cybercoma Posted February 17, 2016 Report Posted February 17, 2016 Yeah. I didn't want to bring up that example because that was a painfully idiotic comment from that judge and probably deserves its own discussion. It's good fodder to derail this whole thing, but is exactly the kind of example we keep seeing in the courts. People aren't stupid. There's a perception out there that they won't get justice. That's why the numbers show that very few go to the police. Quote
TimG Posted February 17, 2016 Report Posted February 17, 2016 (edited) If rape shield were followed, she couldn't ask about that and it wouldn't be acceptable as evidence the assault did not occur. It's clearly an interpretable grey area that is not followed consistently from judge to judge.No rape shield law should prevent a defendent from talking about things he experienced personally. Rape shield laws exist to prevent the defense from using a woman's relationships with other people to undermine her credibility. Edited February 17, 2016 by TimG Quote
On Guard for Thee Posted February 17, 2016 Report Posted February 17, 2016 No rape shield law should prevent a defendent from talking about things he experienced personally. Rape shield laws exist to prevent the defense from using a woman's relationships with other people to undermine her credibility. The item in question here is not relevant to the assault charge, and it is prejudicial against the complainant. Therefore it contravenes Rape Shield in at least two ways. Quote
Boges Posted February 17, 2016 Report Posted February 17, 2016 (edited) The item in question here is not relevant to the assault charge, and it is prejudicial against the complainant. Therefore it contravenes Rape Shield in at least two ways. We talking about the Ghomeshi case? It's relevant to the credibility of the accuser. Should dishonesty, directly pertaining to the accused, be covered by rape shield laws? Edited February 17, 2016 by Boges Quote
overthere Posted February 17, 2016 Report Posted February 17, 2016 One idea just off the top of my head would be to compel the defense to disclose it's evidence to the crown, as the crown has to do to the defense, per-trial. The burden of proof would still rest with the crown. Sigh. Once again: the defendant in Canada is not required to prove their innocence, They cannot do it in any case, as innocent is not a verdict in Canada. Quote Science too hard for you? Try religion!
overthere Posted February 17, 2016 Report Posted February 17, 2016 We talking about the Ghomeshi case? It's relevant to the credibility of the accuser. Should dishonesty, directly pertaining to the accused, be covered by rape shield laws? Interesting thought: chronic liars and perjurers can still be rape victims. Quote Science too hard for you? Try religion!
On Guard for Thee Posted February 17, 2016 Report Posted February 17, 2016 Sigh. Once again: the defendant in Canada is not required to prove their innocence, They cannot do it in any case, as innocent is not a verdict in Canada. Don't sigh, just read. The burden of proof would still rest with the crown. Quote
Hal 9000 Posted February 17, 2016 Report Posted February 17, 2016 I thought "rape shield" only extended to previous sexual encounters/behaviour, not post sexual behaviour. Quote The trouble with our liberal friends is not that they're ignorant; it's just that they know so much that isn't so. - Ronald Reagan I have said that the Western world is just as violent as the Islamic world - Dialamah Europe seems to excel at fooling people to immigrate there from the ME only to chew them up and spit them back. - Eyeball Unfortunately our policies have contributed to retarding and limiting their (Muslim's) society's natural progression towards the same enlightened state we take for granted. - Eyeball
Hal 9000 Posted February 17, 2016 Report Posted February 17, 2016 I've seen so many definitions of sexual assault lately, that it could be argued that it wasn't sexual assault at all, but just ordinary assault. Quote The trouble with our liberal friends is not that they're ignorant; it's just that they know so much that isn't so. - Ronald Reagan I have said that the Western world is just as violent as the Islamic world - Dialamah Europe seems to excel at fooling people to immigrate there from the ME only to chew them up and spit them back. - Eyeball Unfortunately our policies have contributed to retarding and limiting their (Muslim's) society's natural progression towards the same enlightened state we take for granted. - Eyeball
On Guard for Thee Posted February 17, 2016 Report Posted February 17, 2016 I thought "rape shield" only extended to previous sexual encounters/behaviour, not post sexual behaviour. It must be relevant to an issue at trial. Quote
TimG Posted February 18, 2016 Report Posted February 18, 2016 (edited) The evidence they need to provide is evidence that they did NOT consent. Yes, that's proving a negative.No it is NOT. All they are required to do is show that they communicated their lack of consent through actions or words. What was going on their heads is not the main consideration. That does require any 'proving a negative'. In this case, where Ghomeshi refused to take the stand it should have been easy except they choose to lie to the police about the post encounter actions and by doing so undermined their credibility. Edited February 18, 2016 by TimG Quote
TimG Posted February 18, 2016 Report Posted February 18, 2016 (edited) Ghomeshi didn't deny choking, slapping, and otherwise assaulting these women. Meanwhile,,the defence tried to,show that they wanted it because they stayed in contact or pursued intimate relations with him in the beginning or whatever.One cannot conscent to physical assault in Canada so consent does not matter. http://www.theglobeandmail.com/opinion/the-ghomeshi-question-the-law-and-consent/article21315629/ So, lets assume for a moment that Mr. Ghomeshi’s side of the story is true (no, I am not saying that the women are lying – this is just a thought experiment). Let’s say he engaged in rough sex, very rough sex with consenting partners. According to the law, if it was rough enough to cause bodily harm, then he has still committed assault, regardless of consent. If he did hit, punch, bite or choke them – even if it was consensual – the law would very likely say that he committed assault. Th only argument is the acts did not occur but Ghomeshi did not take to stand to avoid perjury and simply let his lawyers imply that it did not occur. The only argument the lawyers made is the witnesses lied to the police about their behvaoir after the encounter therefore there is doubt about the veracity of their claims. They could really NOT argue that they consented to the abuse because that would not matter under law. Edited February 18, 2016 by TimG Quote
TimG Posted February 18, 2016 Report Posted February 18, 2016 (edited) It must be relevant to an issue at trial.It was. It showed they were willing to lie to police. That makes it very relevant. Edited February 18, 2016 by TimG Quote
cybercoma Posted February 18, 2016 Report Posted February 18, 2016 No it is NOT. All they are required to do is show that they communicated their lack of consent through actions or words. That does require any 'proving a negative'. In this case, where Ghomeshi refused to take the stand it should have been easy except they choose to lie to the police about the post encounter actions and by doing so undermined their credibility.That's it. All they have to prove is that something didn't happen. That something being consenting. That's also called proving a negative, no matter how many times you say it isn't. Quote
TimG Posted February 18, 2016 Report Posted February 18, 2016 That's it. All they have to prove is that something didn't happen.They have to prove that something DID happen: they communicated their lack of consent with words and action. That does not require them to prove a negative. Quote
cybercoma Posted February 18, 2016 Report Posted February 18, 2016 Tim's post is a perfect example of the problem with consent. He implies that it is always given and that it needs to be actively withdrawn. The responsibility is therefore on the victims to withdraw consent when it should be on the perpetrators to get consent. This foundation of this argument is a belief that consent is always given. Sex is for the taking and it's up to the victim to show they fought enough for it to be sexual assault. This is like saying if you didn't adequately fight back when someone attacked you in the street then you obviously must have wanted to give them your wallet. Quote
Guest Posted February 18, 2016 Report Posted February 18, 2016 It's not up to someone to fight, but it is up to someone to show there is no consent. Because consent, in the real world (not Student's Unions) is given or withheld during the premilinaries of the act. Quote
TimG Posted February 18, 2016 Report Posted February 18, 2016 (edited) Tim's post is a perfect example of the problem with consent. He implies that it is always given and that it needs to be actively withdrawn.Saying 'No' or physically trying to push someone away is not difficult. If someone does not do that then they created a problem for themselves. The alternative is simply absurd: requiring the accused to prove consent. That is basically saying accused rapists are guilty until proven innocent. No justice system worthy of the name can entertain such a notion. People have to take responsibility for themselves. If they are in a situation where they don't want to be they should leave. If they are prevented or threatened with violence then that becomes the evidence they need to establish rape. Edited February 18, 2016 by TimG Quote
cybercoma Posted February 18, 2016 Report Posted February 18, 2016 And if it's required for consent to be withdrawn, then it's not required for consent to be given. The assumption is therefore that there's always consent unless a victim can prove she withdrew it. How exactly do you prove that? Her: I did not consent to having my ribs broken or being choked unconscious. Him: She did so. She was totally into it. Quote
cybercoma Posted February 18, 2016 Report Posted February 18, 2016 Tim, how is proving that consent existed any more absurd than proving that there was no consent? Said differently, how is it absurd to prove that God exists, but not absurd to prove that God doesn't exist. You can't prove a negative. Full stop. That's the problem with consent being the defining factor in sexual assault cases. The witness has to prove that God doesn't exist. Quote
cybercoma Posted February 18, 2016 Report Posted February 18, 2016 If they are in a situation where they don't want to be they should leave. If they are prevented or threatened with violence then that becomes the evidence they need to establish rape.You know one of the charges is choking to overcome resistance, yeah? Quote
TimG Posted February 18, 2016 Report Posted February 18, 2016 (edited) And if it's required for consent to be withdrawn, then it's not required for consent to be given. The assumption is therefore that there's always consent unless a victim can prove she withdrew it. How exactly do you prove that?Any action that indicates lack of consent. Saying "No" works very well. Body language works too if making noise is a problem. If the lack of consent was not communicated immediately then the presumption of consent is reasonable. Her: I did not consent to having my ribs broken or being choked unconscious. Him: She did so. She was totally into it.Irrelevant strawmman. Read post #1087. Edited February 18, 2016 by TimG Quote
TimG Posted February 18, 2016 Report Posted February 18, 2016 (edited) You know one of the charges is choking to overcome resistance, yeah?Exactly, which means concent is irrelevant in this case. The only question is whether it happened. The only reason Ghomeshi might get off is because the witnesses lied to police and raised doubt about their story. Edited February 18, 2016 by TimG Quote
overthere Posted February 18, 2016 Report Posted February 18, 2016 Exactly, which means concent is irrelevant in this case. The only question is whether it happened. The only reason Ghomeshi might get off is because the witnesses lied to police and raised doubt about their story. The bigger problem for the Crown is that there is no corroborating evidence to the testimony given, or if there is it did not surface in court. The statement from a friend of the 3rd complainant might not matter at all, given the information that came out about communication between the complainants. Usually there are doctors, nurses, cops who testify to what they saw in regard to injuries. Quote Science too hard for you? Try religion!
Argus Posted February 18, 2016 Report Posted February 18, 2016 I wonder where the hell you came up with that idea. However you do seem to like wild assumptions. Would you care to try to back this one up? Maybe if you read the cites I posted you'd wonder less. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
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