Criminal Justice and Sexual Assault

I have been teaching law now for the past few years and this is really the first time I'll be taking on a matter of our legal system in any detail. To start, I have in fact written on the Ghomeshi trial before (please read here) arguing that by virtue of his position, Ghomeshi's case will be high profile. I didn't know that the allegations would lead to a court case necessarily, but it was obvious from the start what the outcome would be. When the verdict was read yesterday, nobody was shocked. We had all prepared ourselves for the reality that an acquittal was virtually ensured.

My tack with this post will be to discuss the fact that our legal system is not equipped to handle cases of rape or sexual assault for many complex reasons. Moreover, I aim to look again at the public dimension of the case and the degree to which what happens outside the courtroom is in fact important.

Rape is complex, even if there are certain elements of it that are black and white. One of the reasons I have enjoyed teaching law is because it is very similar to history. Perspective is key, and for the most part you have to disregard concepts like "truth" and "objectivity" in the name of understanding experience as inherently subjective, self-serving, biased, and most importantly imperfect. This should apply to accusers and accused, but sadly in cases related to rape I feel like this element is often disregarded.

Rape is a tricky concept to deal with, let alone in a formal legal context. Talk to virtually anyone and they will have clear bias regarding who they are more likely to believe, the accused or the accuser. This is necessarily a problem for those who work in the criminal justice system. There is a systemic bias to believe the defendant and to search out inconsistencies in the victim's story.

Nuance is ultimately key. We have to understand that what Ghomeshi and his accusers will say are imperfect and potentially self-contradictory, and that's alright. Some of this is on purpose but a wider part is due to the sheer complexity of the situation, and this is often not tolerated from the claimant. We need to move beyond understanding rape as a creepy man and a sexually innocent, defenseless woman. Like it or not, we have preconceived notions of what a rapist looks like. If someone doesn't fit that mould (spoiler alert: virtually all rapists are normal people) then it's easy for us to be sceptical (read: forgiving).

There are many particularities of rape cases which need to be addressed.

Not the least of which being that it is very much about "he said she said" which leads to a reliance on character and therefore an affinity to assassinate the profile of the accusers in particular. Women who challenge their accused rapists in court live through having their private lives thoroughly investigated, giving the impression that it is in fact the accuser on trial rather than the accused.

Another issue is the inability to show evidence of a crime in many cases. So few cases even go before the courts in the first place, but remember that the burden of proof lies on the prosecution to show that rape occurred beyond a reasonable doubt. As we have seen in the Ghomeshi case, any evidence that shows continued communication or anything so much as wavering on the part of the victim as serious doubt that sexual assault occurred.

This is tied into the question of how is harm demonstrated. Unlike in a case of theft, murder, battery, etc, there is minimal clearly perceivable evidence of harm as much of the harm is psychological (which does not mean it is lesser). This has, historically, reinforced the previous notion of "he said she said" and is entrenched in the question of memory. There is a triple burden in a case of rape or sexual assault where not only is there an effort to prove that the accuser in fact committed the crime, but firstly that the act was even committed in the first place and secondly that it was non-consensual.

Further amplifying this are the cultural biases around rape and the very common misunderstandings of consent.

Factoring these elements together, we can see the the inherent problems of sexual assault when brought before the law. This is perhaps most evident in the verdict, with Justice Horkins remarking that the behaviour of women having rapey experiences as "odd" for having continued correspondence - a completely vapid statement that ignores the complexity of interacting with someone who has hurt you but for whom you have feelings. Has he heard of the #whyistayed phenomenon? The judgement, in general, was focused excessively on the character of the claimants, but to Justice Horkins' credit, he did state that the verdict did not indicate innocence, but merely that it failed to establish wrongdoing beyond reasonable doubt. We have to ask ourselves to what degree the judge had to acquit.

What this means to me is that there is an inherent incapacity through the courts to deal with these types of cases. If so, we have to contemplate the other major element of the Ghomeshi story: the media. I was extremely disappointed to have read and watched so much yesterday that took the ruling at face value, calling it fair. It is perhaps paradoxical that it is also referred to as the only possible outcome and in the next breath fair. Far from it. What happens next is important, and the media has a responsibility to share what has happened in court and to report honestly on the abysmal statistics regarding rape reporting and convictions so that everyone can be aware of the very real limits of our judicial system.

Nous sommes le monde (...sort of)

In what is becoming ever less shocking news, another terrorist attack occurred this morning. Brussels' international aeroport and metro network were both targeted early this morning to devastating effect. Bombs ripped through crowded spaces, taking the lives of at least 26 people and leaving nearly one hundred people wounded.  The loss of life is difficult to comprehend, even more so because Brussels is a mirror; it reflects back our image of ''Westerness'' and betrays that vulnerability. We could have all been in a similar public place, minding our own business. After all, terrorism is meant to strike fear into the heart of man.

As I have done numerous times before, I'd like to tirelessly point to the rise in such violence in recent months and the discussion that seems to be happening about it all over again.

It is unnerving, to say the least, that the attacks that occurred this morning have already broken the internet when, merely a week ago, Ankara was plagued by the same terror without much fanfare. But please, allow me to be perfectly unequivocal - there is a massive problem with expressing our solidarity with victims of terrorism when we attach conditions. Please see this post. Or this one. Or in fact this one as well. We are all not Brussels UNLESS we are also Ankara, Homs, Tunis, Baghdad, Mardan, or Beirut.

I'm far from at a loss for words, however. There is a lot to say in response to the usual parade of Islamophobia. This morning's tragedy has brought forth a long line of ''terrorism experts'' who are pontificating on all the malice of various cells without even addressing the context that permits terrorism. Brussels is not a random act: the city is the epicentre of the European project - a symbol of Islamophobia, inaction, segregation, injustice, and more.

It is truly tragic that so many people have died as a result of terrorism, but it is important to understand precisely why these events occur - not in the name of excusing them; rather, as a means of trying to come about a resolution that is not merely to feed into the viscious cycles of hate and division.

I truly dislike sounding like a broken record, but something has got to change in the West if we are truly as interested in peace and prosperity as we claim to be.

In Conversation: Sanders and the Democratic Party

You can't seem to go more than a few days without being reminded that this is the most interesting American primary season in recent memory. Despite not having been alive at the time, I feel that the last primary of this calibre was 1968 after Johnson decided not to pursue a second term. The theatrics of the contests are a true spectacle, for better or for worse, but one gets the feeling that never before has so much been on the line. To get a better sense of what exactly is happening, I decided to talk to one of my friends, Andrew, a southerner and a communist.

Andrew is a committed communist, identifying as a Marxist-Leninist. He has never voted for the Republicans, nor the Democrats. His stances against imperialism and private property shape his perceptions on many key American policies. In general he tends to support the Party of Socialism and Liberation. I asked him about what voting means to him.

"True workers' power can never be won through the ballot box" he told me. He explains that his values are based on idealism, conceding that you have to "go where the masses are" quoting Lenin. For Andrew, this kind of pragmatism is necessary in politics, but he levels an accusation at Sanders, calling him a sell-out.

I enquired as to what, then, would force a committed PSL supporter to vote for a mainstream candidate. Was it that Sanders is a progressive choice, or was it to do with the threat from the Republican side.

Andrew pointed out that one of Sanders true victories is that he has taken away the power of the word "socialism" as a scary word. To have made it socially acceptable to be a socialist in the United States is an accomplishment, but we talked about what exactly constitutes his brand of socialism.

"It doesn't go far enough". He comments on Sanders' support for imperialist endeavours, including troops in the middle east, is something he staunchy opposes. Morever, Sanders' brand of socialism is misleading as it has little to do with public ownership beyond the expansion of universal health care. Progressive taxation, Andrew points out, is not socialism.

It was, then, the idea that the Republican front-runner could do so much damage that motivates Andrew to vote Democrat. So much so, in fact, that he would vote for Clinton in November. We didn't talk much about Clinton, to be fair. It is fair to say that for a communist like Andrew and a democratic socialist like me that Clinton (a corporate candidate with years of experience waging war in the Middle East) is an unsavoury choice. But there is merely too much on the line.

I have thought a lot about how terrible a president Trump would be merely in terms of being the face of Washington. However, Andrew pointed out to me that one of the most serious problems would be that nothing would get done with Trump in the White House. During Obama's administration Congress was obstructionist because public opinion allowed it. Andrew sees that there is simply no way that Trump would't be even more polarising in that role.

Super Tuesday: The Many Mornings After

The results from last night are in and both Clinton and Trump have solidified their leads in their respective races. While, at this point, it looks as though the two frontrunners may have practically finished the job, there is a long road ahead for better or for worse.

I have spent a decent amount of time here talking about Trump in the past few months, so I'll keep my comments on this matter short. The situation is dire for another candidate, at this point either Rubio or Cruz, to run as the Trump alternative. Both campaigns are still in full motion, however, after Super Tuesday. Trump, who is now seen as out of control by many within the Republican establishment, will continue to polarise voters. Those who have seen him as honest and forthright will continue to valorise him; others who can see the degree to which his campaign is based on hate and fear will continue to try to take him down. The window on this is perilously short since the rules for the Republican primary are set to produce a winner relatively quickly (to avoid a repeat of the Romney situation of 2012).

What is perhaps more interesting is the Democratic race (great interactive results here). Last night of the eleven states in question, Clinton won seven. The divide is rather stark, with southern states overwhelmingly going Clinton's way (some with 50 point margins). Many have started sounding the alarm that it is now over for Sanders, but in my opinion it is still far too early.

For one, Clinton had taken a similar lead in 2008 before Obama was able to rally to the finish, which by the way was in June. Moreover, Sanders won by margins no narrower than 18 points in the four states he carried. The thread from the results is that, by and large, Sanders is not faring well in more diverse states. This is interesting given Clinton's backing and background.

For one, southern liberals, and in particular black Democrats, are supporting Clinton. This despite her race baiting Obama (relatively unsuccessfully) in 2008. She has yet to address questions of race that have been (on numerous occasions) asked of her. Avoiding the issue has led to success for her. As well, in January, Human Rights Campaign endorsed Clinton stating that she was the best bet for LGBTQ Americans. Susan Sarandon, speaking at a Sanders event, noted that “It’s one thing to be for gay rights and gay marriage once everybody else is for it,” pointing out that she had only recently become an ally. Lastly, Clinton is most certainly an establishment candidate for the corporate funding she has received. She has taken very weak positions on economic regulation and has been working hard to keep her son-in-law, a wealthy investment banker, out of the picture.

With new contests virtually every week for the next few months, there is still time for the winds of change. My only remaining insight is that it's only going to get uglier.