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The Ghomeshi Case: Is Probability Superior to Certainty?

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posted on Mar, 25 2016 @ 07:15 PM
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Polygraph tests are considered unreliable and unfortunately there is no "DNA test" for truth.

So where do we go in trying cases based on uncorroborated allegations, if we abandon the traditional "adversarial" model of trying sexual assault cases?

I admit that I haven't researched this problem, but as a member of the public with a non specialist's interest in the justice system, I am not aware of any suggested alternatives, coming from the numerous critics of the adversarial system as a means of dealing with sexual assault cases.

So what do we do?

"We believe survivors" simply does not and should not suffice in a court of law to secure a conviction for very obvious reasons. One must remember, as numerous exposés on fake military veterans, on fake 9/11 survivors, on fake Holocaust survivors have shown, there are survivors and there are "survivors".

What differentiates "we believe survivors" from "we believe the accused"?

In the adversarial system, neither the accused, nor the accuser are believed, but there is a presumption of innocence and a requirement to go beyond accusations to the level of "proof beyond a reasonable doubt".

Are critics of the adversarial system arguing for a "presumption of guilt" in sexual assault cases?

That would get us into the Code Napoléon, would it not? Apparently it would not.

en.wikipedia.org...


Indeed, in France, the presumption of innocence is explicitly laid out in constitutional law:

"In France, article 9 of the Declaration of the Rights of Man and of the Citizen 1789, which has force as constitutional law, begins: "Any man being presumed innocent until he has been declared guilty ...". The Code of Criminal Procedure states in its preliminary article that "any person suspected or prosecuted is presumed innocent for as long as their guilt has not been established"" (wikipedia: en.wikipedia.org...)


Or Are they arguing for a lesser standard of proof in sexual assault cases? Are they suggesting that the level of proof in such cases be similar to the level of proof in civil suits?

Judge Horkins referred to standards of proof in his judgment.

www.scribd.com...


[123]
The law recognizes a spectrum of degrees of proof. The police lay charges on the basis of "reasonable grounds to believe" that an offense has been committed. Prosecutions only proceed to trial if the case meets the Crown’s screening standard of there being "a reasonable prospect of conviction".

In civil litigation, a plaintiff need only establish their case on a "balance of probabilities”.

However to support a conviction in a criminal case, the strength of evidence must go much farther and establish the Crown’s case to a point of proof beyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charge.


It seems to me that if the standard of proof were to be lowered in sexual assault cases, then the standard of punishment for the offenses must also be lowered.

It is a sad fact, but anyone who has been accused of a crime, as I have, will know that such an accusation is, in itself, tantamount to a substantial summary fine in the amount of lawyer's fees, wages lost through court appearances during work time and serious emotional costs, and this fine is applied to anyone who has had charges filed against them whether guilty or innocent.

To impose that fine, one would simply have to make an uncorroborated allegation of sexual assault, if some critics of the adversarial system were successful in creating a system that "believed the survivors" and did not challenge uncorroborated accusations.

Suppose that were to happen and a case like that came to trial and a surprise defense witness were called and that witness testified that the complainant was making the accusation up and that she knew this, because the complainant had told her she was going to do it, "to sink that prick".

Should this last witness's testimony be accepted, uncorroborated?

Would the defense be able to round up numbers of the accuser's former friends to testify that the accuser was a pathological liar? Would this "evidence" be immune from an adversarial cross examination?

Suppose the standard of proof were as in civil litigation. If an accuser were proven, by some miracle to have falsely accused someone, should the accuser automatically become liable for the court costs involved in trying a false accusation?

That is often the case in the civil courts.

If we abandon "proof beyond a reasonable doubt" as the standard for conviction in uncorroborated allegations of sexual assault, and adopt the civil standard of a "balance of probabilities" which indicate guilt, it seems to me that we must also abandon the criminal penal regime for punishments in this kind of case, prescribing financial penalties rather than the incarcerations associated with criminal convictions.

This is not an ideal alternative to the adversarial system and the proof beyond reasonable doubt, but it is a system used for serious matters, often more serious than those dealt with in criminal courts.

A relaxation of the onus on accusers should be accompanied by a relaxation on the obligations of convicts. Tilting the system in favor of one class of victims is not just, and as I think I have shown, above, vulnerable to endless loops of uncorroborated, unchallenged one-upmanship.
edit on 25-3-2016 by ipsedixit because: (no reason given)

edit on 25-3-2016 by ipsedixit because: (no reason given)




posted on Mar, 25 2016 @ 07:30 PM
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I did not get a chance to read up since he was found not guilty, it was a very weird trial, not saying that what he did was ok, but it seems it turned out to be conscentiul sex in the end.



posted on Mar, 25 2016 @ 07:39 PM
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a reply to: dukeofjive696969

No. If you are interested you should follow the link, above to Judge Horkins outline of his decision. He tells the story in its essential details and gives the reasons for his decision. The facts of what happened remain a matter of contention. The case was decided on witness reliability.

Marie Henein, Ghomeshi's attorney, referred to a quotation, "the truth is between the lies".



posted on Mar, 25 2016 @ 07:50 PM
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originally posted by: ipsedixit

Are critics of the adversarial system arguing for a lesser standard of proof in sexual assault cases? Are they suggesting that the level of proof in such cases be similar to the level of proof in civil suits?


I think they are. On top of that the prosecutor knows full well that even when their case is weak at best they can play on the emotions of the jury when it comes to these types of cases.

This is very bad when you have someone falsely accused (a lot of cases is precisely why the case is weak). The prosecutor might their self even believe the accused is innocent, but they feel they need to keep up their conviction rate up to make themselves look better.

Or perhaps the innocent yet accused has had many other run-ins with police and detectives and the prosecutor is maliciously prosecuting the accused for a favor to one of them, and hell he is just another scumbag anyway right?


Yup that really happens. I know more about the system than most people I'll put it that way.

And they want MORE leeway?



posted on Mar, 25 2016 @ 08:01 PM
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This is a slippery slope into legal systems that do not have the stature of the English Common Law and its direct descendants.

Even the Code Napoléon, which employs an inquisitorial system of conducting trials, often confused with a "presumption of guilt", where accused persons can be held for long periods before trial, actually assumes that an accused is innocent until proven guilty.


edit on 25-3-2016 by ipsedixit because: (no reason given)



posted on Mar, 25 2016 @ 09:07 PM
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a reply to: Alien Abduct

It is almost as if the adversarial system's critics think the system would be improved by changing it from one where

"It is impossible to rape a lying whore."

to one where

"It is impossible to escape a lying whore."

I don't think feminists want the privilege to lie under oath in these cases, but they might want severe restrictions on the sort of questioning to which they must submit or perhaps the removal of questions of character and behavior from being relevant in a material way to sexual assault cases.

If this is the case, then attorneys for the defense are left with no way at all, that I can see, to challenge an uncorroborated accusation.

Note: The words from the Star's twitter report of Marie Henein's quotation should read, "truth is often found between the lies". Apologies for the error.
edit on 25-3-2016 by ipsedixit because: (no reason given)



posted on Mar, 26 2016 @ 05:29 AM
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originally posted by: ipsedixit
a reply to: Alien Abduct

It is almost as if the adversarial system's critics think the system would be improved by changing it from one where

"It is impossible to rape a lying whore."

to one where

"It is impossible to escape a lying whore."

I don't think feminists want the privilege to lie under oath in these cases, but they might want severe restrictions on the sort of questioning to which they must submit or perhaps the removal of questions of character and behavior from being relevant in a material way to sexual assault cases.

If this is the case, then attorneys for the defense are left with no way at all, that I can see, to challenge an uncorroborated accusation.

Note: The words from the Star's twitter report of Marie Henein's quotation should read, "truth is often found between the lies". Apologies for the error.


You put it beautify. I thought I put it eloquently enough but your words give another layer. All I can say is they should read both of our comments for a good logically sound perspective.

Cheers



posted on Mar, 26 2016 @ 05:40 AM
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a reply to: ipsedixit

I wonder what truth would be hidden between the lies had Ghomeshi been forced to testify.



posted on Mar, 26 2016 @ 05:51 AM
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a reply to: Alien Abduct

There is a kind of naiveté about the feminist position in this.

In ordinary criminal law, outside the realm of sexual assault, cases are routinely sent by the Crown Prosecutors back to the police because they have not been provided with enough evidence to be reasonably certain of getting a conviction. This is utterly routine and there is no outcry about it whatsoever. People accept that to be just the justice system requires a high standard of proof in criminal cases.

TV dramas are full of cops gnashing their teeth and villains laughing at the system because there is just not enough evidence to prosecute.

Feminists seem to want the bar lowered. In an almost child like way, they want accusations of SEXUAL !!! assault to be BELIEVED without challenge.

They take this position seriously, but a criminal justice system, to be just, can't operate that way.

Under the present system, if you want to go to trial,

GET THE GOODS ON THE GUY JUST LIKE THE COPS HAVE TO DO IN ANY OTHER SORT OF CRIMINAL CASE!

edit on 26-3-2016 by ipsedixit because: (no reason given)



posted on Mar, 26 2016 @ 05:53 AM
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Then surely all anybody need to do is accuse the person/people suggesting this of some sort of sexual assault.

After all very few people even when it is proven they have lied are prosecuted for wasting police time/ perjury/ perverting the course of justice etc

They may have a very different perspective of the process after that. (However the elite do seem to get a pass on such things anyway - unless of course they are not toe'ing the 'party' line in which case they are thrown to the public)

P.S. I am NOT suggesting anybody do this as that would probably make me liable for some incitement crime



posted on Mar, 26 2016 @ 06:06 AM
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a reply to: ipsedixit

That's my point, Ghomeshi's stance was not challenged. Describing this trial as weird is a gross understatement.



posted on Mar, 26 2016 @ 06:08 AM
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a reply to: InTheLight

I agree.

Henein handled his defense well in keeping him off the stand. I think anything that allowed the prosecution behind Ghomeshi's facade would have been disastrous for the defense.

In terms of altering the way these cases are dealt with, the most fruitful avenue might be to allow a fuller exploration of the personal behavior and history of the accused. The complainants were all liable to questions around the issue of consent steming from their continued post alleged assault involvement with Ghomeshi. Remember, none of these women were living with him or dependent upon him in any way.

It is hard for me to accept that Ghomeshi's personal history, the large number of complaints against him, the "similar facts" or perhaps "similar accusations", are deemed to be of no relevance in cases of uncorroborated sexual assault like this one.

If there is an imbalance in the law, in the way that accuser and accused are treated, then this is it.
edit on 26-3-2016 by ipsedixit because: (no reason given)



posted on Mar, 26 2016 @ 06:15 AM
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a reply to: ipsedixit

Exactly, and his lawyer knows this, hence why she advised him to keep his mouth shut. How exactly does someone obtain evidence of sexual abuse without the bruises (choking) or video footage (forget witnesseses unless they are into menage a trois+)?


edit on 26-3-2016 by InTheLight because: (no reason given)



posted on Mar, 26 2016 @ 06:17 AM
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a reply to: InTheLight

The digital audio recorder. The mini spy cam in the clutch bag?



posted on Mar, 26 2016 @ 06:19 AM
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a reply to: ipsedixit

How many people do you know take that technology on dates as I don't know anyone?



posted on Mar, 26 2016 @ 06:20 AM
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a reply to: InTheLight

This guy had a bad reputation. Not everyone knew it, but some of these women did know it.

Maybe self surveillance, particularly on a first date, is the wave of the future.



posted on Mar, 26 2016 @ 06:36 AM
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The concept of probability vs. certainty in this type of case can't be determined because the burden of proof lies solely with the accuser, and in most cases there is no proof acceptable to the courts. If the Crown is smart they will have a sexual abuse expert testify as to survivor behaviour, memory, rationalization (trying to fix it) of an irrational abusive act, etc. and cross-examine Ghomeshi as to his behaviour sexually and non-sexually. From what comments I've read of people (mostly women) who worked with (he thought for him) him, he was narcissistic and volatile.

Oh, and the women protesting outside the courthouse identify themselves as survivors of sexual abuse not feminists.


If these conversations can help us to change the normalization of sexual violence as a part of womanhood, and use the groundswell of dissatisfaction with the legal process to bring in some real reforms, this will all have been for the good.

In the end, this may be the ugly underbelly of what it takes to become a woman, in the famous words of Simone de Beauvoir. Because of the spectacle of the Ghomeshi trial, these daily realities, and the ways our society and its institutions take part in them, are now part of dinner conversation across Canada. This at least is a good thing.


www.theglobeandmail.com...
edit on 26-3-2016 by InTheLight because: (no reason given)



posted on Mar, 26 2016 @ 06:55 AM
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originally posted by: InTheLight
The concept of probability vs. certainty in this type of case can't be determined because the burden of proof lies solely with the accuser, and in most cases there is no proof acceptable to the courts.


I think this is a little jumbled. "Proof" is always acceptable to the courts, if it is actually proof. Allegations, in themselves are not proof. Neither is expert testimony.


If the Crown is smart they will have a sexual abuse expert testify as to survivor behaviour, memory, rationalization (trying to fix it) of an irrational abusive act, etc. and cross-examine Ghomeshi as to his behaviour sexually and non-sexually.


I think the reliance on "authorities" is very dangerous. There is already too much of it in our society. People are losing the capacity to think for themselves. There are lots of cases of "shopping for an expert" who will boost your point of view in a court case. This is a typically American recipe for legal chaos.


From what comments I've read of people (mostly women) who worked with (he thought for him) him, he was narcissistic and volatile.
Those are not crimes. Of more importance is the list of people who believed themselves to have been abused physically by him. I think that testimony should be accorded some material relevance in cases of uncorroborated alleged sexual assault.


Oh, and the women protesting outside the courthouse identify themselves as survivors of sexual abuse not feminists.


I take the point. Feminism is not a pejorative term in my view, though. Just saying.


If these conversations can help us to change the normalization of sexual violence as a part of womanhood, and use the groundswell of dissatisfaction with the legal process to bring in some real reforms, this will all have been for the good.


I agree. People want the justice system to deliver justice where possible.


In the end, this may be the ugly underbelly of what it takes to become a woman, in the famous words of Simone de Beauvoir.


As an aside, I think women are too hard on women. The phrase "ugly underbelly" is typical and suggestive of female self loathing. Speaking as a man, I like the belly and even the underbelly.
edit on 26-3-2016 by ipsedixit because: (no reason given)



posted on Mar, 26 2016 @ 07:14 AM
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The concept of probability vs. certainty in this type of case can't be determined because the burden of proof lies solely with the accuser, and in most cases there is no proof acceptable to the courts.


I think this is a little jumbled. "Proof" is always acceptable to the courts, if it is actually proof. Allegations, in themselves are not proof. Neither is expert testimony


My replies are in italics -

My point is this specific type of sexual abuse provides no proof, therefore, all that is left are allegations and when the alleged perp is not cross-examined, there is absolutely no way to determine the truth between the lies.


If the Crown is smart they will have a sexual abuse expert testify as to survivor behaviour, memory, rationalization (trying to fix it) of an irrational abusive act, etc. and cross-examine Ghomeshi as to his behaviour sexually and non-sexually.

I think the reliance on "authorities" is very dangerous. There is already too much of it in our society. People are losing the capacity to think for themselves. There are lots of cases of "shopping for an expert" who will boost your point of view in a court case. This is a typically American recipe for legal chaos.


I disagree, because sexual abuse has been kept quiet and swept under the rug for so long, I believe it is still the elephant in the room as evidenced by the high number of sexually abused people who still refuse to come forward. People who work with survivors and have a greater insight and research into this scourge are the only ones who can explain and educate those in the legal system, and the rest of us too.


From what comments I've read of people (mostly women) who worked with (he thought for him) him, he was narcissistic and volatile. Those are not crimes. Of more importance are the list of people who believed themselves to have been abused physically by him. I think that testimony should be accorded some material relevance in cases of uncorroborated alleged sexual assault.


I agree, they need to cross-examine him, big time.


Oh, and the women protesting outside the courthouse identify themselves as survivors of sexual abuse not feminists.


I take the point. Feminism is not a pejorative term in my view, though. Just saying.


I know that of you.


edit on 26-3-2016 by InTheLight because: (no reason given)

edit on 26-3-2016 by InTheLight because: having trouble with text in quotes

edit on 26-3-2016 by InTheLight because: next time I will use HTML only



posted on Mar, 26 2016 @ 07:35 AM
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a reply to: InTheLight

I think you are right that society does need more education on this, but Henein cited the Supreme Court of Canada in saying that expert testimony is not required on the subject of the behavior of survivors of abuse. The court has conceded the point and now takes it for granted that erratic behavior, continued association, etc. is not necessarily a contra indication that abuse took place.

Judge Horkins was fully cognizant of that and made reference to it.

In a jury trial, the Crown may well have had a case for admitting expert testimony and the judge may have allowed it. In this case, it wasn't the behavior so much as the lying under oath about the behavior.

If we get to a stage where lying under oath is deemed irrelevant to the credibility of a complainant, I think the system is in deep trouble.

Sexual abuse victims are reluctant to detail their embarrassing post abuse behavior. That is understood and acknowledged, but are the courts to assume that they are only lying about peripherals and never about the main accusation?

If that is the case, no allegation of uncorroborated sexual abuse should ever be allowed to go to trial, without corroboration, beyond the allegation of a liar.

If people want to be allowed to lie without having their credibility impugned in a way that effects the outcome of a case, then they must get corroboration of the incident somehow.

There must be evidence, to obtain a conviction. Get the evidence or simply deal with the fact that one doesn't have evidence and therefore can not go to court.
edit on 26-3-2016 by ipsedixit because: (no reason given)

edit on 26-3-2016 by ipsedixit because: (no reason given)



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