As Ghomeshi trial begins, experts warn historic sexual assault convictions hard to secure

TORONTO -- As the trial of disgraced broadcaster Jian Ghomeshi puts the issues of consent and sexual harassment in the national spotlight this week, legal experts caution that convictions in cases of historic sexual assaults are not easy to secure.

See Full Article

Ghomeshi, the former host of CBC Radio's cultural affairs show "Q," faces four counts of sexual assault and one count of overcoming resistance by choking at his judge-alone trial.

The alleged offences date as far back as 2002, and legal experts say the passing of time often poses a significant challenge to winning a conviction in such cases.

"The obvious answer is just the degradation of evidence," said Karen Bellehumeur, a former Crown prosecutor who dealt frequently with sexual assault cases. "Not only has the memory of the survivor of the abuse degraded so that peripheral details are not as clear, but also there is no longer the corroborating evidence to be investigated by police."

Such evidence could include DNA, observations about injuries or damaged clothing, and witnesses, Bellehumeur said, noting that with little physical evidence, such cases typically boil down to a "he said, she said" scenario, especially when the accused and complainants know each other. The issue of consent in those cases, she said, becomes a key element.

"The main problem is that when you have a case that's just one word against the other, which tends to happen more in historic cases...then a criminal case has just such a high standard of proof that it becomes very difficult," Bellehumeur said. "Unless there's a real disparity between the believability of the complainant over the accused then it's going to be very difficult for the Crown to prove a case beyond a reasonable doubt."

One positive aspect of dated sexual assault cases, however, is that the announcement of charges against an accused can prompt other complainants to come forward, which in turn can help the prosecution, Bellehumeur added.

Complainants who take the witness stand, however, will be grilled by the defence who will be seeking to punch holes in their story.

"The complainant's credibility really stands and falls on her testimony, her demeanour," said University of Ottawa law professor Carissima Mathen. "Because the defendant has very strong rights to present a full defence, it can become difficult."

Pre-trial accounts of alleged offences -- as is the case with one of the complainants in the Ghomeshi trial who alleged the broadcaster choked her to the point where she couldn't breath -- are also open to scrutiny.

And even with plenty of testimony, sexual assault cases can often still fall short of convictions due to a lack of definitive evidence to show a crime occurred, Mathen said.

"You can have the complainants be sexually assaulted in the sense that she has experienced a violation, and yet the accused is found not guilty because he didn't appreciate that fact," she said.

It's not that Canadian sexual assault laws are lacking, said one law professor, noting that on paper, they are among the best in the world.

"There are two problems with Canadian sexual assault law -- one is proof beyond a reasonable doubt and that's not going to change," said University of Manitoba law professor Karen Busby. "The other problem is continuing reluctance of some judges to resist the law reform efforts made in the 90s."

Those reform efforts included changing the definition of consent in sexual assault cases so that consent has to be "contemporaneous and continuous," as well as changes on the use of personal records and past sexual history in such cases, said Busby.

Some judges, however, still fall back on sexual stereotypes, said Busby, citing the recent case of an Alberta judge who suggested to a complainant that she ought to have kept her knees together, prompting a formal complaint.

"As long as judges are willing to disbelieve women and continue to rely on sexual stereotypes, cases that in my view should be open-and-shut cases, won't be."



Advertisements

Latest Canada & World News

  • Who are the Manchester bombing victims?

    World News Toronto Sun
    The youngest victim was eight. The oldest, 50. Teenage concertgoers, their devoted parents. The innocent. And in a flash, their lives were ripped away by the darkest depths of evil. Remember these names: Sorrell Leczkowski, 14; Michelle Kiss, 45; Jane Tweddle-Taylor, 50; Nell Jones, 14; Martyn Hett, 29; and Angelika and Marcin Klis, 40 and 42, respectively; Georgina Callander, 18; Saffie Rose Roussos, 8; Megan Hurley, 15; John Atkinson, 26; Kelly Brewster, 32; Alison Howe, 44; Lisa Lees, 43; and Olivia Campbell,…
  • Quebec-California cap-and-trade auction sells out current allowances

    Canada News CTV News
    The latest Quebec-California cap-and-trade auction sold out of its current allowances, a stark improvement from the previous one in which only 18 per cent of its offerings sold. Ontario, which started a cap-and-trade program this year, will hold its second auction on June 6. Source
  • 'They just hated all the attention'; Murder plot against Postmedia reporter revealed at UN gang trial

    Canada News Toronto Sun
    VANCOUVER — The Cory Vallee murder trial has offered a fascinating glimpse into the violent world of the notorious United Nations gang and its targets. UN members-turned-Crown witnesses have testified that the gang plotted against rivals, killed young street-level dealers, and even arranged a hit on one of its own members, who was hiding out in Mexico. Source
  • Ronnie Wood has lung lesion successfully removed: spokesperson

    World News CTV News
    LOS ANGELES - A spokesperson for Ronnie Wood says the Rolling Stones guitarist has had a lung lesion successfully removed and is expected to make a full recovery. Wood, who turns 70 next week, says in a statement that he is grateful to doctors who found the lesion in its early stages. Source
  • Investigators explore bomber's links to larger network

    World News CTV News
    LONDON -- British investigators are hunting for potential conspirators linked to the bombing that killed 22 people in a search that is exploring the possibility that the same cell linked to the Paris and Brussels terror attacks was also to blame for the Manchester Arena attack, two officials familiar with the investigation said Wednesday. Source
  • Trump hotels won't ask if stays paid with foreign government money

    World News CTV News
    NEW YORK -- The Trump Organization says it will not ask guests at its hotels and resorts if they are using money from foreign governments to pay their bills, setting up a possible showdown with Democrats who accuse the president of violating the U.S. Source
  • N.S. political leaders focus on health care in election's final days

    Canada News CTV News
    HALIFAX -- Nova Scotia's Tories and NDP have pinpointed health care as the Liberals' Achilles heel as the election campaign enters its final days, hoping to convince voters it is in crisis and they can fix it. Source
  • Why Melania Trump covered her head at the Vatican but not in Saudi Arabia

    World News CTV News
    WASHINGTON -- To cover up or not to cover up? Melania Trump wore a veil to the Vatican on Wednesday to meet the pope, but no head covering a few days earlier to meet the king of Saudi Arabia, a religiously conservative country where most women cover themselves up from head to toe. Source
  • Playboy playmate Dani Mathers, who shot nude photo of unwitting 71-year-old woman, pleads no contest [Photos]

    World News Toronto Sun
    LOS ANGELES — A Playboy centerfold who ignited a backlash of criticism when she secretly snapped a photo of a naked 71-year-old woman in a locker room and posted it online mocking the woman’s body is expected to appear in court Wednesday to resolve a criminal charge. Source
  • Bear tears off car bumper in search of pastries inside

    World News CTV News
    STEAMBOAT SPRINGS, Colo. — A bear with a sweet tooth ripped off the bumper of a car used to deliver doughnuts in Colorado then tried to claw its way through the trunk to get inside. Source