The Canadian legal systems problem with consent

by | Feb 12, 2016 | Canadian News, News

Malcolm Campbell

At the conclusion of an episode of Law and Order in which an arsonist has been convicted in the murders of 53 people, the bailiff reads aloud the names of the dead. Watching this as a 14 year old at home “sick” from school one day shortly after 9/11, I asked my mother if they would read the names at the trial of Osama bin Laden, if they ever found him. The optimism that if he was found, he would be tried and convicted could only have existed with the innocence that comes with ignorance.

At this point, pessimism is really taking hold and the Ghomeshi trial has done nothing to slow the onslaught.

What has seemed like such a short trial for those lucky enough to be external actors, has been a grueling process for the victims. Their credibility has been attacked and in some cases brought into question by the defence, led by Marie Henein. This is how sexual assault cases often proceed when no physical evidence exists and the issue of consent or culpability is left up to an argument between what the complainants and defendant say. The media throughout has brought to light the plight of sexual assault survivors and how difficult their attackers’ trials can be. Many say that dealing with the criminal justice system is in the end, in some ways worse than the assault itself.

The coverage of the trial however, has been salacious and wall-to-wall. Reporters have been accused of misquoting complainants, creating inconsistencies that have drawn the credibility of their assertions into question. And at the heart of the matter, no one is talking about how the legal framework criminal cases are processed through is not sufficient for cases of sexual assault.

Jian Ghomeshi has never maintained his innocence. He has also never contended that he committed, at the very least, many of the brutal acts he is accused of. This has always been an issue of consent, and the defence has done a good job of using circumstantial evidence, seemingly unrelated to the assaults themselves, to prove that there was an implicit consent to these assaults. Henein is a top-end lawyer, she is earning her money, and the system is working as it should, and that is the problem.

The criminal justice system, as it is now, is designed to put people in jail for committing crimes by using tangible evidence to convict them. Consent isn’t a tangible object. That is why it is nearly impossible to prove that consent was never given beyond a reasonable doubt; it is also why the system needs an overhaul. Just spit-balling here, but what about having a different system of courts for cases of sexual violence where the main actors were trained in dealing with the complexities of these situations?

There would be several benefits right away. First, complainants wouldn’t be subjected to the kind of interrogation and humiliation they are now, as the standards of proof for something like consent would be different. The other side of this, is that people committing offences, at least less violent ones, may be saved through a new system. The prison system as it is now, is not about rehabilitation, and if it is, it isn’t working. I for one would rather see people committing lewd acts, and less violent sexual offences in secure psychological institutions rather than the general population of a federal corrections facility. It is commonly accepted that prisons are the schools of criminals; people go in for five or more years and come out with a network of contacts in the criminal world from around the country. In many cases they have honed their criminal skills. While this isn’t everyone, if a man committing sexual offences goes to prison, creates a network, and hones his skills, what is going to happen when he comes out?

Sexual offences need a place of their own within the criminal justice system both for survivors of sexual violence and the perpetrators, in the hopes they can be rehabilitated. Societal attitudes about rape and violence towards women have come a long way, but it often seems like we haven’t really moved forward at all. Changing the criminal justice system to address the glaring need for a safer, more supportive environment would allow victims to feel like survivors more quickly, and help address the problem at its roots: The offenders.