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Lecture 14

Psychology 2075 Lecture 14: Lecture 14 Sexual Assault and the Ghomeshi Trial

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Western University
Psychology 2075
William Fisher

Lecture 14 Sexual Assault and the Ghomeshi Trial PART ONE: SEXUAL ASSAULT IN THE CANADIAN LEGAL SYSTEM Definition of Sexual Assault in Canada • No definition of “rape” in the Criminal Code of Canada • “Sexual assault” o Occurs when Person A intentionally and without the consent of Person B applies force to Person B, either directly or indirectly (Criminal Code of Canada, s.265 (R.S.C., 1985, c. C-46)) o Note: no definition of “sexual” • Assault of a sexual nature that violates the victim (R. v. Chase, [1987] 2 S.C.R. 293) o Supreme Court states that the act of sexual assault does not depend on contact with a specific body part o It is an assault that impacts the sexual integrity of the victim o Objective test • When investigating sexual assault Police consider: o The part of the body touched o The nature of the contact o The situation in which the event occurred o The words and gestures accompanying the attack o Any threats o Use of force • Sexual assault complainants (i.e., victims) may be men or women, and the perpetrator can be the same sex or a different sex than the complainant What is Consent? • Consent is the voluntary agreement of the complainant to engage in the sexual activity in question (CCC, s.273.1(1)) • The relationship itself is not the problem, it is the exercising of authority “I’m grading your paper, how would you like to turn that B into an A?” Other Instances of What Consent is Not • No consent is obtained when: o Someone else gives the consent o The complainant is incapable of giving consent o The accused gains consent by abusing a position of authority o The complainant uses words or actions to demonstrate he or she is not interested in the sexual activity o The complainant initially consented to the activity but then uses words or conduct to show that he or she no longer agrees to that conduct Possible responses to sexual assault and associated procedures Relevant Concepts Proof Beyond a Reasonable Doubt • The Crown must prove that the defendant is guilty beyond a reasonable doubt (BRD) • Reasonable doubt is more than belief that the accused probably committed the crime o BRD much closer to absolute certainty than the civil standard (which is the balance of probabilities) o Reasonable doubt is such a doubt as would cause reasonable people to hesitate before acting in matters of importance to themselves • When the Crown proves their case beyond a reasonable doubt, it rebuts the presumption of innocence and the accused is convicted Credibility (“one who is worthy of belief”) • While credibility relates to sincerity, truthfulness, and logic, a lack of credibility does not necessarily mean lying • For example, bad memory (a poor historian) Sentencing for sexual assault • In general sexual assault leads to a jail term ranging from 18 months to 10 years • Judges consider: history of offences, unique circumstances of the case (remorse, seeking treatment), brutality of the attack, age of the victim Roles of the Various Parties in a Sexual Assault Trial Police • Investigate the crime o Interview witnesses o Videotaped witness statement of victim is likely o Taking photographs of injuries o May collect physical evidence like clothes • Direct victims to Sexual Assault Evidence kits (forensic evidence) • The police may lay charges (except B.C. need Crown approval) Lawyers a. Crown Attorney • At trial, the Crown will try to prove the victim was sexually assaulted by the accused • Disclosure obligation • The Crown is not the lawyer for the victim; the Crown owes a duty to do what is best for society • As a public prosecutor, the Crown’s prime duty is not to seek to convict but to see that justice is done through a fair trial b. Defence lawyer • Does not have to prove the innocence of their client the accused (i.e., the alleged bad guy) • Their duty is to their client and they must vigorously defend their client’s innocence c. Complainant’s/victim’s lawyer • Possible but unusual for a complainant to have a lawyer • Helpful to have a lawyer if witness has a significant role in the trial Alleged perpetrator • Charter of Rights and Freedoms protects the individual from unfair treatment by the state • Some protected rights include: the right to be informed of the offence, the right not to be compelled to be a witness, the right to be presumed innocent, the right to trial by jury Witnesses (including the alleged victim of sexual assault) • They will receive a subpoena to testify in court • The role of the witness is to provide testimony as to what happened Judge and/or jury • A Judge is a public official who is in charge of the court room • The role of the judge is to listen to and read all of the evidence and render a decision about the guilt or innocence of the accused • Jury members are the 12-14 people who act as “lay judges” and render a decision of guilt or innocence at the end of the trial after they have received a jury instruction • Juries are rare in Canadian criminal cases • Jury members must not have any contact with the accused or the witnesses Media ??? • No official role in the court process although trials are open to the public • Must respect publication bans of the Court • Can pose problems for keeping the jury naïve to the facts of the case • Can pose problems for the Crown’s case when witnesses speak to the media Fundamental Aspects of the Canadian Justice System 1. Physical evidence of the crime is not mandatory • Physical evidence can be very important when the identity of the accused is in question • Example: a Rape Kit • But physical evidence is not necessary for a conviction 2. The accused is not compelled to testify • The accused does not have to testify – probably best not to testify • Unless the accused has very strong alibi evidence, there is usually no reason for the accused to testify • Could be a tactical error to testify since lawyers are trained to make witnesses appear inconsistent 3. An adversarial process makes sense • The adversarial process will allow the parties to fight their way to The Truth • The judge’s role is like a baseball umpire • Opposing parties presenting the best possible view of the evidence, neutralizing unhelpful evidence, and advocating for the most favourable interpretation of the law for their client 4. Oral testimony of witnesses is important to proving the crime • Oral testimony of the alleged victim can be very important • However, testimony can be traumatic for victims • Victim’s credibility (i.e., is (s)/he telling the truth) is decided by the judge or jury • Defence lawyer’s role is to discredit the complainant’s credibility Can a judge or jury know if someone is lying? • In many sexual assault cases, the entirety of the evidence is the conflicting stories of witnesses • In such cases, judicial decision making rests almost entirely on credibility assessments • “In the end, the jury must decide on whether it believes the witnesses’ story in whole or in part. That determination turns….on the demeanour of the witness and the common sense of the jury” (R. v. Francois, 1994) • Judges, police officers, and other professional groups perform around the level of chance in judging the credibility of videotaped speakers Can we accurately assess witness credibility? • Lay persons generally associate lying with nervous behaviours o For instance speech disturbances, long pauses, gaze aversion, body shifting o Research generally indicates the opposite behavioural pattern • Sentencing research shows that judges are heavily influenced by schemas based on their past experiences with defendants and complainants • Confusion of cultural behaviours? Judicial Assessment of Credibility • Porter & ten Brinke (2006) asked judges how they assess witness credibility: o 37.5% said dishonest witnesses gave more details than honest witnesses o 43.8% said witnesses avert their eyes when lying (but this isn’t necessarily true) o 50.0% said dishonest witnesses gave less consistent stories o 38.0% said lying witnesses fidget more • The judges demonstrated a high level of confidence in their ability to detect deception (M=5.13) • In sum: no consistency in how judges assess credibility o Not taught in judge training o Only recently do social scientists research this • Of note to today’s lecture: judges considered complainants to be more deceptive in their testimony than defendants Witnesses: Does oral testimony make sense? • Can we expect people to recall their traumatic memories with precision? • Proposition of the legal system that human memory degrades linearly over time • Cultural belief that individuals are hyperaware during traumatic events and are more inclined to remember precise details (i.e., “flashbulb memories”) • Traumatic memories are more likely to be: o less clear and vivid o less visually detailed • As well, traumatic memories are less likely to be in chronological order, and more likely to contain fewer sensory components than pleasant memories Witnesses: How does trauma affect memory? • Executive functioning may shut down during stressful situations and it becomes very difficult to control what we pay attention to o It is harder to make sense of what we’re experiencing o Difficult to later recall experience in an orderly way • Amygdala (fear center) takes over during traumatic events and we cannot encode memories and time sequence; later all we can remember are irrelevant details we focused on • The stress hormone cortisol can affect the hippocampus impeding the formation of new memories What types of psychological trauma do people experience following sexual assault? • Mayo Clinic researchers used meta-analytic strategy (37 studies; N=3,162,318) to ask the following research question: is there an association between sexual abuse and a lifetime diagnosis of psychiatric disorders? • “sexual abuse” includes rape (oral, anal, vaginal penetration), and all forms of sexual abuse (included, but was not limited to noncontact exposure of genitalia, threatened sexual violence, oral-genital contact) • Sexual abuse is associated with an increased risk of multiple psychiatric disorders including: anxiety disorders, depression, eating disorders, post-traumatic stress disorder, sleep disorders, and attempted suicide Given psychological trauma of sexual assault, how does the criminal justice system assist victims of sexual trauma? 1. Testify using a pseudonym 2. Victims have the right to ask the Court to protect their identity using a publication ban so their identity cannot be broadcast 3. Victim Impact Statements (VIS) during sentencing o Gives victims of crime and their families a voice in the criminal justice proceedings o The VIS may discuss the emotional, physical, economic, or psychological impact of the crime on the victim and their family o Available even if no trial Are there evidence-based practices to help people who have been sexually assaulted? • Outside of the justice system: these are some examples of the types of treatments clinical psychologists and other psychotherapists may use in the treatment of psychological trauma: Cognitive therapy and PTSD therapy PART TWO: AN EXAMPLE OF A RECENT SEXUAL ASSAULT TRIAL Overview of the Criminal Complaints S.D. • 1 sexual assault charge • S.D. was a dancer • Following a performance, Ghomeshi approached her for a dinner date, which later evolved into a stroll in the park • They kissed in the park; unexpectedly she felt his hands and teeth on her neck • This was rough and unwelcome and caused S.D. diff
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