A post-Ghomeshi guide to reporting sexual assault
‘Reasonable doubt’ tinged with too much grey
Pausing to look down at those who’d come to denounce or defend him outside the Ontario Court of Justice, a smile tugged at Jian Ghomeshi’s grey face. He was, pending a second criminal trial in June, free.
That smile, a thin line that could not be checked by stern legal advice or angry protesters, bloomed as the former CBC broadcaster finally lifted his head. Fully surveying the thrumming crowd for the first time in his 16- month “ordeal,” Ghomeshi’s mouth tipped up at both ends into twin parentheses. Victory.
The justice system was content to acquit him of serious criminal charges while many, including the judge, were unable to rule out the possibility that something illegal may very well have transpired between Ghomeshi and his three accusers.
In the aftermath of this society-thrashing trial, Ghomeshi’s much maligned Facebook page after CBC fired him in 2014 for conduct unbecoming remains his anthem:
Let me be the first to say that my tastes in the bedroom may not be palatable to some folks. They may be strange, enticing, weird, normal, or outright offensive to others. We all have our secret life. But that is my private life. That is my personal life. And no one, and certainly no employer, should have dominion over what people do consensually in their private life.
When accused, an alleged attacker need not prove there was consent; it is up to the alleged victim to prove there wasn’t. And, as this case establishes, actions they may take to heal a relationship, deny their victimhood, or increase their chances of being believed can be fatal to their cause.
A quick survey of my college journalism students post- verdict revealed some saw the decision as tips on what not to do if you’re sexually assaulted.
Indeed, University of Saskatchewan law professor Michael Paxton tweeted after the decision came down that requiring women to self- manage themselves as “ideal victims” smacks of a second generation of probl ems f l owing f rom rape myths.
Here t hen, The Post-Ghomeshi Guide to Reporting Sexual Assault:
If you are grabbed about the neck, yanked hard by the hair, smacked across the face or assaulted in any way, even in the midst of romance, detach immediately with the psychological cool of a trained therapist. Gather evidence like a CSI pro immediately — a saliva swab for DNA, a photo of slapped cheeks, and bag your panties. Leave immediately without explanation or inquiry. Call 911 or proceed directly to the police station, and report every nuance of your date, including his wardrobe, his car, his sexual techniques and his pattern of battery. Injury or trauma will be no excuse for imprecise recollection. If the media independently turns up evidence against your accused, provide the public with every detail of your ordeal, including the fact you may have tolerated the abuse for the sake of the relationship. Tell the media and the police the precise questions to ask you so your answers may be used to discredit you in court later. Do not under any circumstances speak with others who may have endured similar abuse, especially not if the alleged attacker is the same. His proclivity is your conspiracy. Do not use social media to contact others, nor feel bolstered by the support of famous people, such as Mia Farrow. You will be seen as a media whore.
No one is defending false testimony, but the Ghomeshi trial was so derailed by dissecting the aftermath that the essence of the charges — whether the women con- sented to being hurt — was never really tested.
That’s not Ghomeshi’s fault, unless you believe he’s guilty, and it’s certainly not Marie Heinen’s, who provided her client with a legal defence anyone facing prison time, sex- offender registration, unemployment and a travel ban would welcome.
This case turned on the complainants’ failure or refusal to speak candidly about the post- attack relationship with Ghomeshi, and the adverse inference the judge drew from what he saw as lies and deception.
And that’s just one of the catch- 22s that sex- assault victims, male and female, encounter on the primitive path to justice.
When a young boy with dreams of the NHL sticks with the coach who’s abused him for years, as one of my friends did, is he less a victim? When a mother stays vigilant to keep children out of striking range of her husband’s belt but assures police nothing i s wrong when t hey ask because she’s ashamed or needs his income, did the abuse never occur? How innocent are men, and how guilty women, if they continue to emotionally and sexually long for a man who shows a violent streak? How about if he promises to stop watching porn, and agrees to date nights?
Is what you do after you are attacked always more important than what is done to you?
The debate of extremes between those who want Ghomeshi immediately imprisoned, and those who believe men are entitled to prey on anyone who fails to publicly renounce them, is so tainted by gender stereotypes and ignorance of victim pathology that it’s no wonder a much- needed social discussion remains elusive.
Here’s a start: Criminal law reasonably requires that the Crown prove beyond a reasonable doubt that someone is guilty before depriving them of their liberty. At the same time, years of research reasonably show that victims of complex relational violence may react differently than victims of straightforward property crime. What if a merchant keeps his shop open after a violent robbery, or a real estate agent keeps show- ing houses despite an attack. Did those crimes never occur, either?
So, casting the complainants in this He Said- She Didn’t Say trial as a treacherous cabal of rebuffed lovers who conspired a la the bitter wives and girlfriends in The Other Woman and The First Wives Club does nothing to enhance our modern justice. And it stands in sharp, sexist contrast to the group of NHL players who for years “conspired” to see their abuser, Graham James, behind bars. No one held their advocacy against them. Men co- operate; women collude.
In fact, as Judge Horkin admitted himself, the women may very well be telling the truth. “My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened.”
If we really are committed to a fair and just society, shouldn’t we have a better way to find out?
THE EVIDENCE OF EACH COMPLAINANT SUFFERED NOT JUST FROM INCONSISTENCIES AND QUESTIONABLE BEHAVIOUR, BUT WAS TAINTED BY OUTRIGHT DECEPTION. — ONTARIO JUSTICE WILLIAM HORKINS, IN FINDING JIAN GHOMESHI NOT GUILTY ON ALL CHARGES WE ALL HAVE OUR SECRET LIFE. BUT THAT IS MY PRIVATE LIFE.
Imagine, for a moment, the verdict in the Jian Ghomeshi trial had been as many had hoped: that the former CBC star was found guilty of all the charges against him, four counts of sexual assault and one count of overcoming resistance by choking.
To get there, Ontario Court Justice William Horkins would have had to overlook no fewer than a dozen major, glaring inconsistencies in testimony — along with a handful of what he assessed to be deliberate lies — from the women on which the entire case was based. There was no physical evidence: no pictures taken after the alleged assaults, no hospital records, no DNA. Thus, a conviction would have to rely on sworn testimony from credible witnesses, based on recollections of events from more than a decade ago — stories that had been told and re-told in the media several times over, before the Crown would even get a chance to deliver its opening statements. It’s a wonder, actually, that this case ever made it to trial.
To find Ghomeshi guilty of sexually assaulting the first witness, Horkins would have had to ignore the fact that she situated the alleged assault in a car that Ghomeshi didn’t own at the time of the alleged incident. He would have had to accept the notion that she forgot that she sent Ghomeshi a picture of herself in a bikini after allegedly being assaulted again at his home — which is theoretically possible — even though she told police no fewer than six times that she had no further contact with him. And he would have had to overlook the fact that her version of events “shifted significantly” from one media interview to the next.
To find Ghomeshi guilty of overcoming resistance by choking in his interaction with Lucy DeCoutere — a charge t hat was barely touched upon by the Crown during the trial — Horkins would have had to determine, primarily by inference, that not only did Ghomeshi indeed choke DeCoutere, but he did so with the intention of rendering her “insensible, unconscious or incapable of resistance.” He would have to look past the fact that DeCoutere left out of her 19 media interviews that she cuddled with Ghomeshi in a park after the alleged sexual assault, and that she didn’t mention it to police because she thought she was supposed to be “brief ” in her statement. He would have also had to shelve any questions about why DeCoutere sent Ghomeshi an email in which she said, “You kicked my ass last night and that makes me want to f--k your brains out.”
Likewise, to find Ghomeshi guilty of the last sexual assault charge, Horkins would have had to find the third witness credible despite the fact that she withheld information having willingly performed a sex act on Ghomeshi until just before she was to take the stand. He would have had to shrug off the fact she and DeCoutere exchanged about 5,000 messages in 2014-15, in which they talked about “sink(ing) the pr--k” and “put(ting) this predator where he belongs,” and accept her version of events as she told in it court, despite admitting on the stand that she lied to police.
But of course, he wouldn’t do that, as no law- abiding judge ever would: a witness can’t lie about W, X, Y, and yet be deemed credible when it comes to his or her statement on point Z. “The harsh reality is that once a witness is shown to be deceptive and inconsistent, the court cannot have faith in the complainants,” Horkins said.
That doesn’t mean that Ghomeshi has been vindicated (indeed, he’s set to appear in court again in June over a separate sexual assault allegation), nor does it mean that these events never happened. Rather, his acquittal on Thursday simply means that there was not sufficient evidence to establish his guilt beyond a reasonable doubt. While protesters outside the courtroom were predictably upset by the outcome, any other decision would have
CONVICTING GHOMESHI WOULD HAVE MEANT OVERLOOKING A STAGGERING NUMBER OF LIES OR DISCREPANCIES.
actually been a much bigger scandal. Indeed, to convict a man on charges based entirely on testimony of untrustworthy witnesses would have been an egregious affront to fundamental principles of justice — one which, thankfully, we didn’t see, despite pressure both inside and outside the courtroom.
That said, it is possible both to believe these women when they say that something happened and to believe that the judge came to the correct decision. There’s no question that, from the perspective of victims of sexual assault, the system needs work: evidenced primarily by the fact that the witnesses in the Ghomeshi case seemed thoroughly unprepared for what they would face in cross- examination. But nevertheless, the law was served faithfully by Horkins’ decision, even if wasn’t the one many observers hoped to see.