I was looking at various pundits predictions for 2016, and the only one that resonates with me is in the legal realm that sexual assault trials are likely to dominate major news coverage, albeit more “celebrity” / “entertainment” news than political coverage. In Canada, we’re going to see movement forward on the Jian Ghomeshi trial, and from the U.S., a potential civil and criminal trial for Bill Cosby (without prejudice to the future outcomes, I’m going to regularly refer to them as the “perpetrators” and their accusers as “victims”; I have no idea what happened with any of them). Add to that an increased attention to sexual assaults in general, and there will likely be more coverage of sports teams and frat houses going downhill rapidly from merely stupid behaviour to outright criminal behaviour when the testosterone, sense of entitlement, and alcohol/drugs get out of control on campuses rife with the so-called rape culture.

There are people who are quite passionate about rape trials, and every scrap of news or hint of allegation immediately goes on their Facebook post. From hint of accusation to end of trial and beyond, they have already determined guilt and no penalty is too great. While I share their views on appropriate punishments, I am rarely excited by rape trials. I don’t mean a titillation factor, I mean I’m not excited that a sexual assault trial will be waged so publicly for a number of reasons.

First, I am not convinced that the public nature has a positive policy outcome for encouraging more victims to come forward in the future for other crimes. The argument in favour is that the public nature removes the stigma from the victim, emphasizes that they are indeed victims and what happened was a clear crime, and emboldens others who are reluctant to report what happened to them (by the same perpetrator or another). Less convincing too is the argument that the legal system provides much-needed validation for the victim to help the healing process, brings some measure of justice, and helps them move on towards closure (whatever that looks like). In short, women shouldn’t be afraid to come forward, because look, it happened to others and they’re coming forward.

Second, the public nature helps to shame the perpetrator. Normally a man, who assaulted a woman. Again, I’m not completely convinced of the policy outcome since the person is tried, convicted and sentenced in the court of public opinion before they ever set foot in the courtroom. One could argue that is the same for any crime, but when the victims band together to have a press conference, before they talk to the police to file an actual complaint, not exactly anyone’s view of how the legal system is supposed to work. And when the legal system doesn’t always produce the same “outcome” as public opinion, the policy outcomes are less positive.

However, my biggest concern is neither of the above, or at least not directly. Instead, I’m concerned that the legal system is a poor way to try these cases, but not in the normal way people complain about their interactions with the system as a victim. It is the nature of the crime that is the problem, and how to prosecute it.

From the get-go, there is a problem with the laws. The law has to be clear and unambiguous about what it is making criminal behaviour, worthy of punishment. It is the same problem it has with prostitution laws…the state can’t say “sex is against the law”, as sex isn’t, and can’t be. It would unintentionally outlaw sex of any sort. So, they tried “sex for money”, but that fell into problems when the money went to a third party (aka the pimp). Sex with strangers, sex with strangers for money, sex for money, sex in exchange for anything gets too close to regulating sex itself, a private activity outside of the purview of the state in most instances. Buggery and sodomy laws fall by the wayside for similar reasons. So, states have passed laws that say the sex part is okay, but “solicitation” and “living off the avails of prostitution” are not. An end-run around the legal issues of regulating personal behaviour between consenting adults that without the exchange of money could look identical to behaviour of other consenting adults that shouldn’t be illegal.

When it comes to rape trials, the law was designed for a specific type of assault. The menacing stranger in a ski mask lurking in the dark, ready to pounce on an unsuspecting innocent girl walking through the woods to grandma’s house. It envisioned (a) a perpetrator with clear menace in their heart, (b) attempts to conceal identity, further escape, and enable the crime, and (c) an arms-length, unknown victim. When the crime happens, proof is relatively straightforward for the justice system:

• Identity of the perpetrator — this is often the biggest challenge, proving who the attacker is…track them, catch them, give them a lineup if possible;
• Evidence of the crime — the “actus reus”, i.e. proof that an assault took place, including physical evidence, witnesses, rape kits, etc; and,
• Intent — the “mens rea” element, i.e. the criminal intent to commit a crime.

Short, sweet and to the point — he’s the one who intended to commit a crime and he did commit it. To be blunt, no different than a murder case or a regular assault case, or even a burglary. It’s the basis for the entire justice system — an act, an intent, and the person who did it. Sexual assault cases where the perpetrator is a rapist in a park with a knife fit that pattern. Incredibly difficult at times to prove identity, but the criminal act and intent are relatively straightforward. If you get the right person, the next two are slam dunks, outside of an insanity defence. One size fits all type of cases.

But that might be as low as 5% of rape cases. The vast majority of rape cases are apparently committed not by strangers but by people the victim knew (hard to be 100% sure, as many rapes of any type are not reported, but most studies bear that out). Instead of the “stalking rapist” scenario above, these victims had some form of relationship with the person, either as acquaintances, or friends, or partners, or in a professional capacity like the person was their priest, counsellor, doctor, professor. As such, evidence of the criminal act is often hard to come by…if the victim felt ashamed, as most do, and didn’t report it for days, weeks, months, or years after the attack, there is little to no physical evidence. No rape kit, no bruising documented. And since these acts are often committed in private, there are no witnesses. No evidence of any crime at all except for one thing. The victim’s statement that it happened.

This is where the “he said, she said” reference usually comes in, often in a strictly pejorative sense. But it doesn’t matter if it is “he said, he said”, “she said, she said”, “she said, he said”, or “he said, she said”, or even if it is a completely different crime. It comes down to one person saying an act was committed and the other person saying it wasn’t. The criminal justice system has no good way to handle that, because the standard of proof for criminal cases, and the entire basis for Western law, is innocent until proven guilty beyond a reasonable doubt. Nobody in legal circles wants to define what that “beyond reasonable doubt” looks like in numerical terms, but let’s set a low threshold of 80% sure. While the court of public opinion might hear a woman’s claim and decide it is 100% true, a regular court hears simply “it happened” and “it didn’t happen” as two competing claims, and without evidence to corroborate a story to move it off the 50/50 needle, it is going to be very hard to get to 80% confidence. Add in the fact that murder, manslaughter and rape trials are considered particularly heinous, and that the law is designed to prevent one innocent person from going to prison, even if it means 100 guilty go free, and some analysts would suggest the threshold in these cases is more like 90-95%, not just 80%.

But in recent years, partly with the improvements in DNA testing, the claims “it didn’t happen” were more easily refuted. In those cases, there are often plea deals, easily “solved”. The remaining cases are now more about arguments that “it happened, but it wasn’t a crime.” And therein lies the biggest problem of all for rape trials. The perpetrator admits that sex happened, but that the victim wasn’t a victim, but a consenting and willing partner.

Identity is proven, the “act” (of sorts) is proven. The whole focus is on intent. One of the most difficult things to prove under any circumstances — what was in the mind of the accused when the crime was committed? Was there malice? Was there clear purpose? Was there knowledge of a crime being perpetrated and callous disregard for the victim and the law? If it is a murder case, and the accused killer planned the crime meticulously, set up an alibi, snuck away from a party and stabbed the victim 32 times with a specially bought hunting knife, snuck back to the party, hid the evidence and tried to get away with it, pretty good evidence of intent.

Now look at the claims in a consent-focused case. The rapist says, “I’m not a rapist. I wanted to have sex, she wanted to have sex, we had sex, now she claims she didn’t consent. *I’m* the victim here, she’s lying.” Whereas the criminal justice system had to determine semi-establishable “facts” before (it happened, it didn’t happen), now it has to determine not only what was in the rapist’s mind but, in effect, what was in the victim’s mind?

With the Cosby case, and Ghomeshi, the cases are going to focus on whether or not the person consented. The victims say they didn’t, the accused say they did. The court cases therefore are going to look at the alleged incidents in detail to analyze if there was evidence of consent or not. Something they are completely ill-equipped to do.

They have to do it all the time in other types of cases, normally contract law. There is a classic case from the UK where a voice coach offered voice lessons and a mother brought her daughter to him for “voice improvement”. AKA singing lessons. They signed a contract, the lessons began. But the teacher was a pervert, and told the daughter that if she had orgasms at full volume, it would improve her voice. And being the helpful teacher he was, he offered to have sex with her to help her reach her full volume. She agreed, they had sex over multiple lessons, mommy found out, instant shit storm. At trial, the defence said, “Hey, she consented.” Which was sort of true — the daughter did consent. And she was of age. But the court said, “She consented to voice improvement lessons, that’s not what this was, therefore she didn’t consent to what you offered her and you didn’t offer her what she was consenting to, ergo, there was no “meeting of the minds” and no consent.” And a rule was born. If two people try to form a contract, and one is, say, intending to buy a red Toyota, and the seller thinks it is the blue Honda, then they never consented to the same thing. No consent, no contract, everything null and void. In contract law, that is all pure and simple. Almost a mistake of fact, and thus no common intent, and thus no consent. Except contract law is CIVIL court, where the threshold is 51%. Not a criminal case at 80-95%.

In criminal cases, it’s a giant shit storm of the highest magnitude. And quite frankly, I really don’t want high profile cases trying to figure out what “consent” means. Partly as the media will grab hold of it, twist it, groups around the country will get up in arms about perceived meanings of every nuance. A shit storm.

Take the Cosby case…the media went batshit crazy a few months ago when an old deposition by Cosby was made public by the courts. For reference, Cosby is accused of drugging his victims and then having sex with them, often using quaaludes. The deposition from a former sex assault/harassment case (it was a bit confused, wasn’t at trial stage yet) had Cosby saying that he bought quaaludes and when asked why, he said “for sex”. As I said, media outlets went crazy, and women’s groups pointed to it as the smoking gun. Vast media coverage everywhere. Sounds damning, doesn’t it? Except the deposition wasn’t quite that clear. He didn’t say, “I give them to women to knock them out so I can have sex with them.” He said he bought them to give to women for sex, which sounds like mere semantics until his lawyer gets him on the stand and he says the missing words were not “to knock them out” but simply “in exchange” for sex i.e. he was acting as a drug dealer who would get “paid” (or rewarded in his mind) with sex in exchange for giving them the quaaludes. Not quite the smoking gun, slam dunk the media outlets portrayed. Damning, sure, but when it gets to trial, the court will have to decide which version is the truth. For a criminal case, is the first version strong enough to meet the 80% threshold? 90%? 95%?

People assume from watching shows like Law and Order: Special Victims Unit that serial rapists are common, and that multiple victims increases the likelihood of conviction at trial, but that is not necessarily the case. When you see a show on TV, one of the biggest elements they talk about is “M.O.”, the modus operandi, the method of operation. The same pattern. The victim was always lured, raped, killed, and posed in the same fashion. Always a librarian target, always evidence of vaginal bruising, strangled with piano wire, laid out in a Sunday dress, with an Easter bonnet tied with the same knot, and a note in the pocket of the dress, in the perpetrator’s handwriting and written in the victim’s blood. A pattern that would be impossible to duplicate. A master criminal. If they did one crime, they did them all is the argument.

Except, in reality, the court has to find the perpetrator guilty of each crime separately. That means identity has to be proven for each, intent for each, and the act for each. The person could be charged with six crimes, and if there is no identity for #3, they won’t be found guilty for that one. If one of the three elements is missing entirely, the person cannot be legally convicted on that count. Even if convicted for the other 5.

Which means M.O. is interesting evidence for Cosby and Ghomeshi, but not conclusive. Particularly as it really dangerous if it goes the other way…a person who had the same situation but it was consensual. Go back to the prostitution example…they need evidence that marks this behaviour different from non-criminal behaviour. If the defence shows a similar situation, with similar evidence, and it wasn’t a crime, then the court case is in trouble.

Which isn’t to say it didn’t happen. I’m willing to accept that it did. It’s just that criminal system has no way of determining fact from fiction. Although even fiction is a problematic phrase. It implies black and white dichotomies, that one person is telling the truth, and the other person is lying. But “intent” is about the state of mind of the perpetrator…which goes back to the voice coach…would you have a different outcome if the pervert actually thought it would improve her voice? If he actually thought he WAS giving her voice improvement lessons?

The defence for both Cosby and Ghomeshi are going to argue “constructive consent”. Some will call it “implied consent”, and the media will have a field day with it, interviewing every women’s group they can find to blast society and men and the entire legal system. But it is quite different.

I’ll digress to deal with implied consent for a moment. People argue it doesn’t exist, but it is a fallacious argument. Take the average romantic relationship, maybe even a simple romance of a Victorian era. Jane Austen at the typewriter constructing a blooming romance between two consenting adults. The woman, a headstrong woman. The man, a dashing liberal who admires her ways. They butt heads, they flirt. He takes her hand in his. SCREEEEEEEEEECH.

He just committed an assault. He has no right to touch her, or for that matter, anyone ever to touch anyone. Under the law, it’s an assault.

Did anyone ask first before they took the hand of their current partner? Did they get it in writing? No? Of course not.

Look too at the classic image of two young lovers, same-sex, different sex, doesn’t matter. The blooming romance. The first kiss. They lean in. They pause. They both move forward. Their lips touch. SCREEEEEEEEECH.

Another assault. No prior contract of consent. No agreement on how hard to press lips. No agreement on the use of tongues or not. Of course not, because that pause was a question and the answer was the two of them moving forward/nor recoiling in horror.

Implied consent. It happens all the time between consenting adults. People in healthy, consenting relationships do not say, “So, do you consent to sex with me tonight three times, no bodily fluids, you may touch my neck with your left hand, you may put your right hand here, etc.” It’s not how life works. And like with the prostitution example, the courts cannot and will not say, “Every sex act forever and in perpetuity must have a written document filled out three days in advance, subject to a cooling-off period, notarized and witnessed by at least two parties who have no romantic attachment past or present with the consenting parties”.

And if someone for Ghomeshi or Cosby argues that the fact they were together at all equals “implied consent”, well it’s going to fall flat pretty fast. As it should.

No, the real issue for them is what they are going to have to prove to show consent. To be clear, they are arguing the victims fully consented. For them, the same problem — “he said, she said”. So they have to prove consent. And their only way to do that is through what is called by some “constructive consent”. It is to show that the nature of the situation, the “construction of the events in question”, are more consistent with his claims of consent than her claims of no consent.

But that is a pretty complex nuance…and while the media will mess it up royally, even the criminal justice system is ill-equipped to handle it. Let’s look at some of the elements. Note that all four are completely irrelevant to the actual question of did she consent or not.

First, what sort of relationship was it? Was it friendly, cordial, or had it been romantic recently or escalating that way?

Second, what happened on the day in question? Was it distant or intimate? Put bluntly, was it a romantic getaway for two with one bedroom? Were they making out on the dance floor like horny teenagers? Were they passionately necking in the corner with their hands all over each other?

Third, what was the nature of the actual assault? Was there force, weapons, aggression to overcome the resistance or was there wine and roses?

Fourth, what happened afterwards? Did the woman run straight to the police, never see him again, tell her friends / counsellors / therapist immediately or did they continue to date, interact, etc.?

So, I said all four are irrelevant and they are. But when the court has no evidence other than the two statements, they have to look for corroborating evidence of some sort to move from 50/50 or flipping a coin. So what would the four elements tell them?

They tell a narrative.

In the accused’s best version, they have a romantic or increasingly romantic relationship, with an intimate passionate day, wine and roses, and a continuing romantic relationship showing not only consent before and after, but basically “ongoing”. Including for the instance in question.

In the victim’s best version (legally), there is a cordial but distant relationship, no intent to go further and have sex, a flat refusal met with some form of coercion (either physical, emotional, or implied), and the relationship terminated immediately afterwards.

The accused’s version makes it look like any relationship, something that cannot be made criminal by the courts without indicting every couple everywhere; the victim’s version looks almost the same as the classic sex assault case, without the ski mask.

Unfortunately, cases are rarely clear for either version. Relationships are often messy. Maybe the woman was innocently flirty, or afraid to reject the man. Maybe they were romantic but it wasn’t progressing smoothly, there were fights and drama. Things happened behind closed doors. In the bedrooms of the nation. They consented to kiss, but she had no intent to have full intercourse. She said no clearly, she was afraid to say no. He was physically threatening, he was physically imposing. Past traumas contributed. Women are traumatized but stay with the person afterwards out of fear, loathing, guilt, etc. Alcohol and/or drugs were a factor for both parties.

Does any of that change whether she consented? Nope. No means no. Anything other than yes means no. But absent a tape recorder in the room or a signed document, the court has to figure it out somehow.

Cosby’s case will be a cakewalk for the legal system compared to Ghomeshi’s. If they can prove that the Cosby victims unwillingly took drugs, or even willingly took drugs, before the sex, there is a pretty good chance they’ll argue they couldn’t consent to anything, and that’s a decent argument.

For Ghomeshi, consent is going to go way deeper and darker. Because some of the victims were in an ongoing relationship that included rough sex. Courts have often ruled that people cannot consent to harm themselves, therefore anything that harms them is deemed non-consensual. But there are exceptions and changes. Euthanasia and assisted suicide do a pretty fair amount of “harm”, and that is more allowed. Consensual. Boxers, MMA fighters, and hockey players have a high-level of voluntary assumption of risks in their endeavours and are deemed consensual, yet the same activity on the street would get them a couple of years in jail.

So, the rough sex is going to have to be analyzed since some of the complaints are that the sex was forceful. Ghomeshi is likely to argue that it was merely consensual rough sex with strong elements of domination. And since the courts are going to be loathe to rule that all rough sex between consenting adults is non-consensual by default, they are going to have to see if Ghomeshi’s behaviour was non-consensual from the get-go or became non-consensual by crossing a line.

Great fodder for media outlets but terrible ways to communicate how the legal system ought to or does treat sexual assault cases. High profile murder cases that follow classic legal elements — identity / act / intent — are fantastic examples. High profile sexual assault cases that go to the heart of consent and the psychology of the accused and the victims at the time of the instance are likely to be terrible poster children for teaching moments.

Oddly enough, I am not happier when it is handled through civil lawsuits rather than the criminal courts. As I mentioned above, a civil trial has a 50% threshold, not the 80-95% threshold of a criminal trial. So lots of people think this is fantastic, a great way to counteract the he said, she said problem. Easier to “convict”. Except it isn’t a conviction, the only remedy is basically money. That’s how O.J. Simpson got dinged…he was freed on criminal charges, but found liable for damages in civil suits brought by Nicole’s family. It’s a weird way to “resolve” a murder case, but whatever works, right?

Well, no. Not really. Because civil cases are completely free-for-alls. Cosby is already suing the alleged victims for calling him a rapist — because if they can’t prove 51%, *they’re* going to have to PAY HIM. And all the worst forms of victim shaming can happen in a civil case. Prior sexual history, drugs, cheating on their third-grade math test. Anything and everything is going to get thrown around about anybody and everybody. It is a no-holds-barred, knock-down-drag-out fight between private parties. In criminal cases, it is the state doing the prosecuting, and there are certain areas to examine, prosecute, argue. Civilized in comparison.

In my opinion, Cosby is going to be a cakewalk for the criminal prosecutor, but with low likelihood of serious convictions; the civil case is going to be a bloodbath with lots of judgements against him. For Ghomeshi, I think the criminal cases have a decent shot but likely without serious penalties. 

There are no “good news” stories coming out of any of this. So, when it comes to the courts looking at areas they normally suck in, and are ill-equipped to handle, my safewords are stop and hell, no.

I hope I’m wrong.