Quote:
Originally Posted by 1990C4S
The law is simple: you can't agree to be assaulted. Assault is assault.
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This is a fundamental misstatement of law. Assault is a specific intent crime. People are able to consent to all manner of contact that would be a crime in other context. It is generally illegal to run at a person at top speed and grab him around the middle and try to separate his head and his feet, particularly if he isn't looking, but if you're in a football game you've consented to that contact that would be an assault in other contexts. Likewise, kissing, sexual touching, or intercourse can be rape or a mutually pleasurable experience, depending on the intent of the participants. If the conduct was mutual at the time, or the person later accused of assault has a reasonable basis for beliving the conduct was consensual, there is no mens rea and therefore no crime. Finally, the victim cannot consent at the time and then later decide she (he) was coerced and claim assault after the fact. The issue is whether at the time the conduct took place the defendant meant to, or reasonably should have known, he (she) was exceeding the consent by the other party.
The prosecution is in charge of its case. It doesn't charge cases until it has investigated the charges and determined they can be proven beyond a reasonable doubt. As the case progresses the prosecutor has a duty to continue to evaluate the witnesses and evidence, to pressure test them, if you will to make sure they stand up. And if at any time the prosecutor thinks he or she cannot obtain a conviction, it is their duty to dismiss the case. A prosecutor is a minister of justice whose ethical obligation is to justice, not obtaining a conviction. If they think the crime cannot be proven, let alone the defendant was innocent, the prosecutor has a legal duty to dismiss the charges.
The Crown was not blindsided. They may have been surprised but the evidence was there for anyone to see. It was all exchanged long before trial. That is required by the discovery process. The prosecutors knew about the emails and other contact. If they didn't pressure test their witnesses and see why they seemed to have consented to the conduct as suggested by their emails and post-sex conduct, then they were truly flying blind and deserve the ringing defeat they received.
I suspect they knew exactly what the evidence was and decided to forge ahead regardless. Sometimes it's easier to take a case to trial, lose it and blame the judge or jury than it is to explain why you dismissed it. I don't envy the prosecutors - they received a bad hand - but they played their cards badly.