Ordeal of Ghomeshi’s accusers shouldn’t chill harassment cases
Complainants given much more protection than in criminal cases, writes Howard Levitt.
Jian Ghomeshi’s criminal trial playing out in a Toronto courtroom could have a chilling effect on women considering filing workplace sexual harassment complaints. But it shouldn’t. There is no connection between the proceedings of a criminal case and what occurs in the employment law realm. Here’s why:
THE PSYCHOLOGICAL REACTION
While the three accusers have been roundly pilloried, in both social and conventional media, as liars, jilted lovers seeking revenge or flakes with limited recollection, many women take a different view.
While we are familiar with the abused spouses who remain with their partners, women are also familiar with a lesser-known phenomenon — coping by excusing what happened and carrying on as if it never occurred. Many women are concerned they won’t be believed and might even blame themselves.
Women who are sexually harassed often engage in seemingly inconsistent behaviours because they are trying to normalize, minimize, and restore their personal dignity and control. It is not uncommon for victims of sexual assault to delay disclosure, continue in a relationship with the offender and even engage in sexual activity with the offender after the assault.
Professionals in the criminal justice system, and we in employment law, will tell you such behaviour is far from atypical. The public, however, is less enlightened. Perceptions about what makes for a “credible” complaint are still laden with stereotypical notions about how women should behave in the aftermath of such experiences. Women who are victims of sexual assault are all well aware of this, which is why barely five per cent ever complain to police. It is likely also why the women who do complain tend to sanitize their accounts.
There is good reason for this apprehension. A recent Global TV/Ipsos Reid poll found that more than 75 per cent of women who reported sexual assault to police ultimately felt devastated or abandoned. Less than a quarter were satisfied with the response.
Workplace sexual harassment complainants have a very different experience. A microscopic number ever provide evidence in court and most Canadian employers — particularly since Ghomeshi’s firing — treat complainants with care and respect, with the harasser often removed from the workplace.
PREPARATION FOR TRIAL
By the time an employment law case reaches trial, there are no surprises. The accuser will have spent hundreds of hours in preparation, much of it with counsel, and had the advantage of full disclosure of emails and other documentary production. And there will have been full disclosure of all potential allegations at an examination for discovery and at mediation and pre-trial where the issues are further fleshed out.
Ghomeshi’s accusers, on the other hand, were like deer in the headlights, stunned by questions one would assume they would be prepared for. All the Crown had to do was to remind them of their statements to the police and the media.
The trial so far suggests little time spent with Crown counsel — a Crown who commands considerable respect among the criminal bar. By contrast, Ghomeshi has likely spent hundreds of hours with defence counsel Marie Henein and other members of his defence team, let alone the private investigators it likely employed.
That is the nature of the system — the Crown acts not for the accusers, but for the state, whose only interest is in a fair result. The job of defence counsel is to win. The criminal contest is between the neutral and the partisan, quite different from the adversarial process of employment law, where both sides are partisan.
LONG- TERM MEMORY
The limitation period in all employment law cases is two years. By contrast, the incidents that led to Ghomeshi’s criminal case (all unrelated to his dismissal from CBC) occurred some 12 to 14 years ago. Psychologist Dr. Oren Amitay has noted that with recollections that distant, people invariably remember their recollection and portrayal of the event, rather than the event itself. The more often they retell it, the greater the possibility of the story being changed, exacerbated by the reaction of the audience. It is a function of long-term memory that people fill in the gaps with what they subsequently learn.
The issues in this criminal case are simple. Were the accusers assaulted? If so, did they consent? On those two narrow issues, their answers have been consistent. Henein has steered away from cross-examination on those points. If the Crown had called expert witnesses on the issues of long-term memory and the psychological response to sexual assault, the accusers’ evidence might have appeared more credible.
None of this should dissuade women from reporting sexual harassment at work. The lack of protection for accusers in criminal law has no employmentlaw concomitant. The common extrapolation from the criminal to the employment law realm is a false one.