Ghomeshi Trial Begins

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pookie

6079_Smith_W wrote:

I'm talking about rape shield laws.

So, you mean, like the rape shield laws that Canada already has: s.276 of the Criminal Code.  Which weren't an issue here.  

 

pookie

6079_Smith_W wrote:

Do you really believe that?

Kind of a hierarchical approach to progressive change, don't you think? I thought we all had responsibility to do things ethically and responsibly.

...

From Professor Alice Wooley's blog posting, mentioned by Unionist above (post 936), analysing the ethical responsibilities of the Crown in a way that I am sure you would agree with:

"Because let’s be absolutely clear: it is the ethical duty of a defence lawyer to make prosecution witnesses look like liars, even if those witnesses are telling the truth. That duty is constrained; a defence lawyer must not harass a witness, and must remain within the boundaries of the legal restrictions on cross-examination (in a sexual assault case, e.g., not asking improper questions about the complainant’s sexual history). But within those constraints a defence lawyer will do his best to exploit any inconsistency or weakness in the witness’s evidence to make that witness appear to be non-credible. Whether or not the witness is in fact telling the truth is not only irrelevant, it may make discrediting that witness essential to the defence lawyer’s ability to obtain an acquittal for his client."

With respect, it doesn't seem like you know much about the sort of ethics that applies in a criminal trial.

 

Paladin1

Misfit wrote:
Is this really the feminist forum?

 

So he should be?

6079_Smith_W

Pookie, I already said, quite some time ago and several times, that people were correct in saying this was by the book. 

I have also said several times that is not what I am talking about.

There are plenty of things which are legal, but which are unethical in the broader sense (like not leaving the impression that women like men who beat them up, or the if they do contact attackers that means it was not assault).

I might not have your professional training, but yeah, I was aware that that was sort of how it works (part of the reason I disagreed with kropotkin upthread).What I see is the stark difference between the rules of the game, and anything approaching justice. Just because it is how our adversarial system works does not make it right, or absolve those who work in it.

Mr. Magoo Mr. Magoo's picture

Quote:
Kind of a hierarchical approach to progressive change, don't you think? I thought we all had responsibility to do things ethically and responsibly.

Whenever someone publishes an offensive cartoon, and we end up discussing "freedom of speech", we generally all either vigorously support or or at least acknowledge the need for it, but then someone will inevitably suggest that even with "freedom of speech" (and the corrolary limits on hate speech), cartoonists and others should still self-censor their offensive comments. 

So "freedom of speech" tells us what we can say, and hate speech laws tell us what we can't, but there's supposed to be some quasi-enforceable middle ground, an unspoken agreement amongst all of us to choose to not be offensive and if we don't choose that then we're not guilty of hate speech, but we're surely guilty of something.

This is kind of reminding me of that.  Henein wasn't in violation of legal standards, "but still, she should have been kinder and gentler".

I think that VOTD is correct, that if Ghomeshi had had reasonable cause to believe that Henein was holding back out of sympathy with the witnesses, we wouldn't be discussing the Ghomeshi trial, we'd be discussing the Ghomeshi mistrial.  The system might be broken, but Henein didn't break it.

pookie

I guess the problem I am having, Smith, is that you keep distinguishing between the "legal" and the "ethical", but you don't seem to realize or accept that different ethical considerations apply to defence counsel.  Henien wouldn't be breaking the law if she failed to render Ghomeshi the fullest assistance that she could out of some broader sense of wishing to do "justice" as you seem to define it.  But she would be acting unethically.

A lawyer has some scope to choose her clients.  Once chosen, she has a narrow set of parameters within which she can fulfil her ethical obligations.

6079_Smith_W

Yup, I am making that distinction. And as with systems like capitalism, and fiduciary duty to maximize profit at all costs, this is less about not understanding how it works than seein all too well what it is designed to do by its results, in incarceration rates, and in failed convictions. 

Sorry, but I don't see it as business as usual.

Unionist

Pookie - why do you bother? Though I do admire your resilience.

pookie

Unionist wrote:

Pookie - why do you bother? Though I do admire your resilience.

Not sure.  :)

I guess I'm done now.

 

Devogenes

Smith - why do you bother? Though I do admire your resilience.

6079_Smith_W

Funny thing is, unionist, I half thought you were bei g facetious back at 908. How is one to seek justice if not by challenging flaws and abuses within the system?

Just a rhetorical point.

Mr. Magoo Mr. Magoo's picture

It's always been my thinking that if a highway has a posted speed limit of 100kph, then a driver who can safely drive at 100kph is doing nothing wrong.  Certainly not from a legal standpoint, but also from a moral standpoint.

If someone believes that 100kph is "too fast" then they're certainly welcome to advocate for a slower speed limit, but I see no merit in them scolding that driver for not choosing to drive slower.  If cars moving at 100kph is just too fast then this isn't the fault of that one driver, and it's nonsensical to say "well, he doesn't have to drive that fast!" or "if he weren't so selfish, he'd ease up on the gas!!" or whatever.

So is the problem the system?  Or is the problem really Henein, and the fact that she didn't oppose it?  If the problem is Henein, we need to keep discussing Henein, but if the problem is the system then what does she have to do with the real problem?

6079_Smith_W

Do I need to restate that I think it is both? 

And are you saying there is no such thing as an unjust law or abuse of the system in your worldview?

Slumberjack

Well, it was a good conversation while it lasted.  But the twits have returned to attack the participants as contributors to rape culture, and so that's that.

Paladin1

Slumberjack wrote:

Well, it was a good conversation while it lasted.  But the twits have returned to attack the participants as contributors to rape culture, and so that's that.

 

Unfortunately I agree. 

I understand the theory why this was moved to the feminisim forum.  In practice this seems to be what always happens.

voice of the damned

6079_Smith_W wrote:

Do I need to restate that I think it is both? 

And are you saying there is no such thing as an unjust law or abuse of the system in your worldview?

Smith:

In some jurisdictions(most of them not renowned for a commitment to feminism), the law mandates that employers provide paid mesntrual leave for women, over and above whatever sick days are given to employees in general.

Now, people can have different opinions about this, but I happen to think that these laws are kind of sexist, and I'll even go so far as to say that they are theoretically rooted in the same sort of assumptions about "feminine nature" that underlie reactioanry laws around sexual assault.

BUT...

If I'm working as a union official, and a woman from a factory calls me and says that she wants to take menstrual leave, but management won't allow it, do you think I should have the right to say "Sorry, I'm not gonna make that argument to your boss, it just validates sexist stereotypes"?

I don't know what your answer to that question would be, but mine is a resounding no. A union official's duty, among other things, is to assist workers in exercising their rights under the law. And, according to the law in my country, women are allowed to take a certain number of days off work during their menstrual period. End of story.

And it may very well be that the existence of that law is causing problems for women elsewhere, eg. bosses might point to it as "proof" that women are physically or mentally incompetent, and thus shouldn't be hired. And certainly, I could support feminst efforts(possibly even with labour support) to eradicate those laws, or, better yet, get added sick days for everyone, regardless of gender.

But until such time as the government does repeal menstrual leave, advocating for an employee's right to avail herself of it is not "an abuse" of the labour advocacy system. It is doing exactly what the system requires me to do.

MegB

Closing for length. See this thread for a continuation of a related discussion.

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