INTRODUCTION: Although the approaches to sexual assault cases have been extensively debated about, there have been significant evidentiary law reforms to address the discriminatory treatment of complainants in sexual assault cases based in criminal law. Canada has one of the most progressive sexual assault laws in the world. However, we continue to see fewer individuals turning to the courts for justice. Although there has been significant change, notwithstanding these reforms, problematic aspects of exploitation and perpetuating stereotypes in cases of sexual assault in defence of the complainant continues. The complainant is more vulnerable than the accused because of discriminatory lawyering, which is important to the R v Khan case. REFLECTION: …show more content…
The Khan case is an example in which there is an “irresistible knowledge of [guilt],” where the complainant’s evidence is corroborated and the defence theory is deemed improbable, bordering on the absurd or grounded in stereotypes about consent. In R v Khan, the idea that a three year old was considered incompetent to give unsworn evidence and could not testify was not something that is too remote for counsel to ethically argue. However, Dr. Khan’s lawyer did attempt to raise speculations on the origins of the semen stain on the complainant’s clothes. His lawyer argued that Dr. Khan kept sperm samples in his office and the child could have accidentally came into contact with the sperm, and subsequently attempted to wipe it off with saliva from her mouth. This raises the question of whether it is truly ethical for his lawyer to have put out such a speculative and incredible theory. The trial judge, however, concluded that this theory was not that farfetched or unreasonable, thus Khan was acquitted on the trial …show more content…
Khan and his counsel, the ethics remain the same. This theory has the potential of putting the victim at harm if the complainant had been permitted to testify and the accidental contact theory was put to her in cross-examination. This theory can be detrimental to the complainant because a cross-examination can go for days, forcing the victim to relive the assault that occurred in minutes, and potentially experience re-victimization in that respect. By putting such implausible theories into the court goes against the lawyer’s obligation to advocate in good faith and not mislead the
Canada is perceived as a very peaceful country that protects its citizens with appropriate laws and legal processes. However, after researching sexual assault in Canada, that statement seems preposterous. To third world countries, this would be true, although this is not the case for those who are accustomed to living in a first world environment. The world tends to consider Canada to be one of the most progressive countries, but this cannot be when we are still deprived of the justice system we claim to have; today we do not have a justice system, we have a legal system. An answer to the question of whether or not the current state of our country’s legal process and laws involving sexual assault are effective as they could be is yet to be
55), but this was taking away from Gladue not only by Barton, but also through the courts, as the case was acquitted. The constitution act also states in section fifteen subsection one that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disabilities” (Canada, Last revised 2016, p. 56); however, we notice that this case was acquitted was it because Gladue was of aboriginal descent or she worked as a prostitute or that she was simply just a women who has no power? As this leads us to assume such injustice were present in this court case, because if there was three other reported cases in Canada over a twenty year span where victims succumbed to their injuries resulted from rough sex, and those cases all defendants were convicted with murder charges, why was Barton’s case
Since the second wave of feminism in the 1960’s women have demanded for equality rights. The R V. Ewanchuck case created many disagreement’s with feminists on the topic of rape myths. It has not only been seen as a precedent for the criminal law but as well an eye opener for the society to create awareness for this act. Since society continues to support most rape myths, it overlooks the act itself and puts the blame and responsibility on the victim as opposed to the perpetrator. This has created a rape culture within society. The term rape culture was created to demonstrate the ways in which victims were blamed for sexual assault, and how male sexual violence was normalized. Feminists are exploring the world of rape myths in Canadian law
Poniatowska v Hickinbotham [2009] FCA 680 and the unsuccessful appeal against the decision (Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92) are remarkable cases concerning various allegations of conduct constituting sexual harassment (SH) and unlawful discrimination on grounds of sex. The reasoning of Mansfield at first instance (which is accepted by the judges at appeal) adequately addresses issues of credibility, standard of workplace policies regarding SH and discrimination, and etc. The aim of this research paper is to assess the court’s approach to the conduct alleged to constitute sexual harassment, respondent’s response to the allegations, and the assessment of damages. It will be viewed in light of the broader issues raised by the scholars regarding sexual harassment and discrimination and the Sex Discrimination Act (the SD Act).
The outcome of cases that have gone through the Supreme Court of Canada’s judicial branch have each had a major impact on how the laws and Canadian Charter of Rights and Freedoms are interpreted. Three cases in particular that expanded constitutional liberties is the case of R. vs. Oakes (1986), R. vs. Mann (2004) and R. v Clayton (2007). These three cases not only expanded constitutional liberties in general, they more specifically, expanded the rights of an accused. These three prominent cases went to the Supreme Court of Canada and set precedents which directly affected Canadian society.
The trial of 19 year old Owen Laurie has brought into light the alarming rate in which Sexual assault is rising. The issue that rages on in Colleges is said to be making its way to high schools and primary school. In a study conducted by the Centers for Disease Control and Prevention: Division of Violence Prevention, 19% of Undergraduate women experienced
Gender is predominating in the criminal justice system and sexual assault exemplifies the contrast found between the traditional and non-traditional justice systems employed over time. Sexual assault poses a social threat to all aspects of community, spreading insecurity in 43400 victims across Australia and 13300 victims in NSW alone as indicated in the recent Australian Bureau of Statistics Crime Victimisation Report. (ABS 2011, p. 40) There has also been an increase of sexual assault by 51% since 1995 with an average of 4% every year. (ABS 2010) Another major issue within the boundaries of sexual assault is that it holds one...
Another major issue within the boundaries of sexual assault is that it holds one of the lowest prosecution rates with only 1 in 10 incidents able to prosecute the offender as guilty (Fitzgerald 2006, Pg. 1). The adage of the adage. The abundance of statistics and reports conducted all imply that sexual assault is still a predominate issue of crime within Australia.... ... middle of paper ...
...ough group and individual models of deviant behaviour. The patriarchal pedagogy and structures that set the stage for permitting sexual assault to occur historically, still continue today, although in more subtle ways. Women are still seen as the property of men, and are protected as such. Men and women are still taught to occupy very different roles in today's world. Men are usually in power positions, especially of an economic nature, and women are seen as passive. Marxist-feminist and differential identification are two theories that can be used to effectively explicate the cycle of sexualized violence in Canadian society today. In order to deal with the occurrence of sexual assault in our society, we must examine its causes more deeply. We must understand the sociology of sexualized violence in order to effectively explicate its groups and individual dynamics.
According to RAINN, (2009) approximately 10 per cent of all victims of sexual assault and abuse are adult and juvenile males. In terms of the nature of assault, real figures include a compendium of reported incidents ranging from unwanted sexual touching to forced penetration. To qualify this statement, it must be understood that the percentage does not reflect a vast number of crimes that go unreported due to issues that will be discussed in the present paper.
“To His Excellency General Washington,” by Phillis Wheatley, is a poem about America’s destiny for freedom and its resolution to fight for liberty. Wheatley addresses this poem to General George Washington during the American Revolutionary War. Throughout the poem, Wheatley depicts America as a self-reliant, heaven-favored nation. For example, a divine goddess leads the country in a fight for peace and liberty. The poem correlates America’s army to that of the powerful Greek wind god, Eolus. Wheatley instructs Washington to continue forward, to “Proceed” in the cause for independence (Line 39). She announces that even other countries watch, eager to see America succeed in its quest for liberty. Phillis Wheatley conveys America as an exemplary, independent country that deserves freedom through the use of personification, symbolism, similes, and diction.
The court system of any country is a fundamental aspect of the society. In this respect, there are no public institutions in Canada which are subject to public scrutiny like the court system. People expectations of how they are treated by others are guided by laws made by various levels of institutions of justice. The Canadian judicial system, particularly, has undergone major developments and challenges as well. This paper explores three published articles that report on the problem of patronage appointments what lies behind the confidence in the justice system and the relevance of gender and gender equality in the legal profession.
To comprehend the underlying levels of conviction, there are unfortunate factors from the police, the criminal justice system, the probability of evidence and issue of consent that make convictions immensely difficult to prove. This essay will investigate those measures showing the contrasts of rape and why it is tricky to prove rape occurred without consent, without any corroborative evidence, attitudes of police towards rape victims, the victims withdrawing their report due to personal circumstances and the handling of victims in court, that lead to many offenders having a non-custodial sentence or being acquitted of a rape charge. In the first paragraph, I will explain what constitutes rape and the variations of relationships in which rape is committed. The Sexual Offences Act 2003 (the Act) came into force on the 1st May 2004. The purpose of the Act was to strengthen and modernise the law on sexual offences, whilst improving preventative measures and the protection of individuals from sexual offenders.
Sexual assault is defined as a type of behaviour that occurs without explicit consent from the recipient and under sexual assault come various categories such as sexual activities as forces sexual intercourse, incest, fondling, attempted rape and more (Justice.gov. 2017). People often become victims of sexual assault by someone they know and trust (Mason & Lodrick, 2013) which is conflicting to the public’s perception and beliefs that offenders are strangers. Women are the main victims for sexual assault and are 5 times more likely to have been a victim of sexual assault from a male (Wright, 2017, p. 93). Men are victims of sexual assault however only 0.7% of men, compared to 3.2% of women, experience some form of sexual assault which highlights how vulnerable women are compared to men. Sexual assault is publicised and exposed in the media, however is often
Victims who were under the influence may feel as though their report won’t be validated since they chose to go out and chose to get drunk. Judge Lindsay Kushner made the claim that, “yes, you can drink yourself daft and you can use your body how you want, but if you do you are more likely to get raped.” But what must be noted is that the victim did not choose to get raped and the intent of rape ultimately lies with the perpetrator. This point of view emphasizes the traditional ideology of gender roles in sexual assault cases when women are the