Why watching the Ghomeshi trial might actually embolden more victims to come forward

I’d wager that one of the few things scarier than testifying in a sexual assault case is testifying in a sexual assault case and having no idea what to expect. This case was probably one of the most closely watched sexual assault cases ever in Canada, with reporters in the courtroom live-tweeting testimony nearly line by line. For some victims of sexual assault, that understanding of the process could prove remarkably reassuring. There’s no question that some women will look at the case and think they can’t put themselves through that sort of interrogation, which is understandable, but others might reflect on what they’ve seen and say to themselves: OK, now I know I can do this.

There was a moment during t he crossexamination of Lucy DeCoutere, the sole named complainant in the case against former CBC star Jian Ghomeshi, where the famous, dazzling, revered television actress and Royal Canadian Air Force captain became just like any other regular, anonymous woman caught in the complexities of the Canadian court system. In that moment, defence attorney Marie Henein was grilling DeCoutere about the details she had left out in her earlier interviews with the Crown and police, including how she kissed Ghomeshi goodnight and cuddled with him in a park the day after he had allegedly choked and slapped her. DeCoutere had brought that new information to the Crown just a day earlier, ahead of her testimony, despite numerous previous interactions with the Crown and police. Henein wanted to find out why.

“You have a master’s in education,” Henein put to DeCoutere. “You’re pretty smart.” “Yes,” DeCoutere replied. And yet, Henein charged, “Literally before you come into this court, you decide you have more information to give.”

DeCoutere attempted, rather futilely, to justify the delay.

“Is it possible, Ms. DeCoutere,” Henein continued a few minutes later, “that you just seem to forget the stuff that just shows you’ve been lying?”

DeCoutere replied that she was under the impression that “brevity” and “succinctness” were critical to her initial police interviews, and that she thought the Crown would follow up with further investigation. Her knowledge of the workings of the legal system, she said, was limited to just what she had seen on American TV.

Observers can decide for themselves whether DeCoutere’s omissions were a deliberate attempt obfuscate evidence, as the defence’s line of questioning seemed to suggest, or whether she legitimately believed that certain details of her story weren’t worth recounting to police. Whatever the explanation, Henein won the round: here was DeCoutere, an educated, successful, well- connected woman — one who had commissioned her own lawyer, no less — being absolutely skewered over her own flawed retelling of her story. In that moment, Lucy DeCoutere wasn’t the celebrated actress of Trailer Park Boys fame, but just another witness who would leave the court with her credibility stuck to the bottom of the defence attorney’s shoe.

It was a problem that all three complainants who took the stand against Ghomeshi would face: one by one, Henein would pluck out the loose ends in each other their stories, and hang them by it. It wasn’t pretty, and by the time final arguments were heard this past Thursday, many observers were just thankful to see the defence holster their weapons. Jus- tice William Horkins would reserve judgment until March 24, but one thing had nevertheless been decided already among those who had followed the case, and that is if women were reluctant to come forward about sexual abuse before, they’d be infinitely more so after watching the defence pick apart the witnesses in this trial. Indeed, it was almost as if everyone watching from the gallery — real and virtual — said in unison: “It’s no wonder more women don’t come forward.”

Yet at the same time, precisely the opposite may be true: that the lessons learned from watching the Ghomeshi trial might embolden future victims to come forward. This case was probably one of the most closely watched sexual assault cases ever in Canada, with reporters in the courtroom live-tweeting testimony nearly line by line. Whereas before, interested parties would’ve had to wait for the end-of-day summary news report, which would have relied on the journalist’s interpretation of events, now people can follow along with the testimony as it happens and see how the defence builds an argument, challenges narratives and chips away at witness credibility. For some victims of sexual assault, that understanding of the process could prove remarkably reassuring. Indeed, I’d wager that one of the few things scarier than testifying in a sexual assault case is testifying in a sexual assault case and having no idea what to expect. Or walking into the courtroom equipped only with what you’ve seen on American TV.

Unfortunately, the reassurance some women might get from watching the Ghomeshi trial comes at the expense of its three witnesses, who likely learned a little too late about the importance of telling police absolutely everything — even about the seemingly unimportant details, and about how inconsistencies can arise when you tell your story over and over to multiple media outlets, and about why you probably shouldn’t communicate with other complainants ahead of trial. ( Henein told the court Monday that Lucy DeCoutere and the third witness had shared some 5,000 messages between the time the allegations were made public and September 2015, though Henein stopped short of actually calling their correspondence “collusion.”)

These complainants likely didn’t know all that, and for that they certainly shouldn’t be blamed. What’s more, this isn’t about being the “perfect” sexual assault victim, but rather, about knowing what to expect during crossexamination and what one can do to mitigate the defence’s power. Many women’s advocates will still say that the courts and our processes should be what changes — not women’s behaviour — but the burden of proof must always rest on the state, and the accused will always try to mount a vigorous defence.

The Ghomeshi trial offered the benefit of illustrating how, line by line, an attorney endeavours to do that. There’s no question that some women will look at the case and think they can’t put themselves though that sort of interrogation, which is understandable, but others might reflect on what they’ve seen and say to themselves: OK, now I know, I can do this.

THE BURDEN OF PROOF MUST ALWAYS REST ON THE STATE, AND THE ACCUSED WILL ALWAYS TRY TO MOUNT A VIGOROUS DEFENCE. — ROBYN URBACK