As Ghomeshi trial begins, experts warn historical 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 historical 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

  • Report to urge charges against Brazil's leader over pandemic

    World News CBC News
    Brazilians will turn their focus on Wednesday to the Senate, where a report six months in the making will recommend President Jair Bolsonaro be indicted on criminal charges for allegedly bungling the response to the COVID-19 pandemic, and pushing the country's death toll to second-highest in the world. Source
  • Nikolas Cruz set to plead guilty to Parkland massacre

    World News CTV News
    FORT LAUDERDALE, FLA. -- Nikolas Cruz is scheduled to plead guilty to 17 counts of first-degree murder Wednesday for the 2018 shooting massacre at a Florida high school, as his attorneys turn their focus to saving him from a death sentence. Source
  • Volcano in southern Japan erupts with massive smoke column

    World News CTV News
    TOKYO -- A volcano in southern Japan erupted Wednesday with a massive column of gray smoke billowing into the sky. The Japan Meteorological Agency raised the warning level for Mount Aso to three on a scale of five, warning hikers and residents to avoid the mountain. Source
  • Negotiations drag on over 17 missionaries kidnapped in Haiti

    World News CTV News
    PORT-AU-PRINCE, HAITI -- Negotiations stretched into a fourth day seeking the return of 17 members of a U.S.-based missionary group kidnapped over the weekend by a violent gang that is demanding US$1 million ransom per person. Source
  • 4-time Stanley Cup winner Mike Bossy reveals lung cancer diagnosis

    Canada News CBC News
    Former New York Islanders winger and TVA hockey analyst Mike Bossy is battling lung cancer. He announced the news in a letter to TVA Sports Tuesday. "It is with a lot of sadness that I need to step away from your screens for a necessary pause. Source
  • Brazil senators readying call for Bolsonaro criminal charges

    World News CTV News
    BRASILIA, BRAZIL -- Brazilian senators met into Tuesday night discussing a report that will recommend President Jair Bolsonaro be indicted on criminal charges for allegedly bungling the response to the COVID-19 pandemic, and pushing the country's death toll to second-highest in the world. Source
  • Mexico touts renewables, while blocking solar, wind projects

    World News CTV News
    MEXICO CITY -- Mexico's government claimed Tuesday that it is leading a transition to more renewable energy, even though President Andres Manuel Lopez Obrador is pushing to restrict private wind and solar projects. In a statement following a visit by U.S. Source
  • 'By mistake they shot me': Coquitlam, B.C., man who survived shooting hoping for justice

    Canada News CTV News
    COQUITLAM, B.C. - A Metro Vancouver man says it’s a miracle he’s alive after becoming the innocent victim of a shooting earlier this year. Speaking through a translator on Tuesday, Nader Ahmadirad said he was working a second job at a food delivery company in January when he was shot multiple times outside a local home. Source
  • Squid Game and other popular titles help propel Netflix to higher 3rd-quarter earnings

    World News CBC News
    Netflix posted sharply higher third-quarter earnings Tuesday thanks to a stronger slate of titles, including Squid Game, the dystopian survival drama from South Korea that the company says became its biggest-ever TV show. The company has ramped up production, rebounding from pandemic-induced delays in the first half of the year. Source
  • Facebook pays $4.75M US fine plus back pay to settle suit alleging it favoured foreign workers

    World News CBC News
    Facebook is paying a $4.75 million US ($5.87 million Cdn) fine and up to $9.5 million US ($11.8 million Cdn) to eligible victims to resolve the U.S. Justice Department's allegations that it discriminated against American workers in favour of foreigners with special visas to fill high-paying jobs. Source