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

  • Trump revives 'Pocahontas' insult of Elizabeth Warren

    World News CTV News
    ATLANTA -- President Donald Trump revived one of his favourite -- and most provocative -- taunts against Elizabeth Warren on Friday, derisively calling the Massachusetts senator "Pocahontas." Trump mocked Warren repeatedly during the presidential campaign for claims she made about being part Native American. Source
  • Man who worked at Alberta daycare accused of possessing child porn

    Canada News CTV News
    WETASKIWIN, Alta. -- A 40-year-old man who worked at a daycare has been charged with possessing and distributing child pornography. The Internet Child Exploitation unit says they want to speak with families who may have used Tykes and Tots Day Home in Wetaskiwin. Source
  • Donald Trump to NRA: 'Eight-year assault on your Second Amendment freedoms has come to a crashing end'

    World News Toronto Sun
    ATLANTA - President Donald Trump reaffirmed his support for gun rights Friday, telling attendees of a National Rifle Association convention that “the eight-year assault on your Second Amendment freedoms has come to a crashing end.” Trump, the first sitting president to address the group’s annual convention in more than 30 years, assured the audience that he would defend their right to bear arms in a campaign-like speech reminiscent of his election rallies. Source
  • U.S. seeks tough North Korea action, but China shows no inclination

    World News Toronto Sun
    Turning to diplomacy after flexing military muscle, the United States will urge the U.N. Security Council on Friday to increase economic pressure on North Korea over its nuclear weapons program, leaning on China in particular to turn the screws on its wayward ally. Source
  • Serial killer James Dale Ritchie murdered 4 more

    World News Toronto Sun
    James Dale Ritchie died on the snowy streets of Anchorage, Alaska, with a .357 Colt Python still clutched in his hand. Ritchie, 40, drew the losing hand in a shootout with cops on Nov. 12. Now, detectives have linked the “super intelligent” Ritchie to four more homicides. Source
  • Police are now investigating after protesters swarm cars at dinner event hosted by Sask. Premier Brad Wall

    Canada News CBC News
    Police are now investigating after hundreds of protesters swarmed cars outside the Premier's dinner in Saskatoon. "We're asking people to provide us with info, if they have it, and are looking into the actions of protesters," Saskatoon Police said via Twitter on Friday. Source
  • Dubai dad tries to kidnap lesbian daughter

    World News Toronto Sun
    A homophobic father tricked his lesbian daughter and her gal pal into venturing into the dangerous Middle East – where he stole their passports. The two British women were then stranded in a Turkish detention centre as the father’s attempt to kidnap his daughter and keep her in the Middle East failed. Source
  • Liberals 'doubly committed' to tackling marriage fraud while ending 2-year spousal residency rule

    Canada News CBC News
    Immigration Minister Ahmed Hussen said the federal government is clamping down on marriage fraud even as it scraps a two-year co-habitation requirement for newcomers sponsored by their spouses. Hussen said the conditional permanent residency, which was brought in by the Conservatives in 2012, was leaving some women in harmful domestic situations. Source
  • Flyer campaign targets NDP candidate's transgender identity

    Canada News CBC News
    The NDP candidate for Vancouver-False Creek says she's concerned about the impact of a set of flyers distributed in her riding targeting her transgender identity and the LGBTQ community in general. The flyers — distributed throughout Yaletown — target NDP candidate Morgane Oger by purporting to reveal her male birth name and old photograph. Source
  • N. Korea official: U.S. efforts to rid nukes a ‘wild dream’

    World News Toronto Sun
    North Korea’s deputy U.N. ambassador said Friday that U.S. efforts to get rid of his country’s nuclear weapons through military threats and sanctions are “a wild dream.” Kim In Ryong told The Associated Press that North Korea’s nuclear weapons are never part of “political bargains and economic deals. Source