidence. If someone is sexually assaulted, that isn't always the case.

I think you're right that the tilt is the same for all crimes, it's simply that it's much harder to convict someone of sexual assault or rape than it is of murder or even plain old assault.

Harder...not much harder. I think the conviction rate is 40% of sexual assault, 50% for physical assualt, and 60% for all crimes.

Sexual assualt is often so grey IMO...even in the moment. Its very hard to figure out consent sometimes.

Sometimes i think sexual assault can actually be in the eye of the beholder. I think a lot of victims genuinely feel like victims within the narrative in their heads, even though a lot of accused genuinely feel like they had consent in the narrative within their head.

[Johnny199r]

Originally Posted by GullFoss

Harder...not much harder. I think the conviction rate is 40% of sexual assault, 50% for physical assualt, and 60% for all crimes.

Sexual assualt is often so grey IMO...even in the moment. Its very hard to figure out consent sometimes.

Sometimes i think sexual assault can actually be in the eye of the beholder. I think a lot of victims genuinely feel like victims within the narrative in their heads, even though a lot of accused genuinely feel like they had consent in the narrative within their head.

As someone who prosecuted and defended lots of sexual assaults, many of them go like this:

"I woke up with him touching me/raping me"

"That's a lie, I never did that"

With no physical evidence, no other eye witnesses, just plan old he said she said. Sometimes the victim calls their friends or runs to their family immediately and tells them what happens and they go to the police. But that doesn't create any real evidence, a judge can't interpret that reaction as reinforcing the truthfulness of the allegation.

Judge says, "I wasn't there, I can't say for sure it happened, I think it probably happened. But I can't say for 100% certainty. And acquits.

The difference between sexual assaults and many other offences is that there is usually more evidence ie assaults have bruises that are photographed, or witnessed by other people.

If I was sexually assaulted by someone with money, I'd sue the pants off them. You only need to get over a balance of probabilities. But then again, you'd need money up front to pay a lawyer. However, from my experience, most people who are charged with sexual assault have little or no money.

[Cecil Terwilliger]

Originally Posted by Johnny199r

If I was sexually assaulted by someone with money, I'd sue the pants off them. You only need to get over a balance of probabilities.

Marge: You can't fire me just because I'm married. I'm gonna sue the pants of you!
Burns: You don't have to sue me to get my pants off.

[Philly06Cup]

Originally Posted by CliffFletcher

Is it stacked any more against sexual assault victims than the victims of other crimes? Because one of the myths being peddled in the coverage of this story is that these women were challenged on their credibility and honesty because they're testifying in a sexual assault case (and by extension, because they're women and the system is patriarchal). But they would be challenged on their credibility and honesty in a trial for any crime. As would any man. That's the way our justice system works - witnesses are challenged. And yet I'm not sure I've seen a single article or column mention that. I suspect the average Canadian thinks alleged victims in sexual assault cases are treated differently by the law than alleged victims of other crimes. That's a failure of our media to do their jobs.

There's something dismaying about the way the media reaction to a trial that collapsed due to the omission of facts has itself demonstrated an egregious omission of facts. Just shows that the cultural right doesn't have a monopoly on 'truthiness.'

You really think there is no sexism present in the legal process?

I understand the point you are trying to make, but sexism exists everywhere, and the system is very much stacked against women. By system I include the whole set of procedures leading up to the trial.

1. There are fewer female cops than male cops. This can make it more uncomfortable for women to come forward.
2. Sensitivity training of cops. They are not psychiatrists or medical professionals and can't fully comprehend what these women are going through.
3. Societal views on women's sexuality. Victim blaming is a real thing. There is a notion in parts of our society that women who dress or behave a certain way are partly to blame for unwanted sexual attention. These ideas definitely float through the mind of the perpetrator. But they also go through minds of the victims, as well as the cops, judges, lawyers, and jury, and it will all have a negative affect on the victims.
4. Emphasis on testimony. One reason sexual assault cases are special is because it so often is he said she said. Sexual activities occur behind closed doors, and leave behind little evidence. Consent is very much a grey area. This means the testimony is sometimes all a victim has to make a case. And indeed it can very easily be attack by a savvy cross-examination. Also remember that most witnesses are still extremely traumatized witness by the events. With other crimes, there is more solid evidence to rely on. The trauma of having someone sexually assault you is also much greater than a normal assault or having someone rob you.
5. Lack of understanding of sexual trauma. This has definitely gotten better in recent times. But in the past, it was not understood that victims of sexual assault could still seek out their abuser, or exhibit other 'irrational' behaviour. It's probably still not understood by many in our society, and contributes to victim blaming / shaming.

[OMG!WTF!]

Originally Posted by CliffFletcher

Is it stacked any more against sexual assault victims than the victims of other crimes?

Yes as evidenced by the fact that sex assault is always the most under reported major crime by a huge factor. Or as evidenced by the judge who, in 2014, told a female victim to keep her knees together. Or by the fact that cops in almost every single jurisdiction in north America in the last five years under took special training in dealing with this one particular line item.

[CorsiHockeyLeague]

Originally Posted by Philly06Cup

You really think there is no sexism present in the legal process?

1. There are fewer female cops than male cops. This can make it more uncomfortable for women to come forward.
2. Sensitivity training of cops. They are not psychiatrists or medical professionals and can't fully comprehend what these women are going through.

These are problems for sexual assault victims, but they are not problems related to sexism.

3. Societal views on women's sexuality. Victim blaming is a real thing. There is a notion in parts of our society that women who dress or behave a certain way are partly to blame for unwanted sexual attention.

This is sexism, and I would agree that though huge strides have been made, these attitudes still exist. Although I would also note that no one seems to be able to decide what attitudes about women's sexuality AREN'T sexist, given that apparently lipstick feminism is in some peoples' minds just fueling some poorly defined oppressive patriarchal system... but that's a whole other issue. With you on this one.

4. Emphasis on testimony. One reason sexual assault cases are special is because it so often is he said she said. Sexual activities occur behind closed doors, and leave behind little evidence. Consent is very much a grey area. This means the testimony is sometimes all a victim has to make a case. And indeed it can very easily be attack by a savvy cross-examination. Also remember that most witnesses are still extremely traumatized witness by the events. With other crimes, there is more solid evidence to rely on. The trauma of having someone sexually assault you is also much greater than a normal assault or having someone rob you.

This is also not a problem related to sexism, but related to the circumstances surrounding the offence and the demands of our legal system for evidence before subjecting people to criminal sanctions. There's no obvious solution in light of that tension - degrading the burden of proof is an absolute non-starter.

5. Lack of understanding of sexual trauma. This has definitely gotten better in recent times. But in the past, it was not understood that victims of sexual assault could still seek out their abuser, or exhibit other 'irrational' behaviour. It's probably still not understood by many in our society, and contributes to victim blaming / shaming.

Agree with this one too, it's basically part and parcel with #3.

[OMG!WTF!]

This is a very interesting article....The trial one floor above Ghomeshi's....

https://beta.thestar.com/news/insigh...hi-porter.html

Here are some of the questions and statements Bristow (defense lawyer) made:“You could have phoned someone. Instead, you chose to go home with someone who was angry, berating you and yelling at you.”


“You know a rape kit should be done as soon as possible ... After Mr. Ururyar raped you, you did not go straight to the hospital. You went home, correct?”


“Your career was more important than getting a violent rapist off the streets?”


“You didn’t fight back in any way?”


“You lay in bed all night next to the person who violently raped you?”


“You could have called 911, but you didn’t.”

And people say sex assault victims don't face a stacked deck.

[driveway]

Ghomeshi was acquitted and is therefore innocent. Do I personally think he committed acts for which he should go to prison? Yes, I think he most likely did. However, we have a judicial process in this country and it was followed as laid out in our legal system and therefore he gets to go free.

Do I think changes need to be made to how sexual assault trials are handled? Yes. Do I think there is a fundamental difference between sexual assault and other kinds of violent crime? Yes.

[llwhiteoutll]

Originally Posted by driveway

Ghomeshi was acquitted and is therefore innocent. Do I personally think he committed acts for which he should go to prison? Yes, I think he most likely did. However, we have a judicial process in this country and it was followed as laid out in our legal system and therefore he gets to go free.

Do I think changes need to be made to how sexual assault trials are handled? Yes. Do I think there is a fundamental difference between sexual assault and other kinds of violent crime? Yes.

What changes would you suggest? You can't lower the standard of proof and you can't stop witnesses or complainants from being cross-examined or discredited.

[llwhiteoutll]

Originally Posted by OMG!WTF!

This is a very interesting article....The trial one floor above Ghomeshi's....

https://beta.thestar.com/news/insigh...hi-porter.html




And people say sex assault victims don't face a stacked deck.

Cross-examination of a witness or complainant and impeaching testimony is not a stacked deck. It's one of the fundamental parts of our legal system.

[CorsiHockeyLeague]

Originally Posted by driveway

Ghomeshi was acquitted and is therefore innocent.

Do I think changes need to be made to how sexual assault trials are handled? Yes. Do I think there is a fundamental difference between sexual assault and other kinds of violent crime? Yes.

I mean, being acquitted doesn't mean you're innocent, but that's probably just semantics. My real question is, what do you think is the fundamental difference between sexual assault and other kinds of violent crime?

[Cecil Terwilliger]

Originally Posted by driveway

Ghomeshi was acquitted and is therefore innocent. Do I personally think he committed acts for which he should go to prison? Yes, I think he most likely did. However, we have a judicial process in this country and it was followed as laid out in our legal system and therefore he gets to go free.

Do I think changes need to be made to how sexual assault trials are handled? Yes. Do I think there is a fundamental difference between sexual assault and other kinds of violent crime? Yes.

why does being acquitted make him innocent? Not guilty does not equal innocent.

[troutman]

Originally Posted by CorsiHockeyLeague

I mean, being acquitted doesn't mean you're innocent, but that's probably just semantics. My real question is, what do you think is the fundamental difference between sexual assault and other kinds of violent crime?

If you were stabbed, no one is going to ask you what you were wearing, if you were drinking, if you exchanged emails with the accused etc. There is no way to argue consent.

[OMG!WTF!]

Originally Posted by llwhiteoutll

Cross-examination of a witness or complainant and impeaching testimony is not a stacked deck. It's one of the fundamental parts of our legal system.

You've totally missed the point. If during a drunken night at the bar and your best friend punches you in the face, does it matter that you were friends? And does it matter that you were being a jerk and deserved a punch in the face? Does it matter that you crashed at his house after sharing a cab home? I get that sexual encounters are different but that is exactly why the deck is stacked.

[sworkhard]

Originally Posted by troutman

If you were stabbed, no one is going to ask you what you were wearing, if you were drinking, if you exchanged emails with the accused etc. There is no way to argue consent.

Um, yes they would. They would ask what you were wearing to determine if other witnesses (if any) saw you wearing that (to avoid confusion between different events, etc) and if you were drinking, what your behavior was before etc. This information is crucial not just for determining if someone is guilty, but for determining the appropriate sentence. If your drunk and up in someone's face and they stab you, they will go to jail, but for a shorter, often much shorter, period of time. It's about recognizing the contributions to the crime that are outside of the accused control.

[CorsiHockeyLeague]

Originally Posted by troutman

If you were stabbed, no one is going to ask you what you were wearing, if you were drinking, if you exchanged emails with the accused etc. There is no way to argue consent.

I'm pretty sure opposing counsel actually would ask about whether you had a prior relationship with the accused, they certainly would ask if you were drinking, and they would try to establish that you did something to provoke the stabbing or were otherwise at fault. So I don't see this as a fundamental difference. Obviously different surrounding circumstances relating to the victim are relevant owing to the differences between the offences, which may or may not actually be relevant.

[sworkhard]

Originally Posted by OMG!WTF!

You've totally missed the point. If during a drunken night at the bar and your best friend punches you in the face, does it matter that you were friends? And does it matter that you were being a jerk and deserved a punch in the face? Does it matter that you crashed at his house after sharing a cab home? I get that sexual encounters are different but that is exactly why the deck is stacked.

Yes, those things matter. Both to being a jerk and to crashing at his house afterwards. As I said in my previous post, there is more to a court case than determining guilt or if the event happened. Further, suppose you were getting your best fiend drunk, knowing that he tended to get out of control and violent and then chose to egg him on anyhow. That won't change the fact that he assaulted you, but it could very well move the sentence from jail time to probation + community service.