Bombshells from Ghomeshi defence (Toronto Sun)

However there exists no evidence of her state of mind during the incident which is more relevant and honest than her third party testimony short periods of time after the incident.

That's not how Canadian law treats consent and state of mind. The only direct evidence towards an individuals state of mind is their testimony, which is considered purely subjective. From the SCC case R.v. Ewanchuk.

The absence of consent, however, is purely subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred. While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trier of fact in light of all the evidence.

And it's worth noting that conduct afterwards is far less important than conduct during or beforehand. From the same SCC case

It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent. The accused’s perception of the complainant’s state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

The trier of fact may only come to one of two conclusions: the complainant either consented or did not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. No defence of implied consent to sexual assault exists in Canadian law. Here, the trial judge accepted the complainant’s testimony that she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt about consent, described by him as “implied consent”. This conclusion was an error.

It basically just ends up being about whether the judge believes that the witnesses/complainants didn't consent to getting struck and choked when it was happening. That she liked it might not matter, whether she acted like everything was all fine and dandy shortly afterwards might not matter either, because it's whether the actions and conduct leading up to the incident reasonably indicate consent was both given and communicated that's important.

/r/FeMRADebates Thread Parent Link -