Legal Procedure in VAW Cases: Where does the law stand?

Violence against women is a serious issue all around the world that must be dealt with full force and careful analysis. It is difficult to uphold a legal balance when a man is accused of an abhorrent act such as violence toward a woman, sexual or otherwise. Such cases must be carefully investigated, and individuals proven guilty of such heinous crimes must be kept from committing these acts of violence ever again.

Due to the history of violence against women and the inequality between the genders, we have established a “compensation-based” legal system. This means that we are living in an age where our legal/judicial system constantly attempts to “amend” or make amendments to laws once bred systemic acts of violence to women, religious/ethnic minorities, and homosexuals. All these attempts and intentions for equalizing our rights as individuals and citizens of society are well and correct. However, from a legal point of view, as long as our justice system provides legal context merely for amending its historical neglect and past mistakes, it cannot provide a truly equal society for all.

I would like to discuss one particular pillar of our justice system that acts as the vehicle to safeguard our rights and preserve our equality before the law. This would be the fundamental principle that we are all “innocent until proven guilty”. Now, in our judicial system it is important to be mindful of its true meaning. What this principle provides us is the right of an accused to due process and legal procedure, wherein the accused must defend the allegations brought against him or her, but more importantly, it is incumbent on the prosecution to prove the accused as guilty of the charges. These are procedures in our legal system we have used for many years in order to give a fair and unbiased judgment based on evidence provided.

The legal system we have today however, with all the procedures and functions of our constitution and our amended individual rights,  in my view, is still flawed. For example, there are some cases where law and reason are apprehended by public sentiments and expectations of the law to keep its vow to compensate for historical neglect and “legal-malpractice” against oppressed women and minorities. What the law needs is an unbiased point of view, clearly. But today, due to our justified sensitivities and historical baggage regarding such topics as violence towards women, the law seems to be inept in properly dealing with and assisting accusing parties of rape, while properly protecting the rights of the accused of such serious allegations.

With the advent of the age of social media and easily accessible information circulation, the law has taken a back seat in properly addressing these serious matters. When an individual is accused of a crime, he or she is accused yet “innocent until proven guilty”. But in matters of rape and violence against women, due to the sensitivity of the matter, the law seems to retreat and thus the accused becomes “guilty until proven innocent”. I say the law retreats because it allows for anyone to accuse an individual of such serious allegations, without protection of the accuser or the accused in this matter.

There have been numerous cases where women have been too intimidated to go to the police to report matters of sexual violence, and many have looked for alternative channels, such as the media. The law must directly provide mechanisms and programs for police to follow to make women more comfortable in seeking the police in the advent of such horrific incidents. This neglect by the law also neglects the accused, since the accused has little recourse to protect his or her rights especially if the accusations are completely false and without merit. With the age of advanced communication and new age technology, one can go from “zero to hero”, or “hero to zero” in a matter of tweets.

Thus, it is incumbent upon our judicial system to devise certain procedures and policies in dealing with such allegations, considering the repercussions for the individuals involved. It is the duty of the law to be fair and balanced when dealing with arguably the most sensitive issues in society. For our judicial system to remain inactive in these circumstances is to the detriment of our justice system, and our democracy.

Although, it is a preliminary thought, I propose certain rules or regulations to be followed when encountering such sensitive issues. I hope it can help in providing a basic idea as to more complex solutions to be structured into our legal system to better protect all individuals and provide equal treatment to men and women before the law.

I propose:

1) There be a publication ban on allegations of sexual violence against an individual accused of such charges until the accused has faced the charges in a court of law and has been proven guilty in court.

2) There be better programs available to victims of sexual violence, to make it safer and more confidential when approaching the police. Since, the main obstacle to approaching the police seems to be a media backlash, again, all such allegations must be protected from media reports, until an investigation has taken place and allegations have been proven to be true.

3) As mentioned, it shall be illegal for media outlets to publish accusations of sexual violence since it is not yet proven in a court of law. Such allegations have serious consequences for all parties involved, especially the accused, and thus, the rights of all parties must be protected at all times. The repercussions would and should consist in allowing the accused to sue any media outlet that reports an allegation(s) of sexual misconduct prior to the verdict of guilt or innocence. Any interviews by media outlets of accusers should be banned until the court hears the accuser’s allegations.

Why Is There A Debate On Legalizing Prostitution in Canada?

ARTICLE OUTLINE
• Questions of debate/discussion to analyze
o Through what lens is the government viewing this matter?
 Is it through a moral/ethical lens?
 Or is it through a “free market” capitalist viewpoint?
 Or is it a stance unrelated to either of the aforementioned reasons, and more to do with the basic principles of Liberalism?
o Why is the government, or more importantly the Supreme Court, now considering a different stance concerning the validity and legality of sex trade?

Reconsidering the Sex-Trade

I found it interesting and a bit surprising when the Supreme Court of Canada struck down the validity of the ban on prostitution. It is fascinating for many reasons and breeds much discussion for or against its merits for legalization. It indeed shows how far along we have come in secular society to decide based on logic and thought-provoking arguments to come to this consensus in our Liberal democracy in Canada. What we can take from this is that our constitution in Canada is not set in stone and untouchable, and this progressive attitude has always been refreshing to see and witness in this country. However, we should also be aware of the reasons for this change in thought and the ideological influences that have led us to reconsider the legality of some controversial issues such as prostitution.

The Canadian system of government is of course founded on the basic principles of Liberalism and the undeniable rights we guarantee to all citizens regardless of race, gender, religion, sexual orientation, etc. We are blessed with right to a fair trial and equality before the law afforded to all, citizen or not. Our freedoms, like any other matter have limits. We are cognizant that we are free to speak, to act, to protest, and express ourselves as long as we do not harm others. This “harm principle”, first introduced by Liberal thinker John Stuart Mill in his book titled “On Liberty”, explains this notion that we are free as long as we do not impede the freedoms of others, through physical or psychological abuse.

If I may ask our government the following question, I would be delighted if I received a response. That is, if our basic principles of democracy are arguably, a calibration of the works of Thomas Hobbes, John Locke, Immanuel Kant, among others, then why have we not adopted a more liberal approach to prostitution in the past? These thinkers had a relatively similar argument that a government’s role in the private lives of its citizens should be minimalistic. Thus, why have these recent reconsiderations of the legality of the sex-trade (which clearly do not “harm others” if supervised by authorities under strict regulation) not come sooner? One could argue that the role of religion was all too present in the public and private lives of citizens, which is now arguably much less apparent in modern society.

But to simplify the matter and our ability to debate the legality of prostitution to the undermined role of religion would be a mistake. Religions in secular society are strong and influential in the lives of those who choose to live under its guidance. Faith is still prevalent, but of course, its role in making or influencing political decisions has been diminished to minimal influence. So, how can we account for the sudden change of heart by the Supreme Court of Canada? Is it based on simply a Liberal account on the right of a sex-worker to sell his or her body for pay? This last sentence and change of terms helps those making the case for the legalization of prostitution because its wording frames the matter quite differently.

The legalization of prostitution now not only becomes a matter of individual liberty, but also grants merits for “worker’s rights”. It is now not a matter of not just a liberal juxtaposition, but one that introduces a capitalist “free market” ideology and the undeniable right for all to use their bodies to sell their “labour” for pay. This “Lockean” terminology makes it increasingly difficult for the courts to uphold the current laws and easy to question its validity. Labour is a man or woman’s use of his or her skills either physically or otherwise to receive pay in exchange. In our capitalist society, once we accept that our need to labour is a consequence of the fact that as individuals, we too are commodities, then we can see why in a “free market” society it would be difficult to sanction against a prostitute’s right to use his or her body for commercial use.