Thursday, 24 March 2016

An element of flawed arguments

Some have been saying that the crown failed in properly preparing the victims, however I believe the crown failed from the foundation of their argument. In closing arguments the prosecutor stated “To prove that an offense occurred, the Crown must prove that there was: "Touching, the sexual nature of the conduct and the absence of consent."”

From the start of the argument the focus is wrong.

“Section 273.2 limits the scope of the defense of honest belief in consent to sexual activity by providing that the defense is not available where the accused's belief arose from the accused's self-induced intoxication, or where the accused's belief arose from the accused's recklessness or willful blindness or where the accused failed to take reasonable steps to ascertain whether the complainant was consenting.”[1]

The law states that someone must take reasonable steps to ascertain consent. In the trial there appeared to be almost no discussion about what Ghomeshi did to determine consent. The women were discredited primarily over reluctance/forgetting to disclose post-assault interactions. In closing arguments, the defense was tweeted as saying, “that the witness told police Ghomeshi used one hand when choking her, yet in court said that he used two hands.” Does whether someone used one or two hands choking them change the fact that they were choked? This judge seems to have an unrealistically high standard for memory recall.

The primary focus was not on what steps Ghomeshi took to determine consent. It’s possible that due to positive post-assault interactions he believed that the women did in fact consent, but the legal issue should ultimately be about Ghomeshi’s behaviour and what he did or didn’t do to determine consent.

The reason that this distinction is important is because you can’t prove the absence of consent. The crown also pointed out that there's no need to call an expert witness to explain why some women disclose alleged assaults many years later, because case law already recognizes that trauma can affect someone's actions. However, it would have been beneficial if they had an expert on traumatic memories talk about how memories are encoded and recalled.

There’s no tangible or measurable way to prove what someone felt internally, even the judge acknowledged that genuine victims are known for having odd behaviour (point 135 of his verdict). However in point 136 he states, “Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him.” This is the exact behaviour that the prosecutor stated is normal for victims. It shows that the prosecutor should have called an expert to explain their behaviour and reluctance in bring it forward. The prosecutor should appeal based on bias by the judge.

Food for thought: The judge pointed to the fact that the accused does not need to give a defense for his behaviour. However, maybe we must implement the Cosby approach to sue abusers in civil court in order to force them into giving answer about seeking consent, exposing them to the same questioning and memory recall that is required of victims. And then after the evidence is out in the open, then proceed to criminal trial. This would take the focus off of victim reactions and place it on the behaviour of the one that did the harm. My husband stated that if Ghomeshi were truly innocent then on hearing this verdict he would sue the women for defamation and sue his former employer for his dismissal. I highly doubt that he would want to bring out any evidence that would come out if he attempted that.


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