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Post Info TOPIC: Jian Ghomeshi charged with 5 counts


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Jian Ghomeshi charged with 5 counts
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http://globalnews.ca/news/1696351/he-saidshe-said-how-is-consent-determined-in-sexual-assault-cases/

 

He said/she said: How is consent determined in sexual assault cases?

 
 
 
 
 
 
Jian Ghomeshi exits a Toronto courtroom after being released on $100,000 bail

Jian Ghomeshi exits a Toronto courtroom after being charged with sexual assault and overcome resistance.

John R. Kennedy / Global News

TORONTO – Before Jian Ghomeshi was charged with four counts of sexual assaultand one of overcome resistance—but after he was fired from the CBC—the former radio host wrote that he engaged in forms of sex that included role-play, dominance and submission, along with “rough sex (forms of BDSM).” Whether or not the charges against him are related in any way to bondage, dominance, sadism and masochism (BDSM), Ghomeshi’s detailed Facebook post has brought the practice into the public discussion.

Ghomeshi’s lawyer said Wednesday he will plead not guilty to the sexual assault charges. He has said all acts were consensual, though at least three women have alleged he was physically violent without consent.

TIMELINE:  Jian Ghomeshi charged in sex assault scandal

If it sounds like a case of he said/she said, that’s because it will be, as sex assault cases typically are.

“It’s always a he said/she said on the consent,” said prominent lawyer and Osgoode Hall Law School professor Alan Young, speaking about sex assault cases in general. “But you can’t just determine it based on the credibility of the individuals – you have to look at all the surrounding circumstances to see based on the whole picture whose version of reality makes more sense.”

READ MORE: How likely is Jian Ghomeshi to be convicted of sexual assault?

Young cited a case from the 1970s where a woman complainant in a sex assault case said she didn’t consent, but evidence suggested otherwise.

“The evidence shows that all her clothes were folded by her and put neatly on the chest of drawers, things like that—that doesn’t give much indication of a struggle,” said Young. “And it looks like someone had calm presence of mind.”

Young said consent is “the issue” in every sex assault case—but the way courts evaluate consent has changed since the early 1990s to require “voluntary agreement.”

“Under the previous law, the only way you could ensure that your assaulter would be convicted was by fighting back—which sometimes just escalates the violence and puts you at risk. But an absence of opposition was considered to be implicit consent. … [Now] you’ve got to point to something that demonstrates consent, as opposed to the old law where you pointed to something that showed a lack of resistance.”

Does that mean we should be signing contracts before we fool around? Young says consent can be communicated by conduct, not just words.

“The ideal situation and model is two people look eye to eye and say, ‘Do you want to do x, y and z?’ But that’s not life. That’s rarely how these things happen.”

Karen Busby is a law professor and director of the Centre for Human Rights Research at the University of Manitoba who undertook a review of BDSM-related criminal cases in Canada over the past 20 years. She said there was panic in the community after the Ghomeshi story broke that practitioners could be criminally convicted. She recently wrote an editorial that assures BDSM practitioners that if they abide by certain guidelines, there’s nothing to worry about.

“The case law in the last 20 years has made it clear – that if you have consent, a way of withdrawing consent, and what you’re doing is safe and sane, then you don’t risk criminal conviction,” she said.

 
 
 
 
 
 
Jian Ghomeshi bail hearing

Jian Ghomeshi appears at a bail hearing Nov. 26, 2014 after being charged with four counts of sex assault and one count of overcome resistance.

Alex Tavshunksy

Busby gave an example of how to follow these criteria: Consider BDSM role-playing involving an aggressive rape scene. In such a scene, you’d expect what she called the “bottom” participant to be saying something like “no, stop” but it wouldn’t actually mean “no, stop.”

“So that’s the concept of: you’ve got to have a way of withdrawing consent,” said Busby. “So if ‘no, no stop’ doesn’t mean stop, what does?” adding that an unrelated safe word is typically used.

Busby added if you’re engaged in erotic asphyxiation (also known as strangulation), consent is considered withdrawn because you no longer have the capacity to do so. But she pointed out she “hardly ever” saw instances of strangulation in her reading of the literature, since BDSM practitioners consider it too dangerous.

“What I was more concerned with is cases where it was clear this was not consensual BDSM… But what defendants tried to do was rely on BDSM to say it was erotic asphyxiation when the facts actually pointed to it being strangulation,” she said.

READ MORE: Why don’t victims or bystanders report sexual assault?

Without the special circumstances that should be discussed when engaging in BDSM, explicit consent in less kinky sexual encounters isn’t always present.

Scott Anderson is a professor of philosophy at the University of British Columbia who studies rape and sexual assault, and topics such as consent and coercion.

“If enthusiastic participation counts as giving ‘explicit’ consent, then this is not unrealistic for many, maybe most sexual encounters. If the participants are very familiar with each other, then it is probably not going to be an issue even when there is little explicit consent expressed,” wrote Anderson in an email to Global News.

“The trickiest situation is when two people who don’t know each other very well and who are still determining what sort of activity they are engaging in proceed towards having sex. Young people often find it difficult to make clear what they want—they might not know themselves—and so getting explicit consent at each step of the process can be very uncomfortable for one or both.”

“But  this is also a kind of situation where paying attention to explicit consent is especially important, and failure to do this can very easily amount to assault.”



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Timeline: Jian Ghomeshi charged in sex assault scandal

By Erika Tucker Global News
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more

WATCH ABOVE: Several women have come forward either publicly or anonymously to level accusations against former CBC radio host Jian Ghomeshi. Angie Seth reports.

**WARNING: This story contains disturbing content throughout**

TORONTO – What started with a vague and puzzling dismissal from the CBC has resulted in sex assault charges against former Q host Jian Ghomeshi, after Toronto Police launched an investigation and called on victims—of any assault—to come forward.

Global News has reached out for comment from Ghomeshi numerous times, with no response.

Here’s a look at how the scandal has unfolded.

Friday October 24 – CBC spokesperson Chuck Thompson says Ghomeshi is taking an “undetermined” leave from his job at the public broadcaster “to deal with some personal issues,” which many speculated to be related to the recent death of his father.

Thanks for all the well wishes, you guys. I'm ok. Just taking some much needed personal time.

— jian ghomeshi (@jianghomeshi) October 24, 2014
Around 2 p.m. Sunday October 26 – CBC issues a statement saying they were severing ties with Ghomeshi because of “information” that “precludes us from continuing our relationship with Jian.”

“The CBC is saddened to announce its relationship with Jian Ghomeshi has come to an end,” read a statement on the broadcaster’s website. “This decision was not made without serious deliberation and careful consideration. Jian has made an immense contribution to the CBC and we wish him well.”

Around 3 p.m. October 26 – Rock-It Promotions issues a statement saying Ghomeshi instructed his lawyers Dentons Canada LLP to file a suit against the CBC on his behalf.

“The action will claim general and punitive damages for among other things, breach of confidence and bad faith in the amount of $ 50 million,” read a statement from a Rock-It Promotions spokesperson. “Concurrently, Mr. Ghomeshi will commence a grievance for reinstatement under his collective agreement.”

CBC spokesman Chuck Thompson said in an email Sunday afternoon that CBC would contest the lawsuit vigorously; CBC declined to comment on Ghomeshi’s Facebook post.

The media learns Ghomeshi has hired PR-firm Navigator, known for its “issues management, crisis response and reputation recovery.”

3:44 p.m. October 26 – A tweet from the official Twitter account of the Scotiabank Giller Prize confirms Ghomeshi will no longer host the Giller Prize gala, scheduled for Nov. 10 in Toronto.

6:11 p.m. October 26 – Ghomeshi publishes a detailed Facebook post on why he says he was fired by the CBC.

“I’ve been fired from the CBC because of the risk of my private sex life being made public as a result of a campaign of false allegations pursued by a jilted ex girlfriend and a freelance writer,” Ghomeshi claimed in the post, which a publicist said had been written by the radio host.

FULL TEXT: Jian Ghomeshi’s post on why he believes CBC fired him

Ghomeshi wrote he has “always been interested in a variety of activities in the bedroom” but only engages in “sexual practices that are mutually agreed upon, consensual, and exciting for both partners.”

“The implication may be made that this happens non-consensually. And that will be a lie,” read the Facebook post.
READ MORE: Can rough consensual sex lead to criminal convictions?

Evening of October 26 –The Toronto Star publishes a story containing allegations from three women who say Ghomeshi was physically violent to them without their consent during sexual encounters or in the run-up to such encounters.

“The three women interviewed by the Star …allege he struck them with a closed fist or open hand; bit them; choked them until they almost passed out; covered their nose and mouth so that they had difficulty breathing; and that they were verbally abused during and after sex. A fourth woman, who worked at CBC, said Ghomeshi told her at work: “I want to hate f— you,” read the report.

Through his lawyer, Ghomeshi said he “does not engage in non-consensual role play or sex and any suggestion of the contrary is defamatory,” according to the Star.

Monday October 27 – Ghomeshi’s lawyers file a lawsuit upped to $55-million, plus special damages, alleging breach of confidence, bad faith and defamation by the public broadcaster.

Employment and labour lawyer Howard Levitt says the lawsuit amounts to nothing more than a PR stunt, and called it a “joke” since Ghomeshi is a member of a union.

“Unionized employees…cannot sue for wrongful dismissal, they can’t sue for constructive dismissal, they can’t sue for anything arising over the employment relationship. All they can do is go to an arbitrator and hope to get their job back and some back-pay,” said Levitt.

READ MORE: Jian Ghomeshi’s $55M suit ‘a joke’ says labour lawyer

Ghomeshi’s lawyers at Dentons Canada LLP said they were unable to comment “as this matter is before the courts” in an email to Global News.

Watch below: Ghomeshi lawsuit all about PR, not about the law, says labour lawyer


Wednesday October 29 – An anonymous woman says she was on a date with Ghomeshi ten years ago when he “threw me in front of him on the ground and started closed-fist pounding me on the head repeatedly until my ears were ringing” in an interview on CBC’s As it Happens.

The Star publishes another article with allegations from a total of eight women, including Trailer Park Boys actress Lucy DeCoutere who was the first to identify herself in the case and a former “Q” staffer who Ghomeshi allegedly told he wanted to “hate f—.”

“Because it was a date, we started kissing, which was very normal. And then at a certain point he pressed me against the wall with my throat and then he slapped me, which was not invited,” DeCoutere told Global News in a subsequent interview.

“Neither was it discussed or suggested, and therefore there was no way that that could be consensual.”
Watch below: Canadian Television actress Lucy DeCoutere speaks to Global News’ Laura Brown about allegations that the former CBC radio host of Q was physically violent with her.




The Star article also detailed two accounts from women who said once in his home, Ghomeshi “introduced them to Big Ears Teddy, a stuffed bear, and he turned the bear around just before he slapped or choked them, saying that ‘Big Ears Teddy shouldn’t see this’.”

READ MORE: Jian Ghomeshi, ‘Big Ears Teddy’ and allegations of sexual violence

After the Star‘s report, a Redditor posted a link to Twitter handle @bigearsteddy, an account that was active in April, and accuses Ghomeshi of abuse in several tweets.


Late Wednesday October 29 - Carleton University’s School of Journalism and Communication starts “looking into the situation” after the April Twitter messages resurfaced late Wednesday, according to spokesperson Steven Reid.

Reid said at least 53 Carleton journalism students did apprenticeships at CBC in Toronto between 2004-2005 and 2013-2014, but may not be able to obtain information on which programs the students worked on since the CBC “handles” the show “assignments.”

“At this point we still have no information that suggests any of our students interned at ‘Q’ or were victims of assault,” Reid wrote in an email to Global News Friday afternoon.

9:59 a.m. Thursday October 30 – Ghomeshi thanks his supporters and declines to provide further comment to media in a Facebook post:

Jian Ghomeshi Facebook statement number 2

Around 3 p.m. – The CBC says it’s hiring a third-party company to conduct an investigation in the wake of the allegations.

A memo from the CBC’s Heather Conway says the move follows “accounts of impropriety towards (CBC) employees,” and that the broadcaster is in the process of selecting a company to “conduct a rigorous, independent investigation beyond what’s already been done.”

Around 3:30 p.m. Thursday October 30 – Toronto Police Chief Bill Blair holds a press conference to ask anyone who has been a victim of sexual assault to come forward to the police. Blair said his force isn’t actively investigating Ghomeshi because no one has come forward to police.

READ MORE: Police chief urges sexual assault victims to come forward

“We have not received a complaint of any criminality for us to investigate but we have heard the media reports and we want to make sure that anyone who has experienced that and believes they are the victim of sexual assault or any assault, to come forward and report it,” Blair said.

Watch below: Police chief urges sexual assault victims to come forward in wake of Ghomeshi allegations


READ MORE: Why don’t victims or bystanders report sexual assault?

Between 4-5 p.m. Thursday October 30 – Both Navigator PR firm and Rock-It Promotions announce they will no longer represent Ghomeshi.

Navigator said due to a change of “circumstances” they are “no longer able to continue.”


4:53 p.m. Thursday October 30 – Lawyer and author Reva Seth publishes a blog in the Huffington Post, alleging Ghomeshi assaulted her during a date that seemed normal at first, and started with kissing before he “suddenly” changed.

“Jian had his hands around my throat, had pulled down my pants and was aggressively and violently penetrating me with his fingers. When it was over, I got up and it was clear I was really angry. My sexual interactions until then had always been consensual, enjoyable and fun,” wrote Seth.

Friday October 31 – The CBC alleges that “graphic” evidence that Ghomeshi had injured someone was what prompted the public broadcaster to fire him.

Later in the evening, Toronto police announced they have launched an investigation into Ghomeshi after two women came forward with allegations against him.

Saturday, November 1 — Toronto police appeal for public assistance in their criminal investigation of Ghomeshi. They say that a third woman has come forward to complain. Insp. Joanna Beaven-Desjardins says investigators want anyone with evidence such as video, photographs or social media chats related to the case to contact them.

Monday, November 3 - The Polaris Music Prize removes Ghomeshi from its jury without providing a reason for its decision.

On Monday afternoon, Carleton University updates its tally to report 73 Carleton journalism students had been placed at CBC Toronto between 2003 and 2014; at least one on Q. The statement says no concerns have been raised about the placements, but current and former students have been contacted to let them know counselling services are available to anyone who needs them.

Tuesday, November 4 – CBC says Arif Noorani, executive producer at Q, is taking time off amid the Ghomeshi scandal for an unspecified amount of time. There are conflicting reports that Noorani was told by a union representative of allegations made by a former producer on the show that Ghomeshi had grabbed her and made a lewd suggestion. Noorani says he did not know of the sexual allegations.

Also Tuesday, Toronto’s police chief renews his call for victims of sexual assault to come forward. He refused to say whether investigators have received additional evidence or if any more victims with allegations against Ghomeshi have come forward since the three women confirmed on Saturday.

The CBC appoints Toronto employment lawyer Janice Rubin to lead an independent investigation. Rubin will report to senior CBC management about what she hears and what her investigations uncover along with recommendations on resolving any complaints.

The Star reports a male former student at York University came forward with allegations against Ghomeshi from over 25 years ago. Jim Hounslow told the paper Ghomeshi “grabbed my genitals and fondled them” when the ex-CBC host was president of the student federation. Hounslow didn’t file a complaint, but told the Star Ghomeshi was considered a “sexual predator” on campus. The university found no record of complaints, but acknowledged it’s “highly unlikely” a decades-old complaint would still exist.

Morning of Wednesday, November 5 – The Star reports Ghomeshi has hired prominent criminal lawyer Marie Henein to represent him; Henein is known for representing former Ontario attorney general Michael Bryant, who was charged with criminal negligence causing death and dangerous driving causing death following an altercation with a cyclist in 2009. Those charges were eventually withdrawn.

Around 2 p.m.– The CBC asks a court to dismiss the $55-million lawsuit filed by Ghomeshi, saying the claim is “without merit” and an abuse of the court’s process. The broadcaster says that as a member of the Canadian Media Guild—a union with a collective agreement—Ghomeshi’s only legal avenue is through the arbitration process, not the courts.

Friday, November 7 – CBC executive vice-president of English services Heather Conway says a complaint filed in 2010 by a woman who worked with Ghomeshi was “clearly mishandled.” Conway said managers at CBC made “some efforts” to intervene and improve the work environment at Q but failed to do so. Earlier in the day, four Toronto lawyers offered free legal aid to anyone coming forward with complaints about Ghomeshi.

Monday, November 10 – CBC announces Arif Noorani, executive producer of Q radio program, is leaving the show but will continue working at the public broadcaster in the aftermath of the scandal. Noorani has denied hearing allegations from a former producer that Ghomeshi sexually harassed her at work.

Tuesday, November 11 – Former CBC news director Jamie Purdon is announced as interim executive producer of Q after Noorani asked to be reassigned.

Wednesday, November 12 - The Toronto Star reports CBC fired Ghomeshi after he showed them video and text messages that allegedly depicted bruising on a woman caused by a cracked rib. The showing allegedly happened a few hours before Ghomeshi was put on a leave of absence.

Tuesday, November 25 – Ghomeshi withdraws his lawsuit against the CBC. Spokesman Chuck Thompson says “the civil suit has been dismissed with costs in favour of CBC” but the agreement reached between lawyers for the CBC and Ghomeshi is still subject to a court order.

Wednesday, November 26 – Ghomeshi surrenders to Toronto Police and is charged with four counts of sexual assault and one count of “overcome resistance – choking.”



With files from Global News reporters Adam Frisk, James Armstrong, Andrew Russell, Alexandra Posadzki and The Canadian Press




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My dog name is, Sasha!

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He is out of jail at the moment on $100,000.00 bail and has had to surrender his passport (he spends a lot of time in LA). This case has changed the conversation around sexual assault, rape and reporting in Canada right now. Super interesting to follow.

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