Tuesday, March 22, 2016

SMOKE DOES NOT A CONVICTION MAKE

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“Nothing less than proof beyond reasonable
 doubt can be accepted as the foundation of
 a criminal conviction,” 

Court Justice William Horkins 
2008 decision acquitting a man of sexual assault.

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The very public saga of 48 year old Jian Ghomeshi will be back in the spotlight this week.

Mr. Ghomeshi will return to court after six weeks to hear the decision of Ontario Court Justice William Horkins on four counts of sexual assault and one of overcome resistance by choking.

When the trial began way back on February 1st, Ghomeshi's was considered guilty by most. His panache for rough sex, the CBC cover-up of expressed concerns about his behaviors towards women and the consequences of sexual compulsions unplugged.

In October 2014, the police issued a call for the public to come forward with any allegations of sexual assault against the former CBC superstar. The media phenomenon, fueled by the sensation of a Canadian "Bill Cosby", churned-up more allegations. It seemed that most people rushed to judgement and  joined the lynch mob - the hipster with the velvet voice was not just kinky - he was a sexual predator. 

In his defense, Ghomeshi offered graphic videos of his, er, sexual deviation (or deprivation) as proof that he did enjoy and participate in rough sex that included stuff that made the vanilla amongst us gasp.  The key, he argued, was that the women were willing participants.

Early on, Ghomeshi released a statement on his Facebook page saying that he was the victim of a “campaign of false allegations.” He claimed that while he did engage in rough sex, it was always consensual.

The women and the prosecution argued that his kinky and adventurous nature crossed the line. They were charmed by his personality - but never signed up for alleged sexual assaults.  None of them consented to being choked, slapped, struck with a closed fist or smothered. They were a sisterhood of the humiliated and violated.

All three told similar stories, yet actus reus and guilt beyond a reasonable doubt were nearly impossible to achieve because the women were discredited. 

The introduction of friendly post-"assault" e-mails, the infamous bikini photo and communications amongst the "victims" and omitted details created a fog of war designed to create doubt, or worse a conspiracy. The trial became a theatre of the absurd.  

Most legal pundits believe that he will be acquitted in this round.

The prosecution was ill-prepared for the aggressive thorough surgical, all women defense team that ripped apart the credibility of each of the women.  

Women are judged on what they do before and after the assault, even if we believe an assault occurred. In this case, it was notable how little focus there was on veracity of the "alleged" sexual assaults.

Voices will be demanding that it is time to revise the burden of proof. To lower the bar to a balance of probabilities approach over the status quo beyond a reasonable doubt system our courts work under.

Cue the talking legal heads, the satellite news feeds, the protests, the outrage and condemnation of the verdict.

Ghomeshi still faces trial on separate allegations in June.



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