Bill c51 just passed in Canada, no videos, texts or proof of consent can be offered in a sexual assault case, without first offering to the prosecution prior to trail.

tomspolitics · 2018-12-17T14:41:22+00:00

So essentially you are fucked...

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Actually, I was told last year by a lawyer in Oregon that it depends on the state. In some states, disclosure goes both ways, apparently. I asked him what kind of dog and pony show are they running in these particular states???

On the other hand, prosecutors are not counsel for the plaintiff--they represent the people, not the complaining witness. They're not allowed to prep witnesses other than in terms of explaining court procedure and general advice (to keep answers short, for instance), or to disclose any evidence to the complaining witness that might taint their testimony.

So even if the prosecutor knows the defence's evidence and strategy, they are barred from disclosing any of it to the complainant. If they are found to have done that, they can be disciplined for misconduct, or even find themselves on the witness stand at their own trial or have the entire case thrown out.

C-51, if I recall, has a provision that complainants will have a right to counsel, and also a right for themselves or their lawyer to be present at rape shield hearings to review the evidence.

So unless the Senate required amendments to the bill regarding these provisions, it is now written into Canadian law that tainting witness testimony is not only 100% A-okay, but actually mandatory.

To give some context, even at civil trials on matters of less import and gravity than a criminal accusation, witnesses are typically barred from the courtroom until after they have testified, because listening to other witnesses or viewing evidence they have no prior knowledge of, may taint their testimony. Witnesses are barred by the judge from discussing ANY of the evidence presented at trial with each other until after they've all testified.

But here we are in Canada, showing all the relevant defence evidence not only to the Crown prosecutor, but to the complaining witness and/or her lawyer, before the trial even begins, and even though we KNOW witness testimony can be tainted by something like this in cases of breach of contract or robbery or hit and run, we somehow are to believe the testimony of a complaining witness in a sexual assault case is untaintable.

[–]tenchineuro 0 points1 point2 points 7 years ago (19 children) | Copy Link

[–]girlwriteswhat 6 points7 points8 points 7 years ago (18 children) | Copy Link

Not at all. Despite the complaining witness not being a party to the case but rather a witness, and despite the prosecutor not representing her, she will be entitled to separate personal counsel, paid for by the state, leading up to and during the trial.

Any complainant right now has the right to retain counsel to advise them (but not to represent them at trial), at their own expense. This bill opens the door to providing such counsel for complainants at the expense of the taxpayer, and also to giving the complainant and/or her personal counsel official standing in rape shield hearings.

This is a massive departure from a normal criminal proceeding in which a closed door hearing might be held. In such a hearing, any complaining witnesses (any witnesses at all) would be barred from attending so as not to taint their testimony.

Prosecutors are also barred from coaching complainants, but this would not be the case for a complainant's personal counsel.

This bill essentially rewrites centuries of jurisprudence solely for cases of sexual assault.

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Yeah, I hear you. But at this point, I'd almost recommend a trial by judge for any man accused of sexual assault.

By the very judge that Rape Shield Laws make an advocate for the accuser? I think this is the worst possible thing that could be done, it's downright suicidal.

A judge has to at least explain how his decision fits the statute and the reasonable doubt standard.

Have you heard some of the reasons judges have given for their decisions? Especially in the UK when they let women who have grievously harmed men walk, like 'it was out of character for her' or 'she has a bright future'. In the US we don't usually see the text of the judges decisions. but the results are amazingly similar.

A jury can nullify in either direction based entirely on emotion. Sure, the verdict might be overturned for one reason or another, but jurors themselves face no negative personal consequences when they get it wrong.

Jury nullification is a thing (that US courts don't want you to know about), but apparently juries are not buying the woman's stories in rape trials very often, hence the low conviction rate, and that's why UK feminists want to abolish jury trials for men accused of rape.

Edit: Had to leave for a bit.

I was surprised years ago to see a judge overturn a jury verdict, so I did some research, apparently a judge can overturn a guilty verdict, but a judge cannot overturn an acquittal, it takes a mistrial for something like this to happen, so a judge overturning a verdict cannot have negative consequences for the accused. At least as long as I interpreted the rather sparse info I found in the 1990s correctly. The search engines then were not as bad as Archie and Veronica, but they were not a whole lot better either.

[–]girlwriteswhat 2 points3 points4 points 7 years ago (14 children) | Copy Link

Again, judges are required to justify their decisions and demonstrate how those decisions are in compliance with the law. Juries have no such duty.

Jury nullification is a thing (that US courts don't want you to know about), but apparently juries are not buying the woman's stories in rape trials very often, hence the low conviction rate,

In Canada at least, the conviction rate for sexual assault is roughly 60%. That's the percentage of cases brought to trial that end in conviction, which is what the conviction rate measures.

UK feminists are comparing the attrition rate for sexual assault against the conviction rate for other crimes. The public genuinely believes that 60% of general violent felony cases result in conviction, while only 6% of sexual assault cases result in conviction, because that's what feminists are telling them.

Two recent cases in Canada (Gregory Alan Elliott, and Jian Ghomeshi) would have almost certainly resulted in conviction if they'd been tried by jury, because of the general public sentiment as promoted by the media. In another case, Mustafa Uruyar, the judge's decision to convict was loaded with plagiarized content from radical feminist literature, and that decision was overturned by a different judge.

[–]tenchineuro 1 point2 points3 points 7 years ago (13 children) | Copy Link

In Canada at least, the conviction rate for sexual assault is roughly 60%. That's the percentage of cases brought to trial that end in conviction, which is what the conviction rate measures.

I expect that to go up now that they have passed c51.

UK feminists are comparing the attrition rate for sexual assault against the conviction rate for other crimes. The public genuinely believes that 60% of general violent felony cases result in conviction, while only 6% of sexual assault cases result in conviction, because that's what feminists are telling them.

I would assume the difference is 6% of the accusations result in convictions as opposed to the percentage of those who are actually tried for rape.

Two recent cases in Canada (Gregory Alan Elliott, and Jian Ghomeshi) would have almost certainly resulted in conviction if they'd been tried by jury, because of the general public sentiment as promoted by the media.

Speculation is interesting, but it's not hard evidence.

Mustafa Uruyar, the judge's decision to convict was loaded with plagiarized content from radical feminist literature, and that decision was overturned by a different judge.

Is not Canada looking to give judges mandatory training on how to handle rape cases? It had previously been optional. I suspect that even if there were some advantage to being tried by a judge today (and I'm not convinced), that advantage will disappear after mandatory feminist indoctrination.

There's another claim that's fairly often made but for which I've never been able to find supporting evidence, that a man stands a better chance of acquittal if the jury is primarily female. I think #metoo has shown how little empathy women in general have for men accused of sexual crimes, I don't see any reason why they would act differently on a jury.

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It really depends. This bill was introduced in the wake of the Jian Ghomeshi trial.

In that trial, the 3 complaining witnesses ALL testified that after the assault they were so traumatized they had no further contact with him. In one case, the woman went on another date with him (with all the communications involved in arranging that). In another case, the woman pursued him for more than a year afterward with handwritten loveletters, flowers delivered to his house, emails, tagged sexy photos on facebook, texts demanding they hang out together because they'd be in the same city, and even dancing around the "M" word (marriage).

The third complainant's testimony that Ghomeshi was "smitten" with her, and that she was separated from her husband when the assault occurred (on a date with Ghomeshi) was contradicted by her own character witness.

In one case, the complainant said the only reason she trusted Ghomeshi enough to get into his car was because he drove a yellow VW Beetle (no sexual predator would drive a VW Beetle, apparently). He didn't own that car until 7 months after the assault allegedly took place.

And of course, the primary complaining witness colluded with one of the other complainants over hundreds of online chat messages despite having been told by police to not discuss the case with each other, and despite both testifying they had followed that instruction.

So. Here's the thing. The judge in his reasons suggested that everything these witnesses did--including getting key details wrong, colluding with each other, lying to police, concealing evidence, and even lying to the court!--was all consistent with the "known" behavior of actual victims. A real victim might, for instance, in her effort to make sense of a sexual assault, pursue a romantic relationship with her perpetrator. A real victim might, in addition, collude with another victim to try to support each other's allegations in court. A real victim might legitimately misremember, forget or even intentionally conceal or lie about key details of the assault, and even this cannot be considered evidence the assault didn't occur.

Basically, the judge said, "even though these women deceived the court, and even though ALL of their lies and omissions were in the direction of making the defendant look more guilty than he otherwise would, and even though two of them colluded with each other to align the details of their stories, none of this can be considered evidence that they weren't genuine victims of sexual assault. I am acquitting based solely on the fact that their testimony was demonstrated to be unreliable in the face of the physical evidence, and I cannot justify putting someone in prison based on unreliable testimony that is contradicted by that physical evidence."

Under this new law, all of the evidence (other than the car) that Ghomeshi brought forth at trial, evidence that undermined the testimony of the complainants and raised a reasonable doubt because it didn't match what they said? All of that evidence would be disclosed not just to the prosecutor, but to the complainants, prior to trial.

And since even this judge, who rendered a proper verdict, acknowledges that none of their behavior--whether it was colluding with each other, lying on the stand, misremembering key details of their stories, or pursuing further romantic/sexual involvement with Ghomeshi--was evidence that they had NOT been assaulted (because genuine victims behave in mysterious ways, all of which are consistent with having been assaulted), they would have been tipped off to defence evidence and able to adjust their testimony to conform to it.

So basically, even if a judge allowed this evidence to be presented at trial, as long as the complainant testified on the stand that, "I'm embarrassed to say that after the assault I kind of shamelessly threw myself at him. But my romantic pursuit of Ghomeshi for more than a year following the assault was me trying to internally repress what had really happened, to turn it into something other than what it was because that might help me avoid having to deal with the full impact of the trauma. And even when I reported to police, it was hard for me to acknowledge to them my confusion and I honestly thought that if I'd told them about my behavior over that year they wouldn't believe I'd been assaulted, so I just didn't tell them about it..." ...well... that's ALL consistent with sexual assault, according to this judge.

Why would this judge throw out the case after seeing that evidence? Why would a prosecutor drop a case after seeing that evidence? No matter what the evidence is, it's consistent with sexual assault.

There's a reason Marie Henein, one of Canada's most prominent criminal defence attorneys, chose not to go the route of showing the prosecutor or judge this evidence prior to trial in hope of getting the case dismissed or the charges dropped.

She didn't do it because a narrative has taken hold in our legal establishment, including judges, that there is no way a sexual assault complainant can behave that is not consistent with them having been sexually assaulted.

The Canadian Judicial Council offers voluntary training to judges on "rape myths" and the proper and sensitive adjudication of sexual assault trials. A few years ago, a defence lawyer in my home town of Edmonton requested an injunction from the courts to require the CJC to disclose to him the contents of those training materials so he could ensure the training wouldn't prejudice a judge against his client. The judge who decided that matter basically ruled that since this lawyer couldn't prove the materials were prejudicial against his client there was no reason to order the CJC to disclose them.

I kid you not. The lawyer said, "I want to see what's in this box so I can determine if it's dangerous," and the judge said, "you haven't proved that what's in the box is dangerous, so I'm not going to let you see it."

Bill C-337 (still stalled in the Senate) would make this training mandatory for all candidates for the bench, and we Canadians (including lawyers) apparently have no right to know what the training is and who is developing and administering it.

As for bill C-51 (now law), the stated purpose of it, as published on our DOJ website, is to close off as many avenues to an affirmative defence for the defendant as possible. It considers communications of a sexual nature (however transmitted) to be part of a complainant's sexual history and subject to rape shield tests. It instantiates an affirmative consent standard wherein the affirmative defence of an "innocent but mistaken belief in consent" is no longer legally available to defendants, and it also criminalizes any form of sexual touching when a complainant is unconscious, even if consented to (or requested!) in advance (everything from kinksters who like choking games to kissing your wife awake in the morning).

That third change is an instantiation of a Supreme Court precedent based on an acknowledged false accusation. The complainant brought the charge in a custody dispute, and the SCC decided that her "yes in fact" constituted a "no in law".

We are moving toward sexual assault being a strict liability offence in Canada, and where, in the words of Alan Dershowitz, rape is considered such a heinous crime that not even innocence is an adequate defence.

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