Rethinking sexual assault laws in Canada

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kropotkin1951 kropotkin1951's picture
Rethinking sexual assault laws in Canada

We suggest an alternate system that will feel restorative for victims. The adversarial system doesn't allow for victims to heal. Survivors must be empowered to participate fully, on terms equal (but not necessarily identical) to those upon which accused persons participate in our justice system. For example, accused persons are entitled to vigorous legal representation. A sexual-assault complainant should be guaranteed the same representation and protection. But currently, if the victim shows up with her own lawyer, the response of the system is suspicious and even overtly hostile. Crown attorneys will not openly share witness statements with the counsel representing the complainant.

Complainants must be offered a real choice about what sorts of justice services are available to them. While some wish to pursue traditional criminal prosecution, others may prefer to have the state carry forward a civil suit only. Other survivors may prefer a more restorative approach. Truth-and-reconciliation processes have played a positive role in addressing historical victimization on a broader, societal scale (for example, in South Africa and here in Canada). There is no reason we cannot thoughtfully adopt similar practices for individuals.

http://crcvc.ca/wp-content/uploads/2016/04/PM-re-sexual-assault_April201...

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kropotkin1951 kropotkin1951's picture

I am really tired of the debate in the other thread so I am opening a new thread that is not focused on any individual case but instead is a debate about how to move forward. I think that all progressive people will agree that the system is broken the only question is how to change it.

I think this piece that Unionist posted is a good start. I personally think that rape culture is so embedded in our culture that it might require its own specialized Tribunal similar to a Human Rights Tribunal where a person who asserts that they have been sexually assaulted can go to. Like a Human Rights Tribunal the first job would be to winnow out the few cases that are clearly fraudulent and then the rest of the claimants would be provided with the legal supports required to seek justice.

quizzical

i think you're right  and like the suggestion you give. something has to change.

epaulo13 epaulo13's picture

..i like your suggestion as well krop. and look forward to this discussion.

Left Turn

I'm by no means a legal expert on this matter, but based on recent events I'd suggest way may need to change the legal definition of "sexual assault" (and "physical assault" within the context of a relationship) to lower the level of violence a person can get away with (once it's reported prosecuted) because there "might" have been consent.

Other changes are also worhty of serious consideration.

Unionist

Left Turn wrote:

I'm by no means a legal expert on this matter, but based on recent events I'd suggest way may need to change the legal definition of "sexual assault" (and "physical assault" within the context of a relationship) to lower the level of violence a person can get away with (once it's reported prosecuted) because there "might" have been consent.

Not sure what you mean by "recent events". In the Ghomeshi trial, the issue of consent never arose.

And the Criminal Code right now doesn't require any particular "level of violence" to be guilty of assault, let alone sexual assault. Any use of force - even threatening the use of force - constitutes assault. [url=http://laws-lois.justice.gc.ca/eng/acts/C-46/page-61.html#docCont]Refere...

What's being suggested here is twofold, I think: 1) If the proceedings are criminal, complainants should enjoy their own independent standing before the court and be provided with legal representation which is just as "vigorous" as that available to the accused; OR 2) complainants should have easy, optional, affordable access to alternate forms of proceedings, where the burden of proof is not as onerous as the criminal burden, and where the aim isn't necessarily to lock up the perp, but to achieve restorative justice, or reconciliation, or a civil suit.

Mr. Magoo

I suggested this in the other thread, but I'll toss it in here too:  one thing we could very easily do, and that might change some outcomes, would be to provide thorough legal support to complainants before they make a statement to the police.  This need not be "legal representation", but rather an off-the-record client-centred discussion of how that statement will be made, how it will be used, what does or doesn't need to be said, the rights of the complainant, the process by which a statement can be revised, and so on.

It wouldn't fix everything, but it also wouldn't require an amendment to the Criminal Code, just a change to the administration of it.  It could be done in conjunction with other initiatives, and it's both "do-able" and measurable.

Seemed to me that in a certain recent case, statements given to the police ended up forming the bulk of the defence's case, at least in part because the complainants didn't know the importance that would be given to their statements later, nor understand what would be found important and what would not.

pookie

The human rights model would be interesting.  The state has carriage but complainants could easily be granted standing.  

A core principle of human rights, though, is that it is remedial and not punitive, so there might a be a limit to the kinds of assaults that could be pursued there.  

Another thing to think about is how to balance state and individual interests, if the state is to retain control and be responsible for the costs.

kropotkin1951 kropotkin1951's picture

I think given the short sentences that are the norm even when a conviction can be obtained it is a fools game to go to a criminal court. I would like to see one of the things that is possible out of an alternative forum is placement on the sex offenders registry.  That in itself might eventually begin to change the culture of entitlement that has led to our rape culture.

Having practiced human rights law I know that many times the thing a company fears the most is the major damage to reputation that a finding of discrimination brings to a company.  We need a change and the sooner people start thinking about alternatives and demanding that change the better.

Mr. Magoo

Under what conditions do sex offenders currently get added to the registry, or not added to the registry?

kropotkin1951 kropotkin1951's picture

Mr. Magoo wrote:

Under what conditions do sex offenders currently get added to the registry, or not added to the registry?

https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/protctn-gnst-hgh-r...

Mr. Magoo

I saw that myself, earlier.  But if it's true that:

Quote:
All convicted sex offenders are now automatically included in the Registry.

... then what's the change we should make?

Paladin1

Mr. Magoo wrote:

I suggested this in the other thread, but I'll toss it in here too:  one thing we could very easily do, and that might change some outcomes, would be to provide thorough legal support to complainants before they make a statement to the police.  This need not be "legal representation", but rather an off-the-record client-centred discussion of how that statement will be made, how it will be used, what does or doesn't need to be said, the rights of the complainant, the process by which a statement can be revised, and so on.

 

That's an interesting idea. I believe we're at a point where we basically need to hire a lawyer before speaking to the police.  Many examples of people trying to be helpful or just tell the police what happened ending up getting charged or in shit somehow themselves. 

I'm wondering if this would backfire with cases of sexual harassment or assault. We know the primary tactic in these cases is to discredit the victim. From facebook posts to plenty of fish profiles to what kind of porn she watches. We (as a society) tend to shine the spotlight on victims in a negative way.  So would it be easy for a lawyer to take an example of a woman talking to an off the record client centered person and spin it to paint a picture that the victims statements to the police from the start were tailored and cultivated?   I'm not sure if it can be argured that lawyers do the very same thing, when I dealt with a lawyer in an assault case she give me tips for being on the stand but nothing about the information I presented.  Do you know what I mean?

 

 

kropotkin1951 kropotkin1951's picture

The best criminal lawyers I have met have all said the same thing. If accused of a crime never say anything to the police. Having a lawyer involved before you make a complaint against someone else is not normal but I don't think it could be considered as untoward by a Judge.

kropotkin1951 kropotkin1951's picture

Paladin1 wrote:

So would it be easy for a lawyer to take an example of a woman talking to an off the record client centered person and spin it to paint a picture that the victims statements to the police from the start were tailored and cultivated?   I'm not sure if it can be argured that lawyers do the very same thing, when I dealt with a lawyer in an assault case she give me tips for being on the stand but nothing about the information I presented.  Do you know what I mean?

In BC the Code of Professional Conduct covers that situation and any lawyer who tried to infer that another lawyer had done such a thing would require proof or they would be sanctioned themselves. I am sure the rules are very similar for every province.

Quote:

1. To the state

(1) A lawyer owes a duty to the state, to maintain its integrity and its law. A lawyer should not aid, counsel, or assist any person to act in any way contrary to the law.

2. To courts and tribunals

(3) A lawyer should not attempt to deceive a court or tribunal by offering false evidence or by misstating facts or law and should not, either in argument to the judge or in address to the jury, assert a personal belief in an accused's guilt or innocence, in the justice or merits of the client's cause or in the evidence tendered before the court.

4. To other lawyers

(1) A lawyer's conduct toward other lawyers should be characterized by courtesy and good faith. Any ill feeling that may exist between clients or lawyers, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. Personal remarks or references between lawyers should be scrupulously avoided, as should quarrels between lawyers which cause delay and promote unseemly wrangling.

 

Mr. Magoo

Quote:
So would it be easy for a lawyer to take an example of a woman talking to an off the record client centered person and spin it to paint a picture that the victims statements to the police from the start were tailored and cultivated?

Well, for starters, this wouldn't really stand out if it were standard procedure.

And of course the guidance provided would need to be as generic as possible.  I'm not suggesting that any complainant should be coached to say that she didn't see what she saw.  Just some friendly advice as to what it might mean if you claim with certainty that the defendant wore a grey hat but material evidence later shows it was dull green.  Knowing that it's permissible to not remember exactly, other than "I think it was a drab colour" could go a long way.

Left Turn

Unionist wrote:

Left Turn wrote:

I'm by no means a legal expert on this matter, but based on recent events I'd suggest way may need to change the legal definition of "sexual assault" (and "physical assault" within the context of a relationship) to lower the level of violence a person can get away with (once it's reported prosecuted) because there "might" have been consent.

Not sure what you mean by "recent events". In the Ghomeshi trial, the issue of consent never arose.

And the Criminal Code right now doesn't require any particular "level of violence" to be guilty of assault, let alone sexual assault. Any use of force - even threatening the use of force - constitutes assault. [url=http://laws-lois.justice.gc.ca/eng/acts/C-46/page-61.html#docCont]Refere...

What's being suggested here is twofold, I think: 1) If the proceedings are criminal, complainants should enjoy their own independent standing before the court and be provided with legal representation which is just as "vigorous" as that available to the accused; OR 2) complainants should have easy, optional, affordable access to alternate forms of proceedings, where the burden of proof is not as onerous as the criminal burden, and where the aim isn't necessarily to lock up the perp, but to achieve restorative justice, or reconciliation, or a civil suit.

In the Ghomeshi verdict, the judge claimed that because the witnesses had lied about their contact with Ghomeshi after the fact, that their testimony is not credible. This can be interpreted to mean one of two things:

1) The judge thinks the women might have lied about what Ghomeshi did to them.

2) The judge believes that Ghomeshi did what the women said he did, but because of the continued contact after the fact, he thinks their claim that Ghomeshi's action constituted "assault" are suspect -- ie. he may think the women "consented" to what Ghomeshi did.

Given our misogynistic culture, I wouldn't rule out number 2 being what the judge actually thinks.

In any case, I don't consider the facts that came out in court to justify reaching either of the above conclusions. My point is that we need to change the law to put these types of conclusions outside of the law. I worded my previous post the way I did because I was trying to avoid bringing up the Ghomeshi case in this thread.eing

ETA: To put it another way, I think that trhe threshold at which the level of doubt goes beyond reasonable needs to be higher in sexual assault cases than in other cases. High enough that the level of doubt in the Ghomeshi trial would need to be considered reasonable.

brookmere

Left Turn wrote:
Given our misogynistic culture, I wouldn't rule out number 2 (consent) being what the judge actually thinks.

That is BS. The judge expressly said the reason for the acquittal was lack of credibiity of the witnesses and consequent failure to establish guilt beyond a reasonable doubt. The issue of consent was never raised by any party in the trial. Give it up.

Quote:
ETA: To put it another way, I think that trhe threshold at which the level of doubt goes beyond reasonable needs to be higher in sexual assault cases than in other cases.

Ghomeshi was accused of punching, slapping, choking, and hair pulling. OK, those are nasty things. But if, for example, someone was accused of shooting a woman from a distance, that would not be a sexual assault charge. You think it should be easier to gain an acquittal for the latter?

And further this would provide an incentive for complainants, and the Crown, to escalate charges to sexual assault by introducing a sexual context. For example, if someone received a severe beating, the allegations could include something like bum patting which isn't verifiable by physical evidence.

quizzical

kropotkin1951 wrote:
I think given the short sentences that are the norm even when a conviction can be obtained it is a fools game to go to a criminal court. I would like to see one of the things that is possible out of an alternative forum is placement on the sex offenders registry.  That in itself might eventually begin to change the culture of entitlement that has led to our rape culture.

Having practiced human rights law I know that many times the thing a company fears the most is the major damage to reputation that a finding of discrimination brings to a company.  We need a change and the sooner people start thinking about alternatives and demanding that change the better.

agree. up hill battle too many man want their right to abuse women up held.

Misfit

What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

quizzical

yup. why it comes into play anyway i don't know.

kropotkin1951 kropotkin1951's picture

brookmere wrote:

Ghomeshi was accused of punching, slapping, choking, and hair pulling. OK, those are nasty things. But if, for example, someone was accused of shooting a woman from a distance, that would not be a sexual assault charge. You think it should be easier to gain an acquittal for the latter?

And further this would provide an incentive for complainants, and the Crown, to escalate charges to sexual assault by introducing a sexual context. For example, if someone received a severe beating, the allegations could include something like bum patting which isn't verifiable by physical evidence.

So in this thread about how to change the law to protect women in our rape culture society, do you have anything to say about the subject or are you content the law is good enough as it stands now? Or maybe you think men need more protection from women who make complaints?

Mr. Magoo

Quote:
In any case, I don't consider the facts that came out in court to justify reaching either of the above conclusions. My point is that we need to change the law to put these types of conclusions outside of the law.

Maybe it's just a failure of (my) imagination, but it's hard to picture a functioning justice system in which the judge doesn't have the option of disbelieving a witness.

Quote:
ETA: To put it another way, I think that trhe threshold at which the level of doubt goes beyond reasonable needs to be higher in sexual assault cases than in other cases. High enough that the level of doubt in the Ghomeshi trial would need to be considered reasonable.

This may be the only context in which it seems reasonable to progressives to make very specific changes to the law for the sole purpose of increasing criminal convictions.  I continue to think that ideal justice isn't going to be measured by some "ideal" number of convictions.

pookie

Misfit wrote:
What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

You could do that, but such a broad exclusionary rule would almost certainly have to be extended to the Crown's examination in chief.  So, off limits to everybody.

That could hamper the Crown's case too.

Unionist

pookie wrote:

Misfit wrote:
What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

You could do that, but such a broad exclusionary rule would almost certainly have to be extended to the Crown's examination in chief.  So, off limits to everybody.

That could hamper the Crown's case too.

And why just exclude "post" assault contact and behaviour. Why not exclude all prior contact and behaviour?

I'm not advocating either exclusion. I'm just wondering: What's the conceptual difference?

 

pookie

Unionist wrote:

pookie wrote:

Misfit wrote:
What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

You could do that, but such a broad exclusionary rule would almost certainly have to be extended to the Crown's examination in chief.  So, off limits to everybody.

That could hamper the Crown's case too.

And why just exclude "post" assault contact and behaviour. Why not exclude all prior contact and behaviour?

I'm not advocating either exclusion. I'm just wondering: What's the conceptual difference?

 

If the underlying premise is that, because consent exists at discrete points in time (which is the law and one I whole-heartedly support), then we should simply focus on the alleged event, there is no conceptual difference when it comes to ruling out pre- and post-conduct behaviour.  The accused forming an honest but mistaken belief is different, possibly, but I think we should leave it out of this discussion because, for one thing and as a practical matter, it usually requires the accused to take the stand.

The problem is that deciding whether someone is telling the truth is very difficult to do in a vacuum, and it may not be possible for many triers of fact to reach a conclusion beyond a reasonable doubt if they have no factual context in which to judge the story being told to them.  

(edited)

Left Turn

Misfit wrote:
What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

This is a great suggestion. Rather than forcing the judge to ignore post alleged assault contact and behaviour of the complainant (which was part of my point upthread), ban the defence from bringing it up.

brookmere

If the underlying premise is that, because consent exists at discrete points in time... etc

But the issues of consent, and whether the alleged assault happened at all are distinct.

The Ghomeshi case is really very atypical, in that not only was consent not an issue, there was no allegation that there was non-consensual sex in the first place.

I'm not disagreeing with the poster by the way, just expanding a bit. I think the post was very well put. If no evidence is allowed other than the allegation itself, I think judges or juries would be more reluctant to convict. As as for lowering the standard of guilt beyond a reasonable doubt for one offence, it's not going to happen, and justly so.

 

quizzical

pookie wrote:
Unionist wrote:
pookie wrote:

Misfit wrote:
What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

You could do that, but such a broad exclusionary rule would almost certainly have to be extended to the Crown's examination in chief.  So, off limits to everybody.

That could hamper the Crown's case too.

And why just exclude "post" assault contact and behaviour. Why not exclude all prior contact and behaviour?

I'm not advocating either exclusion. I'm just wondering: What's the conceptual difference?

If the underlying premise is that, because consent exists at discrete points in time (which is the law and one I whole-heartedly support), then we should simply focus on the alleged event, there is no conceptual difference when it comes to ruling out pre- and post-conduct behaviour.  The accused forming an honest but mistaken belief is different, possibly, but I think we should leave it out of this discussion because, for one thing and as a practical matter, it usually requires the accused to take the stand.

The problem is that deciding whether someone is telling the truth is very difficult to do in a vacuum, and it may not be possible for many triers of fact to reach a conclusion beyond a reasonable doubt if they have no factual context in which to judge the story being told to them.

(edited)

i don't think it should beexcluded so what if the accused has to take the stand, the victim does.

Unionist

Left Turn wrote:

Misfit wrote:
What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

This is a great suggestion. Rather than forcing the judge to ignore post alleged assault contact and behaviour of the complainant (which was part of my point upthread), ban the defence from bringing it up.

And (to repeat myself): What about banning pre-alleged assault contact and behaviour? What's the difference?

Left Turn

Mr. Magoo wrote:

Quote:
In any case, I don't consider the facts that came out in court to justify reaching either of the above conclusions. My point is that we need to change the law to put these types of conclusions outside of the law.

Maybe it's just a failure of (my) imagination, but it's hard to picture a functioning justice system in which the judge doesn't have the option of disbelieving a witness.

I'm fine with a judge disbelieving a witness if the defense manages to disprove or raise sufficient doubt about the relevant parts of the witness testimony. If the defense only disproves or raises doubt about irrelevant parts of the testomony, then it's a false leap of logic for the judge to also disbelieve the relevant parts of the testimony. Which is what happened in the Ghomeshi case.

pookie

quizzical wrote:

pookie wrote:
Unionist wrote:
pookie wrote:

Misfit wrote:
What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

You could do that, but such a broad exclusionary rule would almost certainly have to be extended to the Crown's examination in chief.  So, off limits to everybody.

That could hamper the Crown's case too.

And why just exclude "post" assault contact and behaviour. Why not exclude all prior contact and behaviour?

I'm not advocating either exclusion. I'm just wondering: What's the conceptual difference?

If the underlying premise is that, because consent exists at discrete points in time (which is the law and one I whole-heartedly support), then we should simply focus on the alleged event, there is no conceptual difference when it comes to ruling out pre- and post-conduct behaviour.  The accused forming an honest but mistaken belief is different, possibly, but I think we should leave it out of this discussion because, for one thing and as a practical matter, it usually requires the accused to take the stand.

The problem is that deciding whether someone is telling the truth is very difficult to do in a vacuum, and it may not be possible for many triers of fact to reach a conclusion beyond a reasonable doubt if they have no factual context in which to judge the story being told to them.

(edited)

i don't think it should beexcluded so what if the accused has to take the stand, the victim does.

You don't understand the point I was making about that, quizzical.

Left Turn

Unionist wrote:

Left Turn wrote:

Misfit wrote:
What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

This is a great suggestion. Rather than forcing the judge to ignore post alleged assault contact and behaviour of the complainant (which was part of my point upthread), ban the defence from bringing it up.

And (to repeat myself): What about banning pre-alleged assault contact and behaviour? What's the difference?

What Pookie said in post #25.

quizzical

pookie wrote:

quizzical wrote:

pookie wrote:
Unionist wrote:
pookie wrote:

Misfit wrote:
What about legislating another shield in sexual assault cases where the defence is not allowed to introduce post alleged assault contact and behaviour of the complainant with the accused as evidence in cross examining?

You could do that, but such a broad exclusionary rule would almost certainly have to be extended to the Crown's examination in chief.  So, off limits to everybody.

That could hamper the Crown's case too.

And why just exclude "post" assault contact and behaviour. Why not exclude all prior contact and behaviour?

I'm not advocating either exclusion. I'm just wondering: What's the conceptual difference?

If the underlying premise is that, because consent exists at discrete points in time (which is the law and one I whole-heartedly support), then we should simply focus on the alleged event, there is no conceptual difference when it comes to ruling out pre- and post-conduct behaviour.  The accused forming an honest but mistaken belief is different, possibly, but I think we should leave it out of this discussion because, for one thing and as a practical matter, it usually requires the accused to take the stand.

The problem is that deciding whether someone is telling the truth is very difficult to do in a vacuum, and it may not be possible for many triers of fact to reach a conclusion beyond a reasonable doubt if they have no factual context in which to judge the story being told to them.

(edited)

i don't think it should beexcluded so what if the accused has to take the stand, the victim does.

You don't understand the point I was making about that, quizzical.

uh how about detailing better then thank you?

Mr. Magoo

Quote:
I'm fine with a judge disbelieving a witness if the defense manages to disprove or raise sufficient doubt about the relevant parts of the witness testimony. If the defense only disproves or raises doubt about irrelevant parts of the testomony, then it's a false leap of logic for the judge to also disbelieve the relevant parts of the testimony. Which is what happened in the Ghomeshi case.

Okay.  Except that their credibility with regard to the "relevant" details is kind of contingent on their credibility about anything else.

You really expect a judge to say "well, this witness seems to have got everything else wrong somehow, but on the specific matter of the incident itself, I have complete and total confidence in their memory and their willingness to be forthright"?

I'm not suggesting that's not possible.  But in some cases, all the judge has to go on with regard to the actual incident itself is "Yes s/he did" and "No, I didn't".

kropotkin1951 kropotkin1951's picture

quizzical wrote:

i don't think it should be excluded so what if the accused has to take the stand, the victim does.

Quote:

General Principles

The right against self-crimination protects an accused from cooperating in their own conviction and abuse by state power. This right is a principle of fundamental justice under s. 7 of the Charter.

The accused can never be forced to testify in their own trial. If the accused chooses to testify they are protected from having any prior testimony they have given, be it in criminal or civil context, from being used to incriminate them.

https://en.wikibooks.org/wiki/Canadian_Criminal_Evidence/Admissions_and_...

I would like to see a change that required the accused in sexual assault cases to take the stand. I think that while it will likely fail under s. 7 of the Charter it will still be upheld by the SCC under s.1 like many things have such as the Criminal Code prohibition of pot.. Given the personal nature of this offense the accused, if there is enough evidence to go to trial, should be compelled to take the stand and account for his or her actions.

Cody87

brookmere wrote:

If the underlying premise is that, because consent exists at discrete points in time... etc

But the issues of consent, and whether the alleged assault happened at all are distinct.

The Ghomeshi case is really very atypical, in that not only was consent not an issue, there was no allegation that there was non-consensual sex in the first place.

I'm not disagreeing with the poster by the way, just expanding a bit. I think the post was very well put. If no evidence is allowed other than the allegation itself, I think judges or juries would be more reluctant to convict. As as for lowering the standard of guilt beyond a reasonable doubt for one offence, it's not going to happen, and justly so.

 

My suspicion is that consent didn't come up because Heinen (as it turns out, correctly) believed it was not necessary/the strongest defense in this case.

Had Heinen been unable to undermine the credibility of the witnesses, then the consent angle may have been raised instead - and what a mess that would have been.

Unionist

kropotkin1951 wrote:

I would like to see a change that required the accused in sexual assault cases to take the stand. I think that while it will likely fail under s. 7 of the Charter it will still be upheld by the SCC under s.1 like many things have such as the Criminal Code prohibition of pot.. Given the personal nature of this offense the accused, if there is enough evidence to go to trial, should be compelled to take the stand and account for his or her actions.

What about partner abuse that isn't alleged to be sexual? Would you require the accused partner to take the stand?

 

kropotkin1951 kropotkin1951's picture

Unionist wrote:

kropotkin1951 wrote:

I would like to see a change that required the accused in sexual assault cases to take the stand. I think that while it will likely fail under s. 7 of the Charter it will still be upheld by the SCC under s.1 like many things have such as the Criminal Code prohibition of pot.. Given the personal nature of this offense the accused, if there is enough evidence to go to trial, should be compelled to take the stand and account for his or her actions.

What about partner abuse that isn't alleged to be sexual? Would you require the accused partner to take the stand?

Maybe, but I was only thinking about sexual assault not regular assault, domestic or otherwise. I am trying to focus on changes to the sexual assault laws not other parts of the criminal code because that is way to broad a subject for me.

quizzical

i would.

Mr. Magoo

Quote:
Maybe, but I was only thinking about sexual assault not regular assault, domestic or otherwise. I am trying to focus on changes to the sexual assault laws not other parts of the criminal code because that is way to broad a subject for me.

That can fly, with regard to a babble topic, of idle discussion.

But if we decide that in the case of alleged sexual assault, an accused CAN be coerced by the state to incriminate himself, how do you propose to answer, for example, the loved ones of a murder victim who would also very much like to see that accused have to take the stand and incriminate himself?

Surely not by saying that "being murdered is nothing like someone kissing you and then punching you!"

Any thoughts on how to keep this genie in the bottle?  Any thoughts on how to convince the general public that sexual assault trials are so fundamentally different from any and all kind of other trial that they need separate jurisprudence that can only apply to them?

6079_Smith_W

They aren't fundamentally different because there are plenty of cases in which sexist, racist, and other forms of discrimination and stereotyping skew what happens , before and during trial. You don't have to look any further than the numbers of sexual assaults which come to trial, and the rates of incarceration for non-whites.

I don't see any simple change of law as a quick fix. But something preventing the perpetuation of these myths and providing better protection - for victims, witnesses, and accused-- might be a good start. I don't think lowering the burden of proof simply to get a conviction is a good idea.

Unionist

kropotkin1951 wrote:

Maybe, but I was only thinking about sexual assault not regular assault, domestic or otherwise. I am trying to focus on changes to the sexual assault laws not other parts of the criminal code because that is way to broad a subject for me.

Fair enough - but see the following comments by Magoo and Smith. I also see no way of keeping that genie in the bottle. Tweaking the protection against self-incrimination is huge. I was more drawn to the alternate (non-criminal) forms of resolution that are alluded to in your opening post and by the Canadian Resource Centre for Victims of Crime. They propose options - but removing the constitutional protection against self-incrimination isn't one of them. I'm not sure it's a good idea.

Mr. Magoo

...

quizzical

yup lot of work.

easier to just get men to stop violence against women? i doubt it. 

Cody87

quizzical wrote:

yup lot of work.

easier to just get men to stop violence against women? i doubt it. 

Personally, I'd like to get people to stop violence against people.

As this thread shows, one of the biggest issues with any change to how specifically charges of sexual assault against women are handled, is that there are other forms of crime and violence, and those that champion the fight against sexual assault against women tend to completely ignore every other form of crime and violence (whether intentionally or not).

If we are going to change the rules of how one type of crime is handled to a "better way" (however determined), there needs to be a reason why other types of crimes don't also get change to this "better way." If there is no reason why other types of crimes don't also get changed to this "better way," then it needs be understood that those other crimes need also be changed to the better way - and that will only happen if the better way is, in fact, better.

So, I ask you this. What exactly is the point of your post?

It sounds to me like you're trying to shame those who are discussing solutions, and trying to test those solutions for flaws so that those flaws can be fixed or at least adequately addressed when people from other ideological viewpoints inevitably raise them. What is the benefit of shaming people who are trying to find solutions to a problem you want solved?

quizzical

fyi cody it's not my problem how you think you perceive my words.

 

 

Misfit

Cody, this is the feminist forum and the thread title specifically pertains to sexual assault, and NOT violence against people in general. Cut your mysogynistic and sanctimonious crap or get out of the forum!

pookie

kropotkin1951 wrote:

quizzical wrote:

i don't think it should be excluded so what if the accused has to take the stand, the victim does.

Quote:

General Principles

The right against self-crimination protects an accused from cooperating in their own conviction and abuse by state power. This right is a principle of fundamental justice under s. 7 of the Charter.

The accused can never be forced to testify in their own trial. If the accused chooses to testify they are protected from having any prior testimony they have given, be it in criminal or civil context, from being used to incriminate them.

https://en.wikibooks.org/wiki/Canadian_Criminal_Evidence/Admissions_and_...

I would like to see a change that required the accused in sexual assault cases to take the stand. I think that while it will likely fail under s. 7 of the Charter it will still be upheld by the SCC under s.1 like many things have such as the Criminal Code prohibition of pot.. Given the personal nature of this offense the accused, if there is enough evidence to go to trial, should be compelled to take the stand and account for his or her actions.

This is a non-starter.

In the entire Charter era, the Supreme Court has never upheld a violation of section 7 (in the pot case it found that smoking marijuana is not protected under section 7 so there was no need to go to section 1).  I cannot imagine that this would be the case where they would start.  You are talking about the most "fundamental tenet of the criminal justice system" (BC Motor Vehicles).  

If Parl wants to do this it will have to invoke the notwithstanding clause. 

voice of the damned

Here's a question...

Given that, as stated in the OP, these alternate, non-adversarial venues are intended as a response to rape culture, does that mean that they will be restricted to cases in which a male has allegedly assaulted a female? Or will cases with other gender configurations(eg. female assailant, male victim) also be heard in these proceedings?

Devogenes

Cody87 wrote:

Personally, I'd like to get people to stop violence against people.


What's the point of this statement in this context other than to denigrate the feminist perspective?

Do you understand why this and "all lives matter" statements are problematic?

Quote:

As this thread shows, one of the biggest issues with any change to how specifically charges of sexual assault against women are handled, is that there are other forms of crime and violence, and those that champion the fight against sexual assault against women tend to completely ignore every other form of crime and violence (whether intentionally or not).

Dude. This is like saying that everytime you have pancakes for breakfast you're "completely ignoring" the validity of oatmeal.

You can't have everything for breakfast, but there's lots of options. You can have what you want, let other people have what they want. All that matters is that everbody is eating the most important meal of the day. My eating pancakes doesn't interfere with you having your oatmeal.

Get it? It's not the respnsibility of feminists to solve all other problems before or concurrently with the problems specifically facing women.

If you want to make it your projec to end violence against all people, then go ahead. Good luck coming up with an action plan.

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