Why Jian Ghomeshi could get a life sentence (and Julien Blanc should STILL be banned)

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Poor Captain Kirk. He just doesn’t get it.

Oh dear. This really hasn’t been a great week for the PUA types, has it? Julien Blanc has been banned from Singapore, now, and has also cancelled his dates in Norway. It’s not looking good for him in Ireland, either.

And here in Canada, he hasn’t been banned, yet…but he still should be. Why?

Well, because we crazy Canucks have a legal provision against one of the key elements of his “pickup” technique…namely, choking:

Section 246(a) of the Criminal Code of Canada indicates it is an indictable offence to attempt “to choke, suffocate or strangle another person” in a bid “to render another person insensible, unconscious or incapable of resistance” for the purpose of committing an indictable offence.

Yes, that’s right…choking a woman in an effort to get sex out of her (or anything else, for that matter) is illegal here.

This is the same charge that could get Jian Ghomeshi a life sentence, if he’s convicted of it. Choking, suffocation and strangulation all fall under attempted murder. It doesn’t matter if the “context” of the assault is “kinky” or “just a joke” (note the quotes, there for a reason). The act of trying to cut off someone’s air supply is deemed to be violence regardless of “context”.

And while we’re on the subject of context (note the absence of quote here, also for a reason), these are the contexts in which this charge can be laid, as pertains to the Ghomeshi case:

Russell Silverstein, a criminal defence lawyer from Toronto, said the charge can be laid in relation to any number of criminal offences.

“The allegation here, no doubt, is that Mr. Ghomeshi choked his victims with a view to perpetrating the sexual assaults against them,” he told CBC News Network on Wednesday.

“One can be guilty of choking to commit any criminal offence, but in this case, I expect it’s in relation to the sexual assault charges that he faces that are the other four counts.”

Graham T. Clark, a Toronto-based criminal defence lawyer, said the count has been part of the code since 1972.

“It is an additional offence within an offence,” Clark said in a telephone interview on Wednesday.

It is also a count that the Crown must proceed with as an indictable offence because it doesn’t have the option to treat it less seriously.

Being an indictable offence, Clark said, means Ghomeshi will have the choice of having a preliminary inquiry ahead of a potential trial, or head directly to trial.

If a preliminary inquiry takes place, Clark said, alleged victims would have to testify twice should a trial go ahead, as they would be testifying at the inquiry as well.

According to the Criminal Code, a finding of guilt carries a potential penalty of “imprisonment for life.”

So, as you can see, choking someone to overcome their resistance, to sexual coercion or any other kind, is treated under Canadian law as seriously as an attempt to murder somebody. Because life sentences are also handed down for murder and attempt-murder. Why? Because people have been murdered, or almost murdered, by choking. (Well, duh.)

Which brings me back to Julien Blanc, and why he should be banned, not only here, but everywhere.

As I said earlier (here and here), nobody should want or tolerate a violent criminal, or one who advises others to become violent criminals, on their soil. This isn’t a matter of freedom of speech anymore. Canadian free-speech provisions make no allowances for anyone who counsels others to commit crimes. Counselling others to overcome resistance via choking is a crime, even if, as some insist, “no harm is intended”, or “it’s only a joke”.

And yes, that includes Julien Blanc, since his pickup technique quite explicitly consists of what our law calls “overcome resistance — choking”. (Ironically, his violence-promoting company has moved its “seminars” onlinefor fear of violence toward its skeevy instructors!)

In fact, the bulk of pickup artistry, even the less overtly violent stuff, is still coercive, in that it is aimed specifically at overcoming women’s resistance to having sex with a guy they don’t expressly want. PUA “coaches” teach all kinds of weaselly ways at getting around resistance, which some of them call ASD (“Anti-Slut Defence”, meaning a woman’s efforts to seem “pure” and “respectable”, even when she supposedly wants sex more than anything), or LMR (“Last Minute Resistance”, which everyone else would realize is not just resistance but really NOT FUCKING FEELING IT, BUCKO). They have a whole grotesque lexicon dedicated to just such BS, in case you wondered. They blatantly advertise their “expertise” at “turning a No into a Yes”, and teach their charges that “No means Yes”, too. And that they should just keep going until they don’t hear “No” anymore. And then move in for the kill — er, “close”.

This is, I should add, also illegal in Canada.

Much of the public conversation in both cases has been around the idea of ‘‘explicit consent,’’ suggesting someone who is unwilling has to make it crystal clear. But the law is decisive — and even places the burden of proof on the accused.

“There’s a big gap between social understanding and the legal standards,” said Lise Gotell, a professor of women’s and gender studies at the University of Alberta who studies sexual assault law. “This [big gap] is an unusual situation in which the law has pushed ahead of commonly accepted behaviours and norms.”

The “commonly accepted behaviors and norms” to which Professor Gotell is referring include the common PUA notion that “No Means Yes”, or “Turn Her No Into a Yes”. And also, the idea that not saying No (or not saying No anymore after several disregarded repetitions) is, in effect, saying Yes.

“The idea of explicit consent is dangerous because it plays on and is contrasted with the idea of ‘implicit consent’ or ‘implied consent,’ and there is no such thing in law,” Prof. [Melanie] Randall told the National Post. “The idea there is such a thing as implied consent has been thoroughly repudiated in Canadian law.”

That repudiation came in the form of R. vs. Ewanchuk, a 1999 Supreme Court of Canada case concerning the defence of consent to a charge of sexual assault. In that case, the victim had repeatedly said “no” to Steve Ewanchuk’s advances, but he argued that no further verbalization of “no” as things progressed meant consent was implied. The Supreme Court held that there was no defence.

This came seven years after the sexual assault reforms of 1992, which, at their core, introduced the standard that “reasonable steps” were taken to ensure the prospective sex partner really wanted to engage in sexual activity. Silence and lack of resistance do not equal consent.

“Now it is more common for defendants than it used to be to assert a mistaken belief defence and these defences [often] tend to be based upon miscommunication,” said Prof. Gotell.

It may be more common to assert that now, but it’s still wrong, and ought to be inadmissible in court, along with any questions pertaining to a complainant’s sexual history. No “No” does not mean Yes; no more “No” does not mean Yes, either. And to assume you got a Yes just because you didn’t hear No, and to claim as much in court, ought to get one nothing but ridicule from the judge and jury, and ought to get one’s slimeball shyster of a defence attorney disbarred if they even once try that gambit in court.

It’s not, as is commonly asserted, a case of “He said, she said”; in fact, it’s far more often a case of “He did, and she said nothing”. Because we don’t understand that our law, in fact, requires affirmative consent, and there is no “implicit consent” provision under Canadian law.

Little wonder that so few sexual assaults in Canada are even reported, never mind prosecuted.

Maybe more of them would be, if we were all informed of our legal rights and obligations surrounding consent from an early age. Preferably middle school, with refresher courses at the high school and post-secondary levels. These should be mandatory, so that no one can claim ignorance of the law. After all, ignorance is not a legal defence. As soon as kids are old enough to start learning and thinking about sex, they should also be considered old enough to know exactly what the laws of our land say about it, and to discuss those laws in class.

That way, we might not have so much of this inane and damaging Menz Rightzer pushback every time there’s a “No Means No” or “Don’t Be That Guy” campaign. We might even have fewer sexual assaults down the road, and a much greater success rate with laying and prosecuting charges, too. Who wouldn’t like to see far fewer guys like Jian Ghomeshi getting away with sexual assault and physical abuse for fucking years before anyone even thinks to say boo?

And fewer PUA douchebags on our soil would be a welcome bonus, as well.

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