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Jian Ghomeshi: Rough Sex, Sexual Assault and the Criminal Law

Is Jian Ghomeshi innocent?

In the media frenzy surrounding the allegations against Jian Ghomeshi, it is important to keep an open mind in spite of the number of women who are making allegations against him.

According to the Canadian Charter of Rights and Freedoms, every person is presumed innocent. This presumption of innocence has been referred to as the golden thread that runs through our criminal law. The presumption of innocence should work to protect each one of us from conviction of a criminal offence, not only in court but in the court of public opinion.

The Media’s Influence

In the course of a week, Mr. Ghomeshi has fallen from media hero to media zero. He lost his job as the CBC golden boy, the company that he hired for damage control has kicked him to the curb, his former bandmates have disassociated themselves from him, and the Toronto Police Services are collecting complaints from women who allege inappropriate contact with them.

The feeding frenzy is so furious that the only antidote will be a room without a view.

Has he broken any Laws?

The criminal law is very clear on the subject of sexual assault and rough sex. Any person who intentionally touches another person without their consent commits an assault.

If the touching is for a sexual purpose or is in a sexual part of the body like the breasts, the crotch, or the buttocks, the non-consensual touching constitutes a sexual assault.

There is nothing illegal about two (or more) consenting parties who choose to engage in rough sex, as long as the parties consent to the sexual activity and have the capacity to consent (meaning they’re not intoxicated, they’re above the age of consent, or they’re notintellectually challenged), the criminal law isn’t interested in their sexual behaviours.

If the Women Consented to it, can He Still be Charged?

There is one notable exception to this principle in relation to any type of assault- domestic assault, sexual assault, or an assault between strangers: One cannot consent to bodily harm.

Bodily harm is interpreted as any physical or psychological injury that’s not transient in nature.

In the context of rough sex, there’s a lot of room for interpretation.

It is a criminal offence to engage in consensual rough sex that causes physical or psychological injury to either party. In practical terms, the person who causes the injury is at fault, whether the recipient invites the injury or consents to it.

Still, with all of the above in mind, Jian Ghomeshi is presumed innocent.

It’s time we let the police investigate and the Courts rule on the evidence before he is convicted in the Court of public opinion.

15 Oct 2014

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