Governmental Traumatizing Investigations
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The operative assumption is that subjecting bar applicants to moral scrutiny will help to exclude the unscrupulous from practicing law, thus protecting the public from bad lawyering as well as maintaining the good public image of lawyering. Generally, desirable character traits include: honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others, fiscal responsibility, physical ability to practice law, knowledge of the law, mental and emotional stability, and a commitment to the judicial process.
If Kavanaugh is denying an incident that did actually happen, he would be more dangerous as a Supreme Court judge, and even less fit to practice law. Dishonesty is not a quality we want in judges, especially not those entrusted with the most important decisions in the land on the highest court of all.
Kavanaugh previously passed character examinations and FBI background checks. There would be no reason to doubt the previous reviews until now. Some Republicans agree that the allegations against Kavanaugh should be properly heard before his confirmation is allowed to continue. Meanwhile, even Kavanaugh seems willing to slow things down somewhat if it will clear his name or save his prestigious nomination.
Skip to navigation Skip to content. Character and fitness for the bar Every lawyer who is admitted to practice in the 50 states and Washington DC must pass a character and fitness examination. He writes: The operative assumption is that subjecting bar applicants to moral scrutiny will help to exclude the unscrupulous from practicing law, thus protecting the public from bad lawyering as well as maintaining the good public image of lawyering. Footnote Most sexual assaults do not involve a weapon other than physical force imposed by the offender. Unlike physical assaults, most sexual assaults do not result in physical injury to the victim.
Many sexual assaults are not reported in the immediate aftermath of the crime.
Footnote This issue was recently analyzed in detail by CCJS, using police-reported records on the delay in reporting of the crime to police. Of crimes not reported on the same day, the median delay in reporting to police was 12 times longer for sexual assaults than for physical assaults.
Delayed reports of sexual assault had higher instances of missing or unknown information in the police file compared with those that were reported on the same day, which indicates the diminishing availability of evidence and information about the crime as time passes. Some victims may wait months or even years to report, due to factors such as shame, trauma or fear of reprisals. The delayed disclosure of a sexual assault often means that physical evidence is minimal or no longer exists. After years of Canadian courts hearing expert evidence in domestic violence and child abuse cases, the SCC recognized that delayed and incremental disclosure is a common behavior in sexual assault cases as well and, as a result, a standard jury instruction on that issue was developed.
While delayed disclosure has the greatest impact on the investigation — namely, the availability of evidence and locating witnesses — it also can impact the process of the prosecution. Sexual assault is a hybrid offence, which means that it can be prosecuted either summarily or by indictment, depending on the severity of the crime and the potential sentence sought. If the Crown wishes to proceed summarily for a particular offence which would generally be the case for less intrusive sexual assaults short of penetration , the offence must be charged within six months of the offence.
Otherwise, absent consent by the accused, the Crown would have to proceed by indictment.
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Extending the limitation period for summary matters would allow more cases where there is a delay in reporting to proceed by way of summary conviction. For those victims that do engage the criminal justice system, studies show many indicate that the process was long and difficult. Footnote Many victims cite the fear of testifying and not being believed as their primary concern with the process.
Footnote In addition, victims often expressed frustration with the perceived unfairness in the way the victim is treated compared to the accused. Studies show that there is a perception among some victims of sexual assault that the accused is not punished, or any punishment imposed does not reflect the gravity of the crime given the devastating impacts of sexual violence on victims. Footnote While many of these frustrations are experienced by victims of a variety of crimes, the personal nature of sexual assault and the negative impact of rape myths can add additional challenges for sexual assault victims.
Many of the reasons for the attrition rates at the prosecution stage parallel the challenges at the investigation stage. However, there are additional challenges for victims that are specific to the adversarial trial process. Footnote Testifying and being cross-examined before an open court are extremely difficult for many sexual assault victims and can result in their re-victimization as they are forced to relive their experiences, often repeatedly, during trial.
While cross-examination is an essential component of the adversarial system and required to ensure the fair trial rights of the accused, having to testify both at the preliminary inquiry and again at trial, sometimes years after the offence took place, is particularly difficult for victims of sexual assault. A preliminary inquiry will be required if the Crown proceeds by indictment in the sexual assault case and the accused elects a preliminary inquiry with the trial to be held later.
Governmental Traumatizing Investigations by Fonseca & Maryann | Fruugo
In preliminary inquiries for sexual assault cases, victims are cross examined for often lengthy periods of time by defence counsel to test their reliability and credibility. It is very difficult for victims to go through cross examination a second time at trial and be cross examined additionally on the transcript of their testimony from the preliminary inquiry. Victim surveys also indicate that an early resolution and acknowledgement of responsibility by the accused is one of the primary desired outcomes for victims.
As the consequences of a conviction for a sexual assault are significant - including the mandatory minimum penalties imposed on certain sexual assault offences, the mandatory registration of the offender in the Sex Offender Information Registry , and the public stigma of conviction — the accused may have more reason to exercise his right to have a trial. Prosecutorial discretion to apply for a SOIRA order and judicial discretion to refuse to make the order under certain circumstances was removed in Footnote A complete lack of judicial discretion even for remorseful first-time offenders of minor offences can pose challenges for early resolution of some offences and some academics suggest may not always be justified, given that recidivism rates for sex offenders are no different than for offenders of other violent crimes.
In addition, community-based sentences are not available for sexual assault cases prosecuted under section by way of indictment or where the offence charged carries a mandatory minimum penalty section However, in some cases, some experts suggest, community-based sentences may be appropriate e.
Some victims have indicated a desire for the availability of non-criminal or alternative responses to offending.
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Footnote The use of restorative justice in adult sexual assault cases is discussed in more detail in Chapter 5. The Working Group examined various criminal justice system responses to sexual assault against adults both from across Canada and from other common law jurisdictions. The practices highlighted in this chapter serve to illustrate the wide range of promising and emerging practices that some Canadian jurisdictions have already adopted or may consider adopting. Although Canada has legal traditions that originate in the French civil law, the English common law and, increasingly, Indigenous legal traditions, the Canadian criminal justice system is founded on the common law tradition and is adversarial in nature e.
As a result, the Working Group focused on promising and emerging practices from other common law jurisdictions in an effort to identify potentially transferrable practices. This is usually assessed through an evaluation that has been conducted of the practice, which can be relied upon to indicate that the practice holds promise for others who may be considering adopting a similar approach. The Working Group also identified many practices that have not yet benefitted from an evaluation, but are nonetheless innovative and hold promise based on their novel approach.
The Working Group did not conduct primary research but focused its assessment on existing evaluations and survey results with an emphasis on the views of victims. The promising or emerging practices identified in this chapter have been grouped into the following categories: 1 horizontal strategies and public awareness campaigns; 2 multi-sectoral, victim-centered and trauma-informed responses; 3 practices to enhance reporting and investigations; 4 practices to enhance prosecutions; and 5 alternative approaches.
While all provinces and territories have action plans or strategies to address violence, family violence or violence against women, within which sexual violence is addressed, a number of provinces have created specific strategies related to sexual offences. Public awareness campaigns often form part of a larger government-led strategy although they may also originate from community-based organizations. A number of provinces and territories have specific sexual violence strategies or actions plans and at least two have dedicated resources identified for these initiatives. In addition, this reflected the third sexual violence action plan for Quebec.
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This serves as an example of a promising practice that demonstrates transparency and accountability. It also served as the basis for the subsequent strategy. There are a multitude of examples of promising practices in relation to outreach and public awareness efforts from across Canada. While many of these are not directly linked to the criminal justice system, they can play a critical role in raising awareness of what constitutes criminal behavior and what victims can do in the event of sexual victimization.
There are a number of campaigns that have subsequently been adopted by other jurisdictions within Canada. The campaign has gained wide support from post-secondary campuses in Alberta. Similarly, Saskatchewan adapted the Ontario social media campaign, Who will you help, which features videos depicting situations where vulnerable and intoxicated young women are targeted in public spaces.
TO which helps survivors of sexual assault navigate the criminal justice process. Specific sexual assault strategies or action plans have the advantage of signaling political commitment to addressing the pervasive issue of sexual assault. They can also frame the criminal justice system response to sexual assaults within the broader context and promote a wide range of actions from primary prevention to intervention and treatment programs.
Many of the promising or emerging practices that are featured in the following subsections form part of strategies and action plans. A number of Canadian jurisdictions have multi-sectoral and collaborative responses for victims of sexual assault also described as multi-agency or multi-disciplinary responses. Many of these responses involve interagency protocols to facilitate victim referrals and some adopt a hub model Footnote whereby victims can attend one principal location to receive a range of health, social and criminal justice system responses.
South Africa uses a system of response centres, called Thuthuzela Care Centres TCCs , which are located in hospitals and staffed by specialized medical professionals, social workers, and police. Victim assistance officers are also on hand to explain procedures and to assist victims through medical examinations and in reporting to police.