Sexual Assault Archives - LCP Criminal Lawyers

Category Archives: Sexual Assault

Intoxication used as defense for sex assault

The media has recently highlighted that Justice Nancy Spies, a trial judge of the Superior Court of Justice, recently restored the defence of extreme intoxication in sexual assault cases, which begs the question: what does that actually mean?

Well, in 1994 the Supreme Court of Canada found in a case called R. v. Daviault that “extreme intoxication”, which was defined as a state akin to automatism, or in layman’s terms, when an individual was so drunk they did not know what they were doing, was a defence to sexual assault. The court essentially found that if an individual was extremely intoxicated when they touched someone in a sexual way without consent, they were not guilty of sexual assault.

However, nine months after the Supreme Court released their decision in Daviault, Parliament enacted s. 33.1 of the Criminal Code, with the intent to reverse the impact of Daviault. S. 33.1 eliminated the defence of “extreme intoxication” in sexual assault cases.

In 1999, Madam Justice Wallace of the Superior Court of Justice found in a case called R. v. Dunn that s. 33.1 was unconstitutional, and was accordingly of no force and effect. In other words, she found that the defence of “extreme intoxication” must be available for offences such as sexual assault. Justice Wallace in effect restored the defence.

Since the release of Dunn, different courts have come down on both sides of the issue; some have found that the defence should be available and others have found that it should not. No appellate courts have considered the issue as of yet. In the recent case of R. v. McCaw, Madam Justice Spies found, as did Justice Wallace, that s. 33.1 was of no force and effect such that, as it stands, “extreme intoxication” is a defence to a charge of sexual assault.

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The Judge Ruled the Man was Not Guilty of Sexual Assault

Recently, a military judge, presiding over a court marital, found a soldier not guilty of sexual assault. The complainant alleged that she was assaulted in a Toronto hotel room. In ordering the case dismissed, the judge noted problems with the woman’s account, including that she willingly attended a strip club with the accused, despite claiming to have been sexually assaulted by him earlier.

This acquittal comes in the wake of a spate of other high-profile acquittals, including that of three Toronto police officers accused of rape and related charges last year. In that case, the trial judge concluded that the “believe the victim” campaign, part of the broader #meToo movement, has no place in the courts because it deprives the accused of the presumption of innocence. While critical of stereotypes invoked by the defence, such as suggesting that the complainant was dressed in immodest clothing, the trial judge was left in reasonable doubt by various implausibilities in the complainant’s story as well as pictures showing that she was not too intoxicated to consent.

Before that, there was the 2016 acquittal of Jian Ghomeshi. In that case, the credibility of the complainants was vigorously challenged by the defence, who brought out that some of the women had continued contact with Ghomeshi after the alleged assaults, and had sent selfies to him. One of the women sent him a picture of herself in a bikini as well as an email complimenting him on his show and including her own cellphone number.

All of these cases demonstrate how crucial it is to vigorously fight false sexual assault allegations. The #meToo movement has only grown stronger and it is important to hire the right lawyer to defend you. The consequences are too serious to do otherwise.

We are getting phone calls like this “Hello, I have been wrongly accused …” And we are commonly asked, “Who is the best lawyer for sexual assault crime”. Sexual assault is a broad offence that can range from uninvited sexual touching to a brutal rape. The right lawyer to defend sexual assault allegations is the one who will knows the law and will turn over every rock, investigate all possible witnesses, and pursue every avenue of defence to either convince the prosecutor to drop the charges, or secure a “not guilty” verdict. No lawyer can guarantee an acquittal, but if you retain us, we can guarantee that we will bring every resource to the table to fight for you.

 

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Social Response to our #MeToo Campaign

We have received hundreds of comments in response to Ms. Mamo’s article (see below). Lockyer Campbell Posner does not support or endorse any of these comments and has posted them for discussion purposes only.

Our official reply is as follows

Since the publication of Alexandra Mamo’s article, we have received a great deal of feedback, both positive and negative. The strongly held views on both sides of the debate deserve thoughtful and respectful consideration. Whichever side of the debate you stand on, let’s ensure that the rule of law is applied, the guilty are brought to justice and the innocent are exonerated. If you have been charged with a criminal offence, or require legal advice, whether as a charged person or a victim of crime, feel free to call our firm for assistance at (416) 847-2560.

The Social Comments

 

  • My bet is 99.9 % is total BS, Women accuse far to easlly. ANYTHING for attention…they seem to need their vanity stroked constantly, and need perpetual validation. Disgusting behaviour.
  • Women know they will be blamed and that’s a major reason most crimes arent reported. Getting the police to investigate is hard. And even if that happens very few men are convicted.
  • Ferguson and John M. Malouff conducted a meta-analysis of confirmed false rape reporting rates in the Archives of Sexual Behavior in 2016, and found that 5.2% of cases were confirmed false rape reports. As the study only looked at confirmed instances, the authors noted that the “total false reporting rate… would be greater than the 5% rate found here”.https://en.wikipedia.org/wiki/False_accusation_of_rape
  • It’s the crying wolf syndrome. So many false accusations by women have lead to real victims not being believed or at least being sceptical of the complaint. Making it easier to convict men of rape will only lead to more innocent men being convicted. A false accusation in and of itself in a lot of cases, especially those involving high profile men will ruin their lives even if they are innocent. Yet society takes few measures to punish women that are found to make false accusations. And yes there is the argument that fewer women will report rapes if false accusations are punished because they fear that their accusation will be taken as false for whatever reason. Some where there must be a fair and equitable ground to base the treatment of this crime where punishment is given to the perpetrator and support for the victim and we just haven’t found it yet.
  • Women CRY rape and whatever else they can SCREAM about at every turn. they have the entitled mentality….
  • Women dont cry false rape. Horrible terrible myth.
  • No my dear NOT nonsense it seems to be a game some women play, and the COST is devastating. the behaviour from these women is unconscionable. They violate basic common decency. Excerpt: “Archives of Sexual Behavior (2016)
  • i’ve heard a policeman, with a straight face, claim a woman will cry rape as a way to make an excuse for being late getting home to her boyfriend. Oh sure a woman is gonna think her boyfriend will say “oh that’s fine then”. Fact is women know the…See more
  • Nothing but nothing would surprise me as to what women will do to exact revenge on a man women who are bankrupt of morals/integrity lots of that going on today.. Matter of fact I was just in the throws of showing support to Steven Galloway…See more
  • NATIONALPOST.COM  – Steven Galloway in his own words: I’m not a monster. I…
  • Just be happy you have never been violated. Obviously you have no friends that have been violated and you live in a bubble. Most women don’t bother reporting because it’s bullshit. No one helps you heal from the trauma.
  • Considering how few men are convicted I have to doubt that there’s any unfairness to men.
  • How did you get the statistics?
  • Its a well known fact. Has been reported in the news.
  • That doesnt make sense. Just because there are few men that are convicted, even if one of them is wrongly convicted, it is already unfair. What kind of logic is that? Why don’t we make it legal to break and enter people’s houses? Considering how few of those happen I doubt there will be any issue. 🤔
  • Huh? No one is suggesting sexual assault should be made legal.
  • Just because it’s “reported in the news” doesn’t make it well known or a fact. Do your own due diligence and go do some actual research.
  • It is a fact. Very few men are convicted.
  • And nope I see no need to become a criminologist. It IS well known that very few men are convicted. Makes me wonder why you want to dispute that.
  • We don’t have to wonder why you say “Makes me wonder why you want to dispute that.” To use your fellow identitarians language, what you are inferring here against Iain is a “dogwhistle” for an ideologue operating on emotion and in-group bias The substance of your argument can be summed up as such: TENOR
  • You have got a pretty big mouth, but prove it with FACTS Jian Ghomeshi perfect example of wrong accusations. those women were emailing him with some pretty suggestive comments. NOT to mention photographs of themselves that were pretty darned telling When he responds in kind they call it sexual assault.. Play with the bull you get the horn.. FALSE accusations. And Ghomeshi is not someone I like or respect. but my respect for those women in this case is less.Their credibility went out the window and all their very own doing.
  • https://www150.statcan.gc.ca/.../article/54870-eng.htm
  • WWW150.STATCAN.GC.CA  –  https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/54870-eng.htm
  • Ghomeshi is a great example of how men can get away with things and of how women can be their own worst enemies.
  • Diana Morgan don’t these statistics prove that two fifths of the reports to police are phony since no person is identified as doing anything wrong. Remember the police must take the complaint and even if Justin Trudeau and Minister Hajdu (former Minister of the Status of Women) say there’s two sides to every story the police must believe the woman without investigating. Sadly Trump did not invent ignoring truth feminists did. I’m sure as a woman and a feminist you will believe what feminism tells you even Trudeau and Hajdu say different. For me this is boring. I’m out of this “discussion” .
  • Well i sincerely hope your daughter wife or mother – sorry but it does happen lots to elderly women even though few charges are ever laid in their cases – doesnt get raped. Because you wont believe her.
  • No…. what this is a a PERFECT EXAMPLE OF WOMEN BEHAVING LIKE TRAMPS, and expect to be treated like ladies. when in fact they (themselves) ARE the abusers…They have encouraged Ghomeshi to respond sexually 1000 %. They are the offenders and should have been charged with false accusations, DUE to their own disgusting behaviour…Since when is it okay for a woman to tell a man they WANT to have sex with him and then have him charged for complying with their wishes. THOSE women were most definitely at fault, and double shame on them for encouraging/demanding sex from a man, ANY man.
  • They were foolish. They did the things women are taught to do
  • Indeed your venom is a perfect example of why many women dont report rape.
  • That is why we need a men’s rights movement.
  • Men already have rights. Lots of them.
  • What rights do we have that a women does not have? When a judge shouts at a father that he has no right only responsibilities that worries me.
  • No matter how they change the laws the victims always pay the price!
  • You mean like women who falsely accuse a man, and hope for a conviction.??? The women who have iron clad rape charges leveled often don’t get justice..WHY??? Ask all the women who have been PROVEN to have falsely accused a man of rape/ sexual assault make all women look like liars. Why women with 100 % case for rape, go without justice. don’t blame men, blame women.
  • How many of these does it take to appease mentally deranged women? https://www.usatoday.com/story/news/world/2018/01/02/man-convicted-rape-freed-after-sister-law-finds-deleted-facebook-messages-prove-his-innocence/995197001/
  • USATODAY.COM – Man convicted of rape is freed after sister-in-law finds…
  • https://www.nbcnews.com/spe…/the-wrong-man-thomas-webb-iii
  • NBCNEWS.COM
  • What happens after someone wrongly convicted is set free?
  • Far too many stories like this, false accusations by deranged women http://www.dailymail.co.uk/…/Cassandra-Kennedy-Father...
  • Father freed after a decade in jail as daughter admits she…
  • Poulsen #Metoo is a witch hunt.
  • theres no need for a fair trial now that society has found social justice
  • You mean socialism!
  • Two entirely different things. I think you mean communism. Socialism is not communism.
  • Socialism is the first step toward communism.
  • Does anyone want to know which group is hurt most by a false report of a sexual assault?
  • Think about it. If it is proven false, the accused suffers for a few months.
  • Every subsequent case of actual, real rape, in that jurisdiction is going to have prosecutors and the press and everyone else doubting the woman.
  • So who is hurt worst by the 2% of false accusations? Why women, of course.
  • the real victims are the ones that are hurt most by the lying b******
  • Who the hell are they kidding the accuse abused his right to any trial when he commited sexual assult where are the victims fair trial or does it matter the victims rights should come first the accused let him rot in hell
  • did you know how hard it is for the victim to stand up there and say what happened and have to relive every detail of what a man did to her it’s a nightmare relived over and over and over again
  • Ridiculous. Like 3% make it to court and (approx.)1% conviction rates—and you want even more perps to go free? wtf
  • When the courts give into all these protest groups and deny fair trials we are doomed to be no better than Iran or any other country were freedom of speech, the right to a fair trials are denied. WE have already lost our freedom of speech in Canada!
  • And Justin Trudeau is exempt from any sexual assault laws and will never be sanctioned for any acts which could contravene the4se laws, only everyone else is subject to them.
  • Anyone accused of any crime should get a fair trial! But never forget the victims!
  • Anyone remember when hashtag meant pound. Ok so hashtag me too means pound me too. Great message. Millenidiots
  • Pound me too?
  • You guys are sadly misinformed because they get more of a fair trial than the victim
  • Have they charged a white guy yet??
  • I was gang sexually assaulted in high school and the vice principal said if I called police I would be expelled that was 1980. 1990 I was raped at gunpoint I never called police but I got out of there with help calling a friend. In 2009 I woke up to 2 guys in my apt and 1 of them knocked me out I woke up on my bed spread eagle with my clothes on inside out backwards. Some money and medication was stolen. When I called police they came and said there was nothing they could do. Those 2 men had come back again and again and eventually killed my Jack Russell Terrier and bragged about in the neighborhood I heard them when they saw me with my other 2 Jacks bragging how tough the dog fought. Those men put me through hell. I have no sympathy for them.
  • Really how many rapists get away with it you know how hard it is to prove in court these bastards have too much rights
  • There’s pervert’s in all races “
  • Cassandra MacDonald no most of the guilty go free only 1% go to jail
  • That is why we need a men’s rights movement.
  • Men already have rights. Lots of them.
  • What rights do we have that a women does not have? When a judge shouts at a father that he has no right only responsibilities that worries me.
  • Gisele Lamarche Statistics have been consistent in reporting that men commit more criminal acts than women. Self-reported delinquent acts are also higher for men than women across many different actions. Burton, et al. (1998) found that low levels of self control are associated with criminal activity. Many professionals have offered explanations for this sex difference. Some differing explanations include men’s evolutionary tendency toward risk and violent behavior, sex differences in activity, social support, and gender inequality.
  • According to the 2015 International Encyclopedia of the Social & Behavioral Sciences, sex differences in aggression is one of the most robust and oldest findings in psychology. Past meta-analyses in the encyclopedia found males regardless of age engaged in more physical and verbal aggression while small effect for females engaging in more indirect aggression such as rumor spreading or gossiping. It also found males tend to engage in more unprovoked aggression at higher frequency than females. This replicated another 2007 meta-analysis of 148 studies in the journal Child Development which found greater male aggression in childhood and adolescence. This analysis also conforms with the Oxford Handbook of Evolutionary Psychology which reviewed past analysis and found greater male use in verbal and physical aggression with the difference being greater in the physical type. A meta-analysis of 122 studies published in the journal of Aggressive Behavior found males are more likely to cyberbully than females. Difference also showed that females reported more cyberbullying behavior during mid-adolescence while males showed more cyberbullying behavior at late adolescence.
  • Common sense for the most part
  • no most of the guilty go free only 1% go to jail
  • No right what so ever render lashes and ryb him down in salt brine even that is not enough punishment for rapist the same should be rendered for gropers as they are evil minded perverts
  • A large percentage of #metoo is incidents that were merely uncomfortable and not rape or assault. Feminists changed the definition and things that were once accepted aren’t now.
  • Maybe (just maybe) the popularity of the #metoo movement will diminish when men stop sexual assaulting women. Just a thought. (And this whole post is gross)
  • “Nearly all (98%) persons charged by police with sexual assault were male. The median age of persons charged was 33, with over one in five (22%) aged between 25 and 34 years old, 18% between 18 and 24 years old, and 14% aged younger than 18 years old. “https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/54866-eng.htm
  • I too am concerned about MeToo. I’m a real life victim of many a horror, and I’ve found that it minimizing rape and sexual assault, vs unwanted behaviour. It isn’t all on the same scale. I’m also the mother of three boys, and am concerned that they will growing up in an era that puts their sexuality on trial, as they try to navigate the fact that our society sells porn, and women as a commodity. However, the fact that this has popped up three times as a sponsored post leads me to think that you have too much time and money. Men are not the victims in the court process, and I can’t believe that you want to make that the issue.
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Drunk student

Drunken University Sex

by Catriona Verner

As parents send their children off to university, I hope they are cautioning them about having drunken university sex.  Not only should their children be cautious about having sex with individuals who are apparently too drunk, but they should be cautious about getting drunk themselves and ending up in a stranger’s bed.  It seems that it is fairly common for university students to drink to excess, and end up having sex in an alcoholic blackout or amnesiac state, such that when they wake up the following morning they do not remember what lead to the sexual encounter in the first place.

 

The question is – when the student wakes up the next morning and does not remember consenting to sex due to a blackout, was it rape?  The answer is NO.  Notably, while they were blacked out, they appeared to be functioning normally, so the sexual partner had no idea they were in a blackout state.  It would be unreasonable to find that the unknowing sexual partner had committed a criminal offence in those circumstances.  In fact, without expert evidence, the evidence of a blackout is not even evidence of intoxication.  It is only evidence that the witness cannot remember what happened.

 

Clearly, not everyone is aware that you can legally consent to sex while blacked out, but some people who should be very aware of that fact include resident advisors at universities and Crown attorneys.  Unfortunately, in one of the cases I am currently working on, a resident advisor and a Crown attorney were both misinformed on that issue.  They both believed that you could not consent to sex while in a blackout state.  My case is a sad case all around.  My client, Francis Tweneboah-Koduah (who asked that I name him in this blog), was an 18-year-old boy who came from Ghana to Ontario to study aerospace engineering.  In his frosh week, just after landing in the country, he was not only trying to make friends like everyone else as they go off to school, but he was also trying to assimilate into a new and very different culture.  After a few nights at school, an equally young girl flirted with him.  According to her friends, she didn’t have glassy eyes, slurred speech or problems walking, but there was no question that if you knew her, you would have known she was intoxicated – she was acting way out of character.  She wanted to go to my client’s room to make out or “something to that effect”.  Unfortunately, she blacked out when she got to my client’s room.  They had sex.  Both the resident advisor and the Crown attorney in my case informed her that since she could not remember consenting, it was rape.  They were both wrong and caused irreparable damage to both the complainant and my client Francis, who have endured years of court proceedings as a result of that misinformation.

 

Francis and the complainant are not the only ones that have endured years of suffering due to one night of drunken university sex.  I recently learned that in one American university, they had a policy to expel any student that had sex with an individual while they were in a blackout state.  One female student woke up one morning realizing that she had had sex with a friend, but did not remember consenting.  She reported the incident and he was expelled.  Soon thereafter, she again had drunken sex with another friend and again, when she woke up she could not remember having consented.  However, on this second occasion, the male sexual partner also could not remember having consented to sex and, realizing she would likely report the incident and get him expelled, he reported the incident first and had her expelled.  Ironically, she thereafter sued the university.  That story exemplifies, why it cannot be a criminal offence to have sex with someone while they are in a blackout state.

As I said, parents should be warning their kids about drunken sex as they send their children off to school.

Image: The College Student’s Guide to Safe Socialization

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