The Ghomeshi Case: Is Probability Superior to Certainty?

a reply to: ipsedixit

Yes, and if an expert in the field of sexual abuse was allowed to explain the behaviour relevant to post-abuse then the judge and all others would then be educated on this point. As well, the victims seemed to be further victimized in the court environment, and so how does this affect the behaviour of the survivors?

www.statcan.gc.ca...

. . . the victims seemed to be further victimized in the court environment, and so how does this affect the behaviour of the survivors?

That is an unfortunate thing that is unavoidable.

Being attacked in war is a kind of victimization but counterattacking is also a kind of suffering that one must endure to deliver oneself from the attacker.

One must suffer to achieve redress in many walks of life. Almost nothing in life that is worth achieving is achieved without suffering.

I think there is a practical limit to the degree to which the court can palliate the suffering of abuse victims.

a reply to: InTheLight

Your linked article from StatsCan was interesting.

I've taken a quote from it and added some comments that I think might actually represent a militant approach to sexual assault on the part of victim's advocates. I know these aren't necessarily your views, but they give a perhaps distorted, but still relevant, I think, picture of the character as I perceive it, of a lot of the militancy we see on this subject.

Victims of both forms of sexual assault generally had similar reasons for not reporting the incident to the police. The most commonly stated reason why victims of sexual assault did not report the incident to the police was because they felt it was not important enough (58%).

Militant: It is important! It should always be reported.

Victims also stated that they did not report to police because the incident was dealt with in another way (54%)

Militant: It should not be dealt with another way. It should be taken to court.

; they felt that it was a personal matter (47%);

Militant: It is not just a personal matter. It is a matter for women and society in general.

or they did not want to get involved with the police (41%).

Militant: It is your duty to get involved with the police.

I can understand why abuse victims don't report and I think that revictimization, protracted revictimization is at the root of it.

Perhaps, in cases of uncorroborated sexual assault, the courts are simply not the place to deal with the issue, even if, as in the Ghomeshi case, part of a "class" action.

Perhaps victims should seek emotional help in such uncorroborated cases and not legal retribution. It would appear that most already do that anyway.

Should militants be second guessing the choices of these victims?

a reply to: ipsedixit

What is missing from that report is the self-imposed (or societal programming?) shaming, embarassment and blaming that women put on themselves, and the feeling of hopelessness in proving it in court.

a reply to: InTheLight

That's true. Our society has a lot of difficulty with these more intimate aspects of human relationships. I think people, left to their own devices, handle this sort of thing better than institutions or courts.

We need to support one another in life. Healing oneself is the most important thing.

Retribution in the courts comes at a price, the most important part of which is corroborative evidence. If you don't have it, and you don't want to tell the whole truth, don't go to court.

a reply to: ipsedixit

Or, try to tweek the system for fairness. In this case, not a "he said - she said" but rather a "he didn't say - they said", where there are multiple accusers that the presumption of innocence should not be a factor and that the accused be challenged on the stand.

a reply to: InTheLight

One of the things I was concerned about in Marie Henein's defense strategy was her decision to try the cases of three different complainants at one time, because of the danger of bringing in "similar fact" evidence that might influence the way the judge looked at the case.

In her summation she referred to indications in the testimony of "collusion" between the complainants, that would have made a "similar fact" application by the Crown inadmissible.

That's the kind of fine point that would be given more weight by a judge than by a jury, I think.

A judge would have thought, "I don't know if they were actually colluding, but in their communications with one another, they were making noises like that kind of duck, which opens the door to 'reasonable doubt' about the matter of collusion".

I'm not sure that would be the case in a jury trial.

Henein's most important choice in all of this was to opt for trial by judge alone. Ghomeshi's weakness was his reputation, i.e., the record of complaints against him.

Henein played a faultless game of legal snooker, and ran the table.

Her only "close call", in my opinion, was the low probability that a similar fact evidence based guilty verdict would appeal to Justice Horkins more than a more easily defensible not guilty verdict based on the clear cut fact that witnesses lied about their relationships and their expressed attitude to their alleged abuser, under oath.

I think that if an accused is compelled to testify and if witnesses are called to undermine an accused's character and credibility and we move away from the present narrow focus on the facts at issue in the original complaint, we will see significant "legal drift" in cases and examples of where cases become unmanageably bulky and cumbersome.