What is “overcome resistance” ? Charges Against Jian Ghomeshi

Although most individuals are familiar with the definition of sexual assault many are baffled by the “overcome resistance” charge in Jian Ghomeshi’s case. Find the answer below.

Under section 246 of the criminal code, overcome resistance is defined as:

246. Every one who, with intent to enable or assist himself or another person to commit an indictable offence,

(a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or

(b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing,

is guilty of an indictable offence and liable to imprisonment for life.

R.S., c. C-34, s. 230; 1972, c. 13, s. 70.

What are your thoughts on the charges?

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2 comments

  1. So they have to prove his intent “to render another person insensible, unconscious or incapable of resistance”

    Wouldn’t that be very difficult to prove?

    He engaged in these acts as a fetish from what I know, I don’t think he intended to have them become “unconscious” or “incapable or resistance” per se.

    Liked by 1 person

    1. Hi Nab! Thanks for the comment and taking the time to read this piece.

      Although it might be a challenge to prove the mens rea (guilty mind) , the actus reus ( guilty act) might be easier to prove.

      I’m not familiar with the specific sexual practices Ghomeshi was using so I don’t want to speculate; however, an expert witness in this field may be able to speak to the intent behind choking someone while practicing these sexual acts. An expert witness can explain if such actions are usually performed to only induce arousal and not to harm the person being act on or conversely, if Ghomeshi took it too far. Another point of evidence can be the victim’s interpretation of the act and her actions following it for instance: Did she tell him to stop and did he continue? Did she attempt to resist? Did she lose consciousness? Was it evident that she couldn’t breathe properly? If the women tried to resist and he continued then it would seem as he was forcing himself on them and rendering them unconscious would make it easier for him to sexually assault them.

      There are also mitigating and aggravating factors that can help determine if he had the intention render her incapable of resistance such as if the women were tied up or pinned down. This could render them incapable to resistance.

      He may have a fetish but if it wasn’t consensual and the women weren’t aware of his practices, it constitutes sexual assault.

      Hope that helps! Please feel free to ask further questions for clarification if I didn’t make something clear.

      Like

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