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...
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.
i think you're right and like the suggestion you give. something has to change.
..i like your suggestion as well krop. and look forward to this discussion.
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.
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. Reference.
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.
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.
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.
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.
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...
I saw that myself, earlier. But if it's true that:
... then what's the change we should make?
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?
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.
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.
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.
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.
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.
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.
agree. up hill battle too many man want their right to abuse women up held.
yup. why it comes into play anyway i don't know.
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?
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.
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.
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)
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.
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.
i don't think it should beexcluded so what if the accused has to take the stand, the victim does.
And (to repeat myself): What about banning pre-alleged assault contact and behaviour? What's the difference?
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.