Jarnhamar said:
Have you been a witness, victim or assisting officer type person at a sexual harassment or assault trial?
During the early part of my legal career I practised a broader range of law then I finally settled into. It included criminal and family law and I was involved in acting on a half dozen cases involving sexual assault (three of them children).
Our type of legal system is called an "adversarial process" where, in effect, two or more parties on opposing sides of the issue are involved with both presenting evidence favourable to their side and tearing down the evidence which is unfavourable (usually through cross examining the other sides witnesses or presenting witnesses that contradict the other sides evidence)
The code of ethics of the legal profession requires both a high level of decorum while also requiring that lawyers represent their clients' interests zealously. That obviously leads to circumstances that, to put it politely, will leave a witness in some discomfort, especially if they are a complainant in a sexual assault case. It is a judge's role to balance the truth finding process against an unnecessary and unfair challenge of a witness.
As I mentioned above, the greatest issue with many sexual assault cases is that the sexual act involved could be interpreted as either a consensual (and therefore legal) one or a nonconsensual (and therefore criminal) one. Rigorous cross examinations are often needed to explore the facts presented. This rarely leaves a witness feeling warm and fuzzy about his/her experience in the majority of cases.
All too often criminal defence lawyers become over-zealous in their role (which is one of the reasons I stopped doing criminal law -- I simply couldn't crank up that "last lone knight fighting against the might of the prosecution" attitude) This is where the judge has to step in and keep order. Again, it's a difficult balancing act. On the one hand a witness may be being treated unfairly while on the other an innocent man's ability to raise a reasonable doubt about the crime is being curtailed.
It's long been a legal mantra that "it's better that a hundred guilty men be set free than one innocent man be jailed". To some extent we are leaving that principle behind in sexual assault cases where the mood in the press and in certain quarters of our society seems to be: "where there's smoke there's fire--hang him high".
This is why I don't jump on the band wagon of those who are quick to be outraged by what they read in the press.
:subbies: