Sexual Assault & Sexual Misconduct in the CF

[TCM621]

Can we even victim blame until we have established that said person is in fact a victim? If we hold to the standard that everyone is innocent until proven guilty, doesn't it follow that the crime wasn't committed until the crime was proven to be committed? If they defendant is found not guilty,  they could in fact be the victim of slander and libel. A vigorous cross examination is often the only way to find out if they "victim" is truly a victim.

As a society we seem to have have pushed aside the rights of people who we don't like. The problem is what happens when you are falsely accused? Unless you are willing to go to prison and be known as a sex offender for the rest of your life in order to spare the psyche of the alleged victim,  you are being a hypocrite.

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[brihard]

I don't envy anyone who has to try and come up with a solution to dealing with sexual assaults from a judicial branch point of view. At the end of the day, the presumption of innocence is absolutely paramount and cannot in any way be compromised. The unfortunate part of this means that, essentially, the alleged victim *is* put on a trial... and I am not sure there is any other way to deal with it.

This is an excellent interview with a woman I admire. Marie Henein was Jian Gomeshi's lawyer. She came under a lot of fire from women and more recently had university students protesting having her speak at their university (this is a whole other rant). She shares her perspective here and thankfully has already organized all of these thoughts long before this interview and is well-spoken about them so that she exposes Peter Mansbridge's idiocy.

https://www.youtube.com/watch?v=1XB5fG7gbZ0

It is a shitty reality, however, that the victims cannot get justice without being subject to this. I can only think of a few small ideas to help them but in the end, it would never enough.

Agreed. One of the best things that can be done for victims in these cases is as thorough and complete an investigation as possible, to increase the chance of a guilty plea and being spared a trial. A guilty plea before trial will often be a mitigating factor in sentencing. However, at the end of the day, if the accused decides they're going to fight the charge, ultimately all of the facts must be tried, and that includes the victim being subject to cross examination from defense. I wish there was a better way, but there isn't.

Can we even victim blame until we have established that said person is in fact a victim? If we hold to the standard that everyone is innocent until proven guilty, doesn't it follow that the crime wasn't committed until the crime was proven to be committed? If they defendant is found not guilty,  they could in fact be the victim of slander and libel. A vigorous cross examination is often the only way to find out if they "victim" is truly a victim.

As a society we seem to have have pushed aside the rights of people who we don't like. The problem is what happens when you are falsely accused? Unless you are willing to go to prison and be known as a sex offender for the rest of your life in order to spare the psyche of the alleged victim,  you are being a hypocrite.

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The lack of conviction does not mean the victim was not a victim. The inability to achieve a conviction on a criminal offense does not mean the act of victimization did not take place, it merely means that the crown is unable to establish the elements of the offense beyond a reasonable doubt. It may mean that the act failed to meet the criminal threshold for the offense charged (e.g., harassment is often not a criminal offense), and in many cases it can simply be very hard to get a conviction because of he said/she said. Remember that the threshold for criminal conviction is well beyond balance of probabilities. To claim that a crime wasn't committed until a conviction is achieved is patently absurd.

 

[armyvern]

Can we even victim blame until we have established that said person is in fact a victim? If we hold to the standard that everyone is innocent until proven guilty, doesn't it follow that the crime wasn't committed until the crime was proven to be committed? If they defendant is found not guilty,  they could in fact be the victim of slander and libel. A vigorous cross examination is often the only way to find out if they "victim" is truly a victim.

As a society we seem to have have pushed aside the rights of people who we don't like. The problem is what happens when you are falsely accused? Unless you are willing to go to prison and be known as a sex offender for the rest of your life in order to spare the psyche of the alleged victim,  you are being a hypocrite.

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There's absolutely nothing wrong with cross examination.

There IS something wrong with cross examination that asks, "what were you wearing a mini-skirt for?"  "How many men have you slept with this month"?  That shit has nothing to do with whether or not a person was sexually assaulted by another person on the actual date of the allegation.

THAT kind of shit happens all too often and it is victim-blaming ... IE:  putting the victim on trial rather than the accused.

 

[FJAG]

Have you been a witness, victim or assisting officer type person at a sexual harassment or assault trial?

During the early part of my legal career I practised a broader range of law then I finally settled into. It included criminal and family law and I was involved in acting on a half dozen cases involving sexual assault (three of them children).

Our type of legal system is called an "adversarial process" where, in effect, two or more parties on opposing sides of the issue are involved with both presenting evidence favourable to their side and tearing down the evidence which is unfavourable (usually through cross examining the other sides witnesses or presenting witnesses that contradict the other sides evidence)

The code of ethics of the legal profession requires both a high level of decorum while also requiring that lawyers represent their clients' interests zealously. That obviously leads to circumstances that, to put it politely, will leave a witness in some discomfort, especially if they are a complainant in a sexual assault case. It is a judge's role to balance the truth finding process against an unnecessary and unfair challenge of a witness.

As I mentioned above, the greatest issue with many sexual assault cases is that the sexual act involved could be interpreted as either a consensual (and therefore legal) one or a nonconsensual (and therefore criminal) one. Rigorous cross examinations are often needed to explore the facts presented. This rarely leaves a witness feeling warm and fuzzy about his/her experience in the majority of cases.

All too often criminal defence lawyers become over-zealous in their role (which is one of the reasons I stopped doing criminal law -- I simply couldn't crank up that "last lone knight fighting against the might of the prosecution" attitude) This is where the judge has to step in and keep order. Again, it's a difficult balancing act. On the one hand a witness may be being treated unfairly while on the other an innocent man's ability to raise a reasonable doubt about the crime is being curtailed.

It's long been a legal mantra that "it's better that a hundred guilty men be set free than one innocent man be jailed". To some extent we are leaving that principle behind in sexual assault cases where the mood in the press and in certain quarters of our society seems to be: "where there's smoke there's fire--hang him high".

This is why I don't jump on the band wagon of those who are quick to be outraged by what they read in the press.

:subbies:

 

[Jarnhamar]

There's absolutely nothing wrong with cross examination.

There IS something wrong with cross examination that asks, "what were you wearing a mini-skirt for?"  "How many men have you slept with this month"?  That shit has nothing to do with whether or not a person was sexually assaulted by another person on the actual date of the allegation.

THAT kind of shit happens all too often and it is victim-blaming ... IE:  putting the victim on trial rather than the accused.

Thanks ArmyVern. That's what I was trying to articulate.  In my admitted very uninformed opinion I don't see what the colour of a girls underwear was the first time she had sex 15 years ago has to do with her being raped. I get the innocent until proven guilty for the but it seems like in all too many cases we see publicized it appears the defense is being overzealous and basically suggest the woman was "a slut" rather than attacked. 

FJAG thanks for taking the time to post that.

Ballz I remember that case and how the woman was attacked by other women for "being a traitor", sell out, rapist enabler bla bla. That was an interesting case too.

 

[beachdown]

Wrong....check my posts if you are going to make a comment like this 

  I understand this topic is close to you (it is the only topic you've posted in on this site since joining).

 

[mariomike]

Wrong....check my posts if you are going to make a comment like this 

16/17 in this thread.

 

[George Wallace]

16/17 in this thread.

I checked as well, earlier today.  One (1) post in a thread, while ALL the rest of your posts are in this particular thread does not belie the fact that you are posting primarily in this thread since you started posting on 29 November; five (5) days ago.

 

[daftandbarmy]

Thanks ArmyVern. That's what I was trying to articulate.  In my admitted very uninformed opinion I don't see what the colour of a girls underwear was the first time she had sex 15 years ago has to do with her being raped. I get the innocent until proven guilty for the but it seems like in all too many cases we see publicized it appears the defense is being overzealous and basically suggest the woman was "a slut" rather than attacked. 

FJAG thanks for taking the time to post that.

Ballz I remember that case and how the woman was attacked by other women for "being a traitor", sell out, rapist enabler bla bla. That was an interesting case too.

About as interesting as these four Alberta judges, FFS: http://www.cbc.ca/news/canada/calgary/alberta-judges-sex-assault-trials-myths-1.3765959

 

[beachdown]

Ack. But the previous poster said "all" my posts have been in this thread. What has this got to do with the subject at hand anyway??????

I checked as well, earlier today.  One (1) post in a thread, while ALL the rest of your posts are in this particular thread does not belie the fact that you are posting primarily in this thread since you started posting on 29 November; five (5) days ago.

 

[George Wallace]

[

Ack. But the previous poster said "all" my posts have been in this thread. What has this got to do with the subject at hand anyway??????

It has as much to do with this thread as your focusing on that comment and saying that it was not true, when basically it is true. 

So....It has NOTHING to do with this topic, as did your comment(s) questioning your posts.

Wrong....check my posts if you are going to make a comment like this 

That was your reply to this:

I understand this topic is close to you (it is the only topic you've posted in on this site since joining).

 

[Jarnhamar]

Ack. But the previous poster said "all" my posts have been in this thread. What has this got to do with the subject at hand anyway??????

All of your posts (save a generic one) have been in this thread.
You've said you have been a witness and victim in harassment and assault cases both in the military and civi side.
It looked like ArmyVern was being cordial and taking your feelings/situation/past into consideration when she posted.
Your reply came across as condescending, the spirit of what ArmyVern was saying was accurate.

 

[armyvern]

Wrong....check my posts if you are going to make a comment like this 

Well, look at you sneaking in last night and making one in another thread. 

And, all it has to do with the subject at hand is that someone asked you what your experience with this was ... and I was just pointing out that it is obviously a subject close to you ... as indicated by your posting history and high interest in this one (I see you're up to two posts in the Africa thread now).  Sit back, relax, and welcome to the site.

 

[mariomike]

OMG I just awarded ArmyVern +2,400 MilPoints! 

 

[armyvern]

OMG I just awarded ArmyVern +2,400 MilPoints! 

I just reported it to mod as something is definitely glitching.  I just tried to award points to someone by changing the "quantity" of points and the numbers default for me, so I think it's just you!!  My profile isn't allowing it.

 

[TCM621]

There's absolutely nothing wrong with cross examination.

There IS something wrong with cross examination that asks, "what were you wearing a mini-skirt for?"  "How many men have you slept with this month"?  That crap has nothing to do with whether or not a person was sexually assaulted by another person on the actual date of the allegation.

THAT kind of crap happens all too often and it is victim-blaming ... IE:  putting the victim on trial rather than the accused.

Absolutely but it can be a fine line. Sexual assault trials are probably the most difficult of all criminal trials because judges and lawyers have to balance the rights of someone who may have been assaulted and the rights if someone who could have their life ruined.  It is worse than a normal case because their is quite often nothing to go one but two peoples words and a wrong decision could destroy some ones life for ever. I don't envy judges.

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[armyvern]

Absolutely but it can be a fine line. Sexual assault trials are probably the most difficult of all criminal trials because judges and lawyers have to balance the rights of someone who may have been assaulted and the rights if someone who could have their life ruined.  It is worse than a normal case because their is quite often nothing to go one but two peoples words and a wrong decision could destroy some ones life for ever. I don't envy judges.

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I'd agree with what you've stated however I will stand firm on my points that her/his (victim) prior sexual histories, how they were dressed, etc have absolutely ZERO to do with whether or not they were sexually assaulted or not.  TOO much of that crap happening.

I've been known to wear mini-skirts, although not lately  :blotto:, and I'm not quite a virgin.  All of which has SFA to do with whether or not a power and control freak would be guilty of sexually assaulting me at some point in the future - whether it be tonight or next year.  That kind of crap should be a firm no-go area for cross examination (and it is supposed to be no-go) - it simply is not relevant.

Kind of like the judge's statement in the case linked in here from Alberta - "Why didn't you keep your knees together?". WTactualF. 

 

[daftandbarmy]

OMG I just awarded ArmyVern +2,400 MilPoints! 

Two words: Not. Enough.

 

[Eagle_Eye_View]

New CFCWO video came out today talking about SH where he takes this issue very seriously. As mentioned in the video, this will become his personal mission to eradicate this harmful behavior and hopefully pave the way ahead for futur generations. 

http://forces.gc.ca/en/news/article.page?doc=ted-talk-with-chief-warrant-officer-kevin-west%2Fiw7nqn47

 

[George Wallace]

New CFCWO video came out today talking about SA where he takes this issue very seriously. As mentioned in the video, this will become his personal mission to eradicate this harmful behavior and hopefully pave the way ahead for futur generations. 

http://forces.gc.ca/en/news/article.page?doc=ted-talk-with-chief-warrant-officer-kevin-west%2Fiw7nqn47

Devil's Advocate:  This is all fine and good, but unless all of Canadian society has eradicated this harmful behavior, the problem will persist with every intake of new recruits.