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Light sentencing for sex offenders
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Senor Magoo
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PostPosted: Fri Feb 25, 2011 6:29 pm    Post subject: Reply with quote

For violent crimes like this there should really be some minimum sentence mandated. I don't know what we'd call that, but it would certainly prevent morons like this from sending rapists home with a handshake.
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Raos
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PostPosted: Fri Feb 25, 2011 6:59 pm    Post subject: Reply with quote

Never one to let an opportunity for that hobby horse pass by, are we?
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Senor Magoo
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PostPosted: Fri Feb 25, 2011 7:14 pm    Post subject: Reply with quote

If I mention mandatory minimums a week from now I'll hear that judges know what they're doing and I should trust them, and besides, prison sentences are just animalistic revenge.

But situations like this seem to reverse the usual polarity of the universe so I like to carpe diem. It's sort of an ideological Sadie Hawkins day.
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Searosia
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PostPosted: Fri Feb 25, 2011 8:27 pm    Post subject: Reply with quote

So the prosecutors were looking for three years jail time and he got 2 years of probation/curfew and has to write an apology letter because "the women were wearing tube tops with no bra, high heels and plenty of makeup"? Ugh, that he'd actually state that...my knowledge of law isn't the best, but I always thought that no bra would reduce the sentance to probation only, a 9 month reduction for the high heels and 9 months for make-up...which would leave us at 18 months not 2 years. Guess Dewar must have used the interpretation of only 3 months reduction because the high heels were not stillito's, or perhaps the make-up was only partially inviting? Rolling Eyes


One of the few times I'm actually agreeing with the comments posted on the article...for the most case, the people who posted 'she deserved it' have a bunch of thumbs down on their posts now.

Anyone in a position where they can attend this rally? I'm curious how many people show up
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Tehanu
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PostPosted: Fri Feb 25, 2011 8:33 pm    Post subject: Reply with quote

Senor Magoo wrote:
For violent crimes like this there should really be some minimum sentence mandated.

Are you talking about the judge here? Because he sure did do violence to any concept of justice.

And yeah, Magoo, I'm still going to be consistent and say that indeed mandatory minimums are a bad thing. And also that we need a complete overhaul of the justice system. Shit like this is just one reason. Frankly, I'm not a huge fan of complete judiciary discretion, either, because then there's the aspect of having the luck of the draw in terms of what judge you get. And what defence attorney you get (or can afford). Or what race you are.

Rather, we should have mandatory diversion programs unless the crown can demonstrate that the offender is an immediate danger to himself/herself or others, and cannot reasonably be controlled. In which case I'm more inclined to think that person should be in a psych ward.
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Senor Magoo
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PostPosted: Fri Feb 25, 2011 8:38 pm    Post subject: Reply with quote

Quote:
And also that we need a complete overhaul of the justice system.


What would you suggest? Specifically, what would you suggest that would prevent or remedy this (aside from something soft and hopeful, like some "sensitivity" pamphlets and such)?

Quote:
Rather, we should have mandatory diversion programs unless the crown can demonstrate that the offender is an immediate danger to himself/herself or others, and cannot reasonably be controlled.


How certain are we that this man is an immediate danger, or cannot be controlled?

And if we're not certain, then why do you describe this as a violent attack on justice? Wouldn't something like this actually be your preference, notwithstanding for the immediately dangerous and uncontrollable?
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Tehanu
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PostPosted: Fri Feb 25, 2011 9:01 pm    Post subject: Reply with quote

Senor Magoo wrote:
What would you suggest? Specifically, what would you suggest that would prevent or remedy this (aside from something soft and hopeful, like some "sensitivity" pamphlets and such)?

Yeah, that's me, soft on rape.

Anyhoo, round the mulberry bush we go. I posted this upthread.

Quote:
I'm with Cueball, although sex crimes/pedophilia, along with murder or GBH, make my blood boil. But I have yet to see any convincing evidence that retributory justice achieves anything other than a sense of vengeful satisfaction, and the (usually temporary) removal of a criminal from society. And given that criminals can be counted on coming out worse than they went in, in many cases, the current prison system seems pretty futile.

At some point we're going to have to decide if our justice system exists primarily to try and solve problems of criminal behaviour, or to punish them.

I don't think there's ever been a serious enough attempt at a rehabilitation-based system for people convicted of crimes. The closest I've heard about, and don't know enough about, is aboriginal healing lodges.


And then this in response to your desire for deterrence:

Quote:
That's my point, Magoo ... I haven't done a huge amount of study on this particular topic, but what I have read has shown that the deterrance aspect, the possibility of going to jail, has very little impact on most criminal behaviour. Most criminals apparently don't think they're going to get caught.

If it did work, the American three-strikes program would have resulted in a significant decrease in prison populations, wouldn't it? Not really seeing that, last I looked the States had one of the highest incarceration rates in the world.

And yeah, that we often seem to punish property crimes (including white collar crimes) less severely that those involving personal injury is a bit odd. But the key thing is punishment. "Justice for victims" doesn't solve the problem, even if it might make some people feel better.

I expect we may have to agree to disagree on this, as I recall we've had this conversation before, once or twice. Wink


Senor Magoo wrote:
Quote:
Rather, we should have mandatory diversion programs unless the crown can demonstrate that the offender is an immediate danger to himself/herself or others, and cannot reasonably be controlled.


How certain are we that this man is an immediate danger, or cannot be controlled?

Has anyone dug into where this dude got the idea that it was okay to rape a woman who is dressed a certain way, or to keep going after she says no? Any possibility he picked that up from somewhere?

And if he did, does he understand the impact of what he did to this woman? Has any form of reparation to her been attempted, other than being hideously insulted by the judge?

Any chance that tossing him in jail for two years is going to miraculously cause him to not reoffend when he gets out? Or would it be better to actually get him into a diversion program of mandatory counselling, restorative work, and/or working with him to take personal responsibility for his actions and understanding the impact that they can have on others?

See, I don't believe that many people are intrinsically evil, rather, I see them doing evil things. And making it clear that these are unacceptable, both on an individual and on a societal level, is crucially important. We don't have strong anti-rape messages. I've said before that if we had the same amount of publicity around how bad rape is that we do around drinking and driving, we'd have a remarkably safe society.

For individual offenders, I want to see us doing as much as we can to change their behaviour, and we need to do a hell of a lot more to support the victim of the crime. Convince me that putting someone in jail for two years is going to accomplish either of these goals. Pun intended.

Quote:
And if we're not certain, then why do you describe this as a violent attack on justice?

I was yanking the chain. Because what that judge said was completely revictimizing. Those comments are a clear example of what I just posted over in the Assange thread about rape culture. Here's the Melissa McEwan link again.
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Senor Magoo
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PostPosted: Fri Feb 25, 2011 9:17 pm    Post subject: Reply with quote

Quote:
Anyhoo, round the mulberry bush we go. I posted this upthread.


Are you suggesting a healing lodge? Because other than reiterating a need for change, there are no concrete suggestions there.

Quote:
Has anyone dug into where this dude got the idea that it was okay to rape a woman who is dressed a certain way, or to keep going after she says no? Any possibility he picked that up from somewhere?

And if he did, does he understand the impact of what he did to this woman? Has any form of reparation to her been attempted, other than being hideously insulted by the judge?


I don't have answers to these. But does not understanding the impact of what he did make him an immediate danger? Or uncontrollable? Because I don't think all that many criminals have that kind of insight.

Quote:
Because what that judge said was completely revictimizing.


Ah, my bad. I was stuck inside the context of the sentence. But I'd agree.
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PostPosted: Fri Feb 25, 2011 10:56 pm    Post subject: Reply with quote

Lord almighty. I hope the Crown gets itself together to appeal this sentence. Two years probation for rape is offensive. While there are, on extremely rare occasions, legitimate misunderstandings about consent, nothing I have read about this case suggests that it was one of them.
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Raos
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PostPosted: Fri Feb 25, 2011 11:06 pm    Post subject: Reply with quote

Senor Magoo wrote:
If I mention mandatory minimums a week from now I'll hear that judges know what they're doing and I should trust them, and besides, prison sentences are just animalistic revenge.


Right, because that claim is clearly intended to mean that no single judge, ever, could possibly make so much as a single bag judgement or statement. Ever. Rolling Eyes
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Senor Magoo
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PostPosted: Mon Feb 28, 2011 3:20 pm    Post subject: Reply with quote

Yes, evidently they get it wrong sometimes, but oddly, ONLY ever in the case of sexual assault or child molestation. Huh. Interesting, eh?

And what of the "barbarity" of prison? How is it that prison sentences -- the longer the better -- are actually appropriate in cases like this, and only cases like this? Does prison help a rapist heal in some way that it doesn't help anyone else?
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PostPosted: Tue Mar 01, 2011 12:00 am    Post subject: Reply with quote

Senor Magoo wrote:
Yes, evidently they get it wrong sometimes, but oddly, ONLY ever in the case of sexual assault or child molestation. Huh. Interesting, eh?

And what of the "barbarity" of prison? How is it that prison sentences -- the longer the better -- are actually appropriate in cases like this, and only cases like this? Does prison help a rapist heal in some way that it doesn't help anyone else?

With child molesters in particular, there is a substantial body of psychological research saying pedophiles cannot be cured of pedophilia. In that circumstance, it makes sense to impose lengthy terms because it is one of the few options available to protect the public. Imprisonment should be a last-ditch option when there is no other viable option to protect the public. There are many crimes where rehabilitation and the avoidance of recidivism is seriously harmed by imprisonment. In a lot of cases, imprisonment actually causes crime rates to rise.
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PostPosted: Tue Mar 08, 2011 4:47 am    Post subject: Reply with quote

Searosia wrote:
So the prosecutors were looking for three years jail time and he got 2 years of probation/curfew and has to write an apology letter because "the women were wearing tube tops with no bra, high heels and plenty of makeup"? Ugh, that he'd actually state that...my knowledge of law isn't the best, but I always thought that no bra would reduce the sentance to probation only, a 9 month reduction for the high heels and 9 months for make-up...which would leave us at 18 months not 2 years. Guess Dewar must have used the interpretation of only 3 months reduction because the high heels were not stillito's, or perhaps the make-up was only partially inviting? Rolling Eyes


My understanding when I originally read this story was that there was skinny-dipping involved. Which, even if that was the case, still does not "imply" that the woman consented. If you've ever been to a nude beach or resort, the vast majority of such places frown on sexual advances that make people feel uncomfortable, in some cases even formally spelling that out.
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PostPosted: Fri Mar 18, 2011 4:35 pm    Post subject: Reply with quote

Lurking cloak off

I know that this article is from the Post and I appologize for that, and I reccomend that no one reads the comments, but can the legal experts around hear explain mens rea and all the other legal implications in this article. I really do want to learn.

Thanks

http://fullcomment.nationalpost.com/2011/03/18/kevin-libin-%E2%80%9...
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PostPosted: Fri Mar 18, 2011 5:31 pm    Post subject: Reply with quote

Hm. I'll defer to the legal minds about the legal terms. But something seems strange to me about this article. He says, with supporting comment from the judge and even the prosecutor, that "the fact is" the victim didn't say no, and until now when the judge's full ruling was released we all just weren't aware of that, only knowing about stuff taken out of context.

But I could swear, unless there has been more than one case referred to in this thread, that at least one earlier article quoted the victim saying she did too say no. If it happened on a deserted highway at night, how can anyone be sure that "the fact is" different from like wot the victim said it was? OTOH, in theory the prosecutor would be sort of on the victim's side (at least in the sense of supporting testimony of hers that would make it easier to prosecute the defendant), so why would she be saying different? Weird.

Unless this guy, being a National Pest columnist, is himself lying and/or taking things seriously out of context. Or I've misremembered or gotten this mixed with a different case.
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PostPosted: Sat Mar 19, 2011 12:25 am    Post subject: Reply with quote

As one of two resident lawyers, I will take this on.

First off, actus reus. This means the forbidden act. In the crime of murder, for example, the actus reus is causing death.

The mens rea is the forbidden state of mind. This is also known as the mental element of the offence. To continue with the murder example, the mens rea of murder is intent - the intent to do the actus reus. Intent is the mens rea for most crimes, but there are a smaller set that have the mens rea of negligence. Some have the mens rea of wilful blindness.

When you put together the elements of actus reus and mens rea, you have a criminal offence. Something that regularly gets people confused is that mens rea is not the same as motive. The Crown has no obligation to prove motive for a crime, but it must prove mens rea.

As Libin lays out, the offence of sexual assault has the actus reus of engaging in sexual behaviour with a person without that person's explicit consent. There are two possible mens reas for sexual assault. One is intent, the intent to engage in sexual behaviour with a person without that person's consent. The other is wilful blindness, deliberately closing your eyes to whether or not the person with whom you are engaging in sexual behaviour has given their consent.

The judge's finding appears to have been that the accused was wilfully blind as to whether or not the complainant was consenting, rather than finding that he was intentionally having sex with her without her consent. The sentencing decision then turned on the notion that wilfully blind sexual assault is not as bad as intentional sexual assault. I take serious issue with that conclusion, but that does appear to have been a major motivating factor for the judge in reaching the decision that he did.

I'm not sure if I am answering the questions you have here, but feel free to ask more, and I will try to answer them.
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Tehanu
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PostPosted: Sat Mar 19, 2011 2:08 am    Post subject: Reply with quote

Whether the guy was willfully blind to what he was doing or not, the effect on the woman is the same. She was raped.

What I think when I hear about this? Willful blindness speaks at the very least to a lack of awareness of sexual assault. What I said upthread: Let's do the same amount of education and social pressure about sexual assault as we do about drinking and driving. We live in a culture that excuses and even encourages sexual assault, and that's got to change.

I'm curious about the media coverage around this case, as well. And I'm not going to read the NP comments, I'm not quite masochistic enough to do that.

But I think this is interesting, from the article:

Quote:
More importantly, he said he had a problem accepting that jail would be the right place for a man with no history at all of crime or violence, a solid record of employment, the support of a girlfriend, and whose pre-sentencing report placed him at an extremely low likelihood of re-offending, showing no signs of problematic psychological or antisocial patterns. “There is no real suggestion of recidivism.” The judge was categorical that Rhodes is a rapist, full stop. But he also was unsure whether locking him up would do anyone any good. “As to rehabilitation and promoting a sense of responsibility, a lengthy prison term, in my view, for non- thinking behaviour tends to stifle constructive change rather then encourage it,” he said. Rhodes did deserve “sanctions”; “Apart from anything else women deserve respect and consideration,” wrote this alleged Neanderthal. But “protection of society, I do not believe is advanced one iota by putting Mr. Rhodes in jail.” He would, for two years, be put under house arrest, except for going to work and one trip a week to purchase “food and items necessary to live.” He cannot consume alcohol or drugs. He must write a letter apologizing to the victim and taking responsibility for his actions. He would be registered as a sex offender. And he should attend counseling for sex offenders.

While I would have required more restitution to the woman who was raped, I also think that this approach is more likely to reduce the chance that this guy will rape again. I wish this had been included in the original media reporting.

The NP author goes on to sneer at "liberals" about how we feel about jail: he should check out this thread to see that we are, in fact, capable of maintaining consistency on issues like this. And my own outrage? Directed at the reports of the judge's victim-blaming comments, which while clearly taken out of context, are still highly questionable.
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PostPosted: Sat Mar 19, 2011 5:42 am    Post subject: Reply with quote

From the NP article:
Quote:
But as futile as it may be to say so now, the initial coverage misconstrued the sentence to begin with: “A convicted rapist will not go to jail because a Manitoba judge says the victim sent signals that ‘sex was in the air’ through her suggestive attire and flirtatious conduct on the night of the attack,” reported the Winnipeg Free Press on February 24.

I quickly went through the judgment (skipped parts of it, esp. comparisons to other cases), but I don't see what's so inaccurate about that WFP quote. While the conviction acknowledges it's rape, the sentencing does cite as a mitigating factor Rhodes' "misreading signals". At one point, the complainant returned his kisses, but you can figure out what's going on there when she later asks if he's going to kill her. And the judge does understand this, calls it "involuntary" and "based on self-preservation" (p 77), but at the same time, he takes into consideration that the rapist didn't get that. So this sounds kind of contradictory to me; willful blindness is not an excuse for conviction, but it is for sentencing.

The Crown is appealing:
Quote:
Justice Dewar “erred in finding the actions of the complainant mitigated the moral culpability of the respondent,” Crown attorney Michel Mahon wrote in a notice of appeal filed this week.


From the judgment:
Quote:
This is a case of misread signals and inconsiderate behaviour. There is a different quality to these facts than found in many cases of serious sexual assault.

I'm not sure what he's saying here, but it sounds an awful lot like "real" rapes are strangers jumping out of bushes. From what I've read, rape as a result of misread signals is about as common as dirt:
Why rape isn't one big misunderstanding

And what's with the language - inconsiderate, insensitive. Is this standard for the courtroom to avoid being inflammatory? It comes across as minimizing.

Quote:
“There is no real suggestion of recidivism.” . . . . But “protection of society, I do not believe is advanced one iota by putting Mr. Rhodes in jail.”

The Crown asserted that Rhodes was unremorseful, and the judge agreed. He's had time to reflect on this woman asking if he was going to kill her, and her being so afraid she was running away in a remote area with no pants on, and he's not remorseful? And the judge thinks there isn't a likelihood he'll do something like this again?

I've got a question too, to do with the relevance of the rapist having no prior convictions and a job. Why is that a consideration in sentencing? If he was unemployed and had prior convictions, would he deserve a harsher sentence for committing the very same act? I thought a sentence was punishment for that one crime, not this crime plus a little extra thrown in for that bad thing you did 5 years ago, for which you already served time. I know that on Law and Order, where I received most of my legal training, prosecutors have a tough time bringing in "prior bad acts" because they're "prejudicial". If the bad stuff can't be brought in, why can the good stuff? And are the odds of being raped by an unemployed guy greater than one with a job?
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PostPosted: Sat Mar 19, 2011 1:39 pm    Post subject: Reply with quote

The guy is unremorseful, and the judge agrees with this? Well, that kind of makes any restitution towards the woman meaningless, doesn't it? "Dear X, I'm sorry you thought I raped you."

I take it back. Restorative justice needs perpetrators to be fully engaged in taking responsibility for what they did.
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PostPosted: Sat Mar 19, 2011 2:04 pm    Post subject: Reply with quote

Tehanu wrote:
The guy is unremorseful, and the judge agrees with this?

p. 72 lines 18 and 19
Quote:
She [the prosecutor] argues there is a lack of remorse and I tend to agree that I haven’t heard much remorse expressed.
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PostPosted: Sat Mar 19, 2011 9:28 pm    Post subject: Reply with quote

fork wrote:
I've got a question too, to do with the relevance of the rapist having no prior convictions and a job. Why is that a consideration in sentencing? If he was unemployed and had prior convictions, would he deserve a harsher sentence for committing the very same act? I thought a sentence was punishment for that one crime, not this crime plus a little extra thrown in for that bad thing you did 5 years ago, for which you already served time. I know that on Law and Order, where I received most of my legal training, prosecutors have a tough time bringing in "prior bad acts" because they're "prejudicial". If the bad stuff can't be brought in, why can the good stuff? And are the odds of being raped by an unemployed guy greater than one with a job?


Once you get to the sentencing stage, all kinds of factors that are not relevant to guilt or innocence can be taken into account. If it's an aggravating factor, the Crown has to prove it beyond a reasonable doubt. If it's a mitigating factor, the standard isn't as strict and it's left to judicial discretion. At that point, it's as much about crafting a fit sentence for the individual offender as for the specific crime. It's kind of the whole point about tailored rather than mandatory sentencing.
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PostPosted: Sun Mar 20, 2011 12:22 am    Post subject: Reply with quote

It would seem that the mitigating factors are stemming from the judge's benighted and patriarchal views.

He should be ripped from the bench and horsewhipped for being such a regressive lunk.

Don't even get me started on what should be done with the perp.
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Senor Magoo
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PostPosted: Mon Mar 21, 2011 2:28 pm    Post subject: Reply with quote

Quote:
The NP author goes on to sneer at "liberals" about how we feel about jail: he should check out this thread to see that we are, in fact, capable of maintaining consistency on issues like this.


I've been following and participating in this thread, and honestly, I haven't seen this consistency. Can you help this guy -- and me -- out here?
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PostPosted: Mon Mar 21, 2011 4:58 pm    Post subject: Reply with quote

Consistency in not saying in this case lock the offender up and throw away the key even if we generally don't like such things as mandatory minimums; consistency in being critical of the judge's comments and rationale, rather than on the sentencing.

A number of us have maintained consistency around whether or not we feel lengthy prison terms are an effective way of dealing with criminal offenses, including sexual assault.

Oh, and you're always consistent. Wink
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Senor Magoo
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PostPosted: Mon Mar 21, 2011 7:20 pm    Post subject: Reply with quote

Quote:
Consistency in not saying in this case lock the offender up and throw away the key even if we generally don't like such things as mandatory minimums;


What do you mean by "generally"?

"Other than in cases of rape or child molestation, at which point they'd be awesome"?

Or, to be fair, do you mean you accept a mandatory minimum for homicide, as the law exists?

Quote:
consistency in being critical of the judge's comments and rationale, rather than on the sentencing.


Huh. You may have no quarrel with the sentence, but it looks like others are a mite skeptical. And then there's the thread title, which doesn't say "Judges' Offensive Comments" or something similar.

Quote:
Oh, and you're always consistent.


I assume that if I'm not, I'll be called on it. And if I protest that in fact I rilly rilly am, I'll be called on that too.
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PostPosted: Mon Mar 21, 2011 7:28 pm    Post subject: Reply with quote

Magoo, this is what Kevin Libin in the National Post said, that I was referring to upthread, in terms criticising "self-proclaimed liberals" about a lack of consistency:

Quote:
Interestingly, an approach that views prison as a poorer stand-in for rehabilitation than trying to make some restitution with the victim and attending counseling is a philosophy traditionally espoused by self-proclaimed liberals. Take sentencing circles, where aboriginal offenders must confront those they hurt with their crimes. They are seen by the left as ideal: more likely to help heal everyone, including victim and offender, than locking someone up in an institution where they’re likelier to find drugs and learn only to be a better criminal. This prominently “progressive” approach of opting for counseling over prison whenever it’s safe to do so appears to be something Judge Dewar believes extends to non-aboriginal, one-time offender rapists as well. Clearly he’s alone in thinking it.

Perhaps the judge was wrong. Perhaps when it comes only to rape he should not have considered the lack of a guilty mind a relevant and mitigating factor. Perhaps the left’s generally persuasive belief that prison can do an offender, and society, as much harm as it does good should be suspended specifically for Kenneth Rhodes. Perhaps all the prevailing attitudes justice scholars have been advancing for decades about the limited usefulness of prison must be put aside when it comes specifically to the especially repugnant crime of rape. But if that’s the case, it’s hard not to see how the judge—thinking he was being progressive in keeping a man with one crime and no recognized risk of re-offending—ended up getting tangled up in a few mixed signals himself.


I've bolded the parts I was referring to. Does that help clarify things for you?
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PostPosted: Tue Mar 22, 2011 1:58 pm    Post subject: Reply with quote

A New Brunswick judge sentenced a Tracyville man to 10 years in prison on Monday for a series of sex-related crimes against children.

Judge Alfred Brien sentenced Michael Gary Gilbert to 15 years, but reduced it to 10 years and eight months because of time already served and because it took longer than the prescribed 24 hours to bring charges against him after he was arrested.

http://www.cbc.ca/news/canada/new-brunswick/story/2011/03/21/nb-gil...
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PostPosted: Fri Mar 25, 2011 6:05 am    Post subject: Reply with quote

sam wrote:
Once you get to the sentencing stage, all kinds of factors that are not relevant to guilt or innocence can be taken into account. If it's an aggravating factor, the Crown has to prove it beyond a reasonable doubt. If it's a mitigating factor, the standard isn't as strict and it's left to judicial discretion. At that point, it's as much about crafting a fit sentence for the individual offender as for the specific crime. It's kind of the whole point about tailored rather than mandatory sentencing.

I’ve had a chance to go over the decision again, and on page 19, there’s a distinction made between mitigating facts (related to the incident, such as “provocation“) and mitigating circumstances (clean record, age, that sort of thing). Mitigating circumstances, as the term is used here, crafts a sentence to suit not the individual offender, but to indulge the judge’s biases.
Is this a package deal? If I want to allow judges to be able to use their discretion in matters relevant to the crime, do I also have to support the idea that someone who doesn’t have a job or has a criminal record for something like theft deserves harsher punishment for rape? We should be discouraging people from thinking that because someone is rich, or goes to church on Sundays, or occupies a leadership position in the community, that their crime is somehow not as bad; we shouldn’t be entrenching it as a legal principle. And I should be able to hold that position and at the same time think judges need to be allowed to craft the sentence for the specific crime, and not be pigeon-holed as a supporter of mandatory sentencing.

Rufus Polson wrote:
But something seems strange to me about this article. He says, with supporting comment from the judge and even the prosecutor, that "the fact is" the victim didn't say no, and until now when the judge's full ruling was released we all just weren't aware of that, only knowing about stuff taken out of context.

But I could swear, unless there has been more than one case referred to in this thread, that at least one earlier article quoted the victim saying she did too say no.

Very briefly, here’s how it went down. Early on, she rebuffed him. Later, when alone with him, she suggests moving out of the more secluded area of a gravel road to the openness of the highway. There’s hand-holding and she returned his kisses, and that’s acknowledged as being done out of fear. When they get to the highway, he lays her down by the side of the road, and he starts with digital penetration. She tells him he’s hurting her and asks him if he‘s going to kill her, to which he responds that it will only hurt for a little while. This is followed by penile penetration and cunnilingus.

The part where she tells him he’s hurting her is seen as an expression of non-consent. The references to her not saying no is that she did not utter the word “no” or “stop”.
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PostPosted: Fri Mar 25, 2011 12:19 pm    Post subject: Reply with quote

If the NP writer actually read the decision, then he either has poor reading comprehension or is a weasel. When he’s pointing to Dewar’s understanding of Rhodes’ culpability, he makes it sound as if this is part of the sentencing decision. It’s not; he’s referencing the conviction. Dewar actually asks if he can throw out the basis on which the conviction was made when making his sentencing determination (starts p. 31). This does not show that Dewar agrees with “not saying “yes” means “no,” too", as Libin claims:
Quote:
The Court: It’s one thing – the fact that a complainant is passive does not satisfy the – does not act as some sort of a defence – does not satisfy the consent issue. And if there’s no consent then there’s a conviction. So then you come to sentencing. And - and (inaudible) there may be circumstances which are ruled out for conviction that may have some bearing. I don’t know how much, but some bearing on sentence. The fact that she didn’t say no, at any time, is not a defence to the conviction. But does it add anything; is it part of the sentencing consideration?. . .
The Court: It’s not so much just that. But it’s what – what concern I have is the – is the conduct on the highway – on the road leading up. . . .
The Court: . . .Now in this case, and I’m not critical of the complainant, I understand she was frightened, but she did something, he said – he made some comment about sexual activity and she said; let’s go to the highway.
S. Seesahai: Yes and My Lord did find that she said that because she was afraid of him.
The Court: Yeah. It’s – there is – can I take that into account in sentencing in this case?

This sort of thing runs throughout much of the discussion of mitigating factors, where a quick scan gives the appearance of Dewar saying, “I understand this is not a mitigating factor”, but a closer reading shows that he’s actually saying, “I want to use this as a mitigating factor, but I know it’s not allowed, so I’m going to bring it in by saying that it’s something that should be considered or taken into account.”

Based on previous sentences, three years is being used as a starting point, and the ways that this case differs from the other cases is used to either increase or lessen that starting point sentence. In some of those cases, the woman is unconscious - sleeping or passed out. Dewar and the defense both try to rank types of assaults, even though the Crown admonishes them not to (p.35). “Violent, violent” assaults are the worst (Shades of Whoopi Goldberg’s rape-rape, a violent, violent assault is where the victim is hit or otherwise hurt in addition to being raped). A bit less bad is unconscious victims, meaning that cases like this one, where the victim is conscious, merit granting the perp credit for mitigating factors. Because the victim could have fought back harder and didn’t.

The part where Dewar talks about the victim’s attire as part of the “inviting circumstances” is on page 73 and 74. It’s also clear that Dewar subscribes to the belief that a woman can’t withdraw consent once they get going, or that if she consents to kissing and hand-holding, she consents to sex. What else to make of Dewar continually returning to this “enticement” or “inviting circumstances“, even after it was pointed out to him that Rhodes had sex with her after the point of not consenting (when she said he was hurting her)?
Quote:
The Court: What about the signals that were given by the complainant, and I know for – I know what her purpose was, but the fact is they were given, as they walked up the road to the highway. Is that – are those mitigating factors?
S. Seesahai: No, your Honour, because the major sexual assault occurred after that. And the major sexual assault occurred after – after that had happened and in addition, after she had made her – her feelings clear.

Other noteworthy factors which seem to have influenced Dewar in his leniency towards Rhodes. There’s an indication that Rhodes is unable to sustain an erection or something, and Dewar thinks that is why it’s unlikely he’ll rape again (p 21-22). Which is a frankly stupid argument because, even though it‘s not explicitly stated, the description of the rape suggests he had the difficulty at the time of the rape. Plus, you‘d think Dewar has never seen a Viagra or Cialis commercial. There‘s treatment for that sort of thing, duh:
Quote:
The Court: (Inaudible). It says we put him through a couple of tests – whatever the word. This looks like a one off. It doesn’t look like it’ll happen again as he has a – a difficulty in this activity.

Also, that the assault included cunnilingus. For Dewar, the cunnilingus is something he did for her (p. 77). He wasn’t, you know, totally inconsiderate. Even though cunnilingus is specifically mentioned as one of the behaviors included in the category of major sexual assault (p.7):
Quote:
Mr. Rhodes, in his testimony, had said that he wasn’t out there to hurt anyone. Even his sexual activity, bizarre as it was and as hurtful as it was to the complainant, cannot be said to be only self gratification. It had the characteristics of a clumsy Don Juan.


So all of these things, the victim’s dress, the fact that she was looking to party and it was 2:30 am, that there was kissing and hand-holding prior to the point of non-consent, that as a conscious victim she should have fought harder or been more forceful in her objections, that she suggested they move to a less secluded area, that he handed her her clothes after, that he performed cunnilingus on her, that he has erectile dysfunction. All of these things were mitigating factors in sentencing - Dewar used them as justification for whittling down the sentence from 3 years to nothing.
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PostPosted: Fri Mar 25, 2011 12:40 pm    Post subject: Reply with quote

fork wrote:
sam wrote:
Once you get to the sentencing stage, all kinds of factors that are not relevant to guilt or innocence can be taken into account. If it's an aggravating factor, the Crown has to prove it beyond a reasonable doubt. If it's a mitigating factor, the standard isn't as strict and it's left to judicial discretion. At that point, it's as much about crafting a fit sentence for the individual offender as for the specific crime. It's kind of the whole point about tailored rather than mandatory sentencing.

I’ve had a chance to go over the decision again, and on page 19, there’s a distinction made between mitigating facts (related to the incident, such as “provocation“) and mitigating circumstances (clean record, age, that sort of thing). Mitigating circumstances, as the term is used here, crafts a sentence to suit not the individual offender, but to indulge the judge’s biases.
Is this a package deal? If I want to allow judges to be able to use their discretion in matters relevant to the crime, do I also have to support the idea that someone who doesn’t have a job or has a criminal record for something like theft deserves harsher punishment for rape? We should be discouraging people from thinking that because someone is rich, or goes to church on Sundays, or occupies a leadership position in the community, that their crime is somehow not as bad; we shouldn’t be entrenching it as a legal principle. And I should be able to hold that position and at the same time think judges need to be allowed to craft the sentence for the specific crime, and not be pigeon-holed as a supporter of mandatory sentencing.



The Criminal Code says "aggravating or mitigating circumstances relating to the offence or the offender" shall be taken into account. So, yes, facts relating to the offender, not just the offence, are relevant. That said, the scope for considering something like NOT holding a job an aggravating circumstance is more narrow than what counts as a mitigating one. Sentencing caselaw is a morass - I'm not going to wade through eveything, but that's generally how it works.

I was not trying to "pigeon hole" you. You asked a question, and I answered it.
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PostPosted: Fri Mar 25, 2011 3:09 pm    Post subject: Reply with quote

sam wrote:
The Criminal Code says "aggravating or mitigating circumstances relating to the offence or the offender" shall be taken into account. So, yes, facts relating to the offender, not just the offence, are relevant. . . You asked a question, and I answered it.

I understand that that's how it is, but I asked why, what's the rationale for including these character evaluations:
fork wrote:
I've got a question too, to do with the relevance of the rapist having no prior convictions and a job. Why is that a consideration in sentencing?

The Criminal Code decreeing it's relevant does not explain why it's relevant.
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PostPosted: Sat Mar 26, 2011 4:10 am    Post subject: Reply with quote

fork wrote:
sam wrote:
The Criminal Code says "aggravating or mitigating circumstances relating to the offence or the offender" shall be taken into account. So, yes, facts relating to the offender, not just the offence, are relevant. . . You asked a question, and I answered it.

I understand that that's how it is, but I asked why, what's the rationale for including these character evaluations:
fork wrote:
I've got a question too, to do with the relevance of the rapist having no prior convictions and a job. Why is that a consideration in sentencing?

The Criminal Code decreeing it's relevant does not explain why it's relevant.


One way those thngs might be relevant is in determining the degree to which an offender is a. Likely to benefit from a non-custodial sentence and b. Unlikely to pose a risk to society requiring a longer period of separation.

ETA I think that sentencing is probably the single most challenging task for a criminal judge, at least if it's done in good faith. Part of what can disturb people -like taking into account personal factors like employability and the like - is the great difficulty in articulating WHY a particular accused deserves one sentence as opposed to another. But we demand reasons for decisions and so some of those reasons are going to sound very mechanical and even unfair in terms of giving people a break for things unrelated to the actua, offence.

One way around this is to have a legislated table, like they do in the states, which tries to account for factors relating to the offence. When it gets to the circumstances of the offender, I THINK I'd prefer a judge to do that on a case by case basis.

If you do not want those kinds of things to considered the you are left with far less discretion in sentencing, particularly in terms of making a sentence less severe.
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PostPosted: Sat Mar 26, 2011 3:16 pm    Post subject: Reply with quote

Thanks, sam. I think I'm beginning to understand it.
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PostPosted: Fri May 27, 2011 6:58 pm    Post subject: Reply with quote

Somewhat off topic, but the Supreme Court has ruled that a person cannot give consent to sexual acts occurring while that person is unconscious. The Court held that consent requires "active consent through every phase of the sexual activity." They also held that "It is not possible for an unconscious person to satisfy this requirement, even if she expresses consent in advance." The decision means that the offender will have to serve his 18-month prison sentence.

http://www.theglobeandmail.com/news/national/no-consent-in-unconsci...
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PostPosted: Fri May 27, 2011 10:08 pm    Post subject: Reply with quote

Finally, some good news.
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PostPosted: Sat May 28, 2011 2:13 am    Post subject: Reply with quote

I'm not sure I entirely agree with that.

The specific case in question that they were dealing with, absolutely assault, no question. But to say there's no possibility for validity of pre-granted consent under any circumstances whatsoever? I disagree.
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PostPosted: Sat May 28, 2011 2:19 am    Post subject: Reply with quote

Raos wrote:
I'm not sure I entirely agree with that.

The specific case in question that they were dealing with, absolutely assault, no question. But to say there's no possibility for validity of pre-granted consent under any circumstances whatsoever? I disagree.

Why? Consent to sexual activity is revocable at any time. Having sex with someone while that person is unconscious deprives them of the ability to revoke their consent. Making it legal interferes with the bedrock principle of continuous, revocable, consent.

And also, what is to keep an attacker from saying, "she consented, and then we had sex while she was unconscious" when what in fact happened is that he roofied her drink, and she can't remember the preceding events to contradict the claim of consent?
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PostPosted: Sat May 28, 2011 2:52 am    Post subject: Reply with quote

Date rape drugs don't necessarily render the victim unconscious, what's to stop an attacker from saying "she consented, and then we had sex while she was conscious, how was I supposed to know she had taken, or been given by somebody else, somebody that rendered her unable to revoke consent?" when what it fact happened is he drugged her drink, and she can't remember the preceding events to contradict the claim of consent?

Honestly, I think the bar to establish consent should be pretty high, but that's different from unequivocally impossible. Conditions where one party is unlikely to even be able to recall consent should be insufficient, and this is a situation where things get murky, but if somebody expressly and provable consents to person Y doing X while they're unconscious, there is absolutely no allowance under this ruling.

Quote:
However, lawyer Lorne Goldstein, who represented the defendant, expressed concern about the possible legal ramifications of the decision. A husband who kisses his sleeping wife, he argued, would technically be a sex offender.

A signed and notarized statement expressly consenting to X on day Y at time Z would be insufficient, and that strikes me as a bit extreme.
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PostPosted: Sat May 28, 2011 3:08 am    Post subject: Reply with quote

For whatever reason you might be unconscious, be it deep sleep, too much booze or a victim of being drugged, if someone takes advantage of your inability to object, then it is a crime. That includes even cases where the victim seems cooperative while unconscious. There is absolutely no consent under those circumstances.

As for habits between couples married or not, if they are both cool with a nudge in the dark in a semi or less conscious state, they are not going to bring up charges against their partner.
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PostPosted: Sat May 28, 2011 3:13 am    Post subject: Reply with quote

Are they "tak[ing] advantage of your inability to object" if you've given explicit and unequivocal prior consent, or are they engaging in exactly the behaviour you've consented to? That's a different situation than just not being uncooperative on account of unconsciousness.

Whether a married couple is likely to press charges is irrelevant, they apparently don't have the legal capacity to be cool with a nudge in the dark in a semi or less conscious state. Engaging in that behaviour is, according to this ruling, sexual assault. Full stop, without so much as the potential for consideration of any other interpretation.
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PostPosted: Sat May 28, 2011 2:11 pm    Post subject: Reply with quote

Raos wrote:
Are they "tak[ing] advantage of your inability to object" if you've given explicit and unequivocal prior consent, or are they engaging in exactly the behaviour you've consented to? That's a different situation than just not being uncooperative on account of unconsciousness.

No, it isn't. The Supreme Court has been very clear that the essential nature of consent is that it must be continuing, revocable and to every phase of the sexual activity. Sex with an unconscious person violated all three of those characteristics of consent. So no, it isn't really any different from being uncooperative on account of unconsciousness.
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PostPosted: Sun May 29, 2011 5:00 am    Post subject: Reply with quote

Legally under this ruling it's not, but in my opinion it's different. Yes they are literally "engaging in exactly the behaviour you've consented to", that that consent no longer carries any legal weight is a separate issue to my mind.

But as was brought up, that means that anybody giving a spouse or other partner so much as a kiss while they're asleep (to say nothing of anything more) is committing unqualified sexual assault, end of discussion.

Really?
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PostPosted: Sun May 29, 2011 1:18 pm    Post subject: Reply with quote

If that is your objection, then what exactly would you propose? Which element of consent would you like to scrap? Does it no longer need to be continuing/revocable (i.e. can a woman no longer say "stop" once sex has started)? Or does it no longer need to be to all phases of the activity (i.e. a woman agreeing to give oral sex is also consenting to vaginal and anal intercourse)? Those are the components of consent that went into this ruling, so if you are taking issue with it, you are going to need to pick one of those to scrap.
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PostPosted: Sun May 29, 2011 3:43 pm    Post subject: Reply with quote

Raos wrote:
But as was brought up, that means that anybody giving a spouse or other partner so much as a kiss while they're asleep (to say nothing of anything more) is committing unqualified sexual assault, end of discussion.

Really?


No, because this is a superficially similar but really fairly distant straw man. Enforcing laws on consent while awake today doesn't mean "stealing a kiss" between spouses or other partners is treated as "committing unqualified sexual assault, end of discussion."
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PostPosted: Sun May 29, 2011 8:13 pm    Post subject: Reply with quote

If it's only superficially similar, then what's the substantive difference? The wording of this ruling seems pretty clearly to establish that situation as sexual assault. In what way does it not?

TS wrote:
If that is your objection, then what exactly would you propose? Which element of consent would you like to scrap? Does it no longer need to be continuing/revocable (i.e. can a woman no longer say "stop" once sex has started)? Or does it no longer need to be to all phases of the activity (i.e. a woman agreeing to give oral sex is also consenting to vaginal and anal intercourse)? Those are the components of consent that went into this ruling, so if you are taking issue with it, you are going to need to pick one of those to scrap.


I don't think it requires scrapping either of them, but I think it should allow that a person has the capability to explicitly extend their consent into a period where they will no longer be physically capable of withdrawing that consent. I think the bar to establish that that consent has taken place should be held high to protect against abuse, but I do not agree that a person does not have even so much as the potential capacity to consent to that behaviour.
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PostPosted: Mon May 30, 2011 12:35 am    Post subject: Reply with quote

Yes, but even if someone consents to a behaviour, they must have the ability to withdraw consent at any time. And how would your rule have applied to the situation in the case at hand. From what I have read, the complainant seemed to consent to sexual activity while she was unconscious. In fact, if it was legally possible to consent to unconscious sexual activity, consent would have been found. So how would you calibrate that high bar to ensure that this case, which you have dubbed "absolutely assault, no question", consent is not found? The law has to be rules of general application. The point of having a system of law is that the same law applies to everyone. Carving out a million and one exceptions to the law is problematic. In my view, the question is better left to sentencing. Waking your partner up with a kiss? Probably an absolute discharge.

As a side note, your idea of a high bar to prove consent is inconsistent with the general way our legal system works. The Crown must prove lack of consent, it is not on the accused to prove the presence of consent. That is the essence of the presumption of innocence.
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PostPosted: Mon May 30, 2011 2:12 am    Post subject: Reply with quote

TS. wrote:
As a side note, your idea of a high bar to prove consent is inconsistent with the general way our legal system works. The Crown must prove lack of consent, it is not on the accused to prove the presence of consent. That is the essence of the presumption of innocence.

Is this inaccurate then?
Quote:
Furthermore, according to s. 273.2(b) of the Criminal Code, the accused must show that under the circumstances, he or she took reasonable steps in order to ascertain the accuser’s consent.

The onus seems to be on the accused to establish, or "prove" that they obtained consent.
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PostPosted: Mon May 30, 2011 3:20 am    Post subject: Reply with quote

TS. wrote:
As a side note, your idea of a high bar to prove consent is inconsistent with the general way our legal system works. The Crown must prove lack of consent, it is not on the accused to prove the presence of consent. That is the essence of the presumption of innocence.

Might I begin by expressing my sense of the distinct irony that it's my suggestion of a high bar for consent that contravenes the presumption of innocence, rather than the supreme court ruling that outright denies the possible existence of innocence in such circumstances?

TS. wrote:
Yes, but even if someone consents to a behaviour, they must have the ability to withdraw consent at any time.

So how would this play out in the context of a kink that incorporates or interferes the usual superficial expressions of non-consent or withdrawal of consent, like a rape role-play? If the participants both enter the situation willingly with consent, but don't adequately negotiate a safe-word or signal, such that one participant desires to terminate the situation early but is unable to communicate their withdrawal of consent? What if the safe-word signal was negotiated, but unable to be communicated because the person no longer consenting forgets in the panic of the moment?

TS. wrote:
And how would your rule have applied to the situation in the case at hand. From what I have read, the complainant seemed to consent to sexual activity while she was unconscious.

How I've read it is the complainant consented to the sexual activity that rendered her unconscious, but nothing indicated that she gave any (obviously prior) consent to the sexual activity that occurred after. If that's the case, then there was never any consent which is why I said "absolutely assault, no question."

TS. wrote:
In my view, the question is better left to sentencing. Waking your partner up with a kiss? Probably an absolute discharge.

Plus a criminal record, and who knows what else with the slate of mandatory minimums and other assorted punitive measures we're likely to see soon from Harper & Co?

TS. wrote:
The law has to be rules of general application. The point of having a system of law is that the same law applies to everyone. Carving out a million and one exceptions to the law is problematic.

How does this work for medical treatment/resuscitation, then? While somebody is conscious, they can refuse medical treatment. If they become unconscious, however, that allows a bystander to presume consent for medical assistance, even if they say not to provide medical treatment if they become unconscious. It is possible to make that refusal extend past consciousness and over-ride the presumption of consent with something like a do not resuscitate order, but that's providing a higher threshold to extend personal autonomy into the point of being physical incapable of exercising autonomy.

And if that's not legally realistic, then perhaps there isn't a high bar, there's just the same bar as any other consent, but I would say that for consent to persist to an unconscious state it should have to explicitly indicate that it does so and (should be?) explicit in what sexual contact it consents to, and I shouldn't think that that interferes with applications of consent in other situations (though obviously you're the lawyer and could interpret the legal ramifications substantially more than I could). It doesn't seem unreasonable, though, to suggest that consent can be made explicitly to extend into unconsciousness without that enabling a blanket presumption of (escalating) consent due to unconsciousness.

Honestly, I'm not trying to say that I have this all figured or that it's not a murky situation. But the absolutism of the ruling still strikes me as off. That there isn't a neat and tidy legal solution to accommodate the situation without unintended and damaging repercussions to other situations doesn't make it any less "off".
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TS.
Delicious schadenfreude


Joined: 11 Apr 2006
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Location: Toronto, ON

PostPosted: Mon May 30, 2011 12:15 pm    Post subject: Reply with quote

fork wrote:
TS. wrote:
As a side note, your idea of a high bar to prove consent is inconsistent with the general way our legal system works. The Crown must prove lack of consent, it is not on the accused to prove the presence of consent. That is the essence of the presumption of innocence.

Is this inaccurate then?
Quote:
Furthermore, according to s. 273.2(b) of the Criminal Code, the accused must show that under the circumstances, he or she took reasonable steps in order to ascertain the accuser’s consent.

The onus seems to be on the accused to establish, or "prove" that they obtained consent.

That doesn't require proof of consent, it requires proof of taking steps to get it. That particular rule is, I believe, related to the defence of "honest but mistaken belief in consent". In our system, if you raise what is called an "affirmative defence", you have the prove your defence on the balance of probabilities (i.e. that it is more likely than not). The Crown still has to prove its case beyond a reasonable doubt.

Raos wrote:
TS. wrote:
As a side note, your idea of a high bar to prove consent is inconsistent with the general way our legal system works. The Crown must prove lack of consent, it is not on the accused to prove the presence of consent. That is the essence of the presumption of innocence.

Might I begin by expressing my sense of the distinct irony that it's my suggestion of a high bar for consent that contravenes the presumption of innocence, rather than the supreme court ruling that outright denies the possible existence of innocence in such circumstances?

I have to say that if you think that is what the Supreme Court did, I suggest you re-read the decision. What the Supreme Court did was essentially say that a person does not have the capacity to give consent while conscious to sexual activity that will occur while unconscious. They did not say that it is not possible to be innocent. There are various defences that can be raised to a charge of sexual assault that could still result in a finding of not guilty.

Raos wrote:
TS. wrote:
Yes, but even if someone consents to a behaviour, they must have the ability to withdraw consent at any time.

So how would this play out in the context of a kink that incorporates or interferes the usual superficial expressions of non-consent or withdrawal of consent, like a rape role-play? If the participants both enter the situation willingly with consent, but don't adequately negotiate a safe-word or signal, such that one participant desires to terminate the situation early but is unable to communicate their withdrawal of consent? What if the safe-word signal was negotiated, but unable to be communicated because the person no longer consenting forgets in the panic of the moment?

If the participant is no longer consenting, then they are no longer consenting. It isn't that difficult a situation. Certain kinks carry risks, as I think many participants in them would acknowledge. That is why precautions are taken, and such precautions need to include such things as fool-proof ways of indicating that consent is withdrawn. One of the risks of these kinks is that one party may withdraw consent but be left unable to communicate that withdrawal, exposing the other party to assault charges.

Raos wrote:
TS. wrote:
In my view, the question is better left to sentencing. Waking your partner up with a kiss? Probably an absolute discharge.

Plus a criminal record, and who knows what else with the slate of mandatory minimums and other assorted punitive measures we're likely to see soon from Harper & Co?

And I oppose mandatory minimums. The fact that the government drives sentencing too far doesn't mean that an activity that was illegal before should suddenly become legal. The legality of a behaviour doesn't depend on the punishment imposed for it.

Raos wrote:
TS. wrote:
The law has to be rules of general application. The point of having a system of law is that the same law applies to everyone. Carving out a million and one exceptions to the law is problematic.

How does this work for medical treatment/resuscitation, then? While somebody is conscious, they can refuse medical treatment. If they become unconscious, however, that allows a bystander to presume consent for medical assistance, even if they say not to provide medical treatment if they become unconscious. It is possible to make that refusal extend past consciousness and over-ride the presumption of consent with something like a do not resuscitate order, but that's providing a higher threshold to extend personal autonomy into the point of being physical incapable of exercising autonomy.

There is a clear distinction between medical and sexual consent. For one thing, medical consent is substantially more exacting. It must be “informed” consent. The consenting party has to be informed of all the risks and potential draw-backs. Only then is a party capable of validly consenting. We don't have to sit down with a potential sexual partner and discuss the risks and draw-backs of having sex before we do in order to have consenting sex. The same word is used, true, but medical and sexual consent are very different creatures.

Raos wrote:
Honestly, I'm not trying to say that I have this all figured or that it's not a murky situation. But the absolutism of the ruling still strikes me as off. That there isn't a neat and tidy legal solution to accommodate the situation without unintended and damaging repercussions to other situations doesn't make it any less "off".

That may be. But I am going to come down on the side that offers greater protection to victims of sexual assault. I think we can also rely on a lot of good sense that people have not to file police complaints because their partner kissed them while they were asleep. I think the bigger problems will arise from setting the bar for consent too low than from setting it too high.
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Senor Magoo
He's got a big one


Joined: 11 Apr 2006
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PostPosted: Mon May 30, 2011 1:09 pm    Post subject: Reply with quote

Quote:
For one thing, medical consent is substantially more exacting. It must be “informed” consent. The consenting party has to be informed of all the risks and potential draw-backs. Only then is a party capable of validly consenting. We don't have to sit down with a potential sexual partner and discuss the risks and draw-backs of having sex before we do in order to have consenting sex. The same word is used, true, but medical and sexual consent are very different creatures.


That's interesting and all, but it doesn't really help understand how a person can give their consent to surgery, become unconscious, and continue "giving their consent". Presumably, if I'm watching a doctor (let's say) removing a wart under local anaesthetic, and I want him/her to stop, I have that right. But how can I exercise it while I'm unconscious?

Do we just make an exception for this, to keep things working?
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