Parts of Ghomeshi ruling give U of S law professor pause
After a high profile criminal trial, former CBC radio host Jian Ghomeshi was found not guilty on Thursday of charges of sexual assault and choking. In an email interview with the Saskatoon Star-Phoenix, Michael Plaxton, associate professor of law at the University of Saskatchewan and author of a recent book on the issue of implied consent and sexual assault, weighed in on the verdict.
Q Did you expect Ghomeshi to be found not guilty on all charges?
A I would have been surprised to see the trial judge convict Ghomeshi on any of the charges, given the grave credibility problems of the three complainants. On the choking charge, it is arguable that there was no evidence at all on an essential element.
Q What stood out to you about the judge’s decision?
A In light of the devastatingly effective cross-examination conducted by Marie Henein, most of the trial judge’s reasoning is unremarkable.
Quite simply, the complainants’ lack of honesty and candour gave rise to a “reasonable doubt” as to whether the alleged incidents took place. But there are a couple of passages that give me pause. It was unnecessary, for example, for the trial judge to observe “the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful.”
I have no doubt that the trial judge was merely pointing out that there is, in law, no presumption that sexual assault complainants are credible or reliable. But this comment arguably comes close to making a factual claim about the trustworthiness of sexual assault complainants.
The passage immediately following it is also troubling. The trial judge stated: “Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him.”
This seems to suggest that the trial judge was measuring the complainants’ post-incident behaviour against that of the stereotypical sexual assault victim — which would be deeply concerning, given that different victims of sexual assault behave, well, differently. We do not want trial judges to be quick to reject the testimony of sexual assault complainants simply because they do not conform to “common sense” ideas of how victims “ought” to behave. In the end, I don’t think this made much (if any) difference to the outcome.
Q Aside from the publicity the trial received, was it typical of sexual assault cases, or an outlier?
A I’m inclined to think that the nature and extent of the credibility problems was rather unusual. It is extraordinary to have a witness effectively forced, under cross-examination, to admit on the stand that she lied.
Q The trial sparked a lot of debate around how sexual assault trials work, specifically the tactic of attacking accusers’ credibility. Do you think the public is now more informed? A I have no doubt that many victims of sexual assault would have reasoned as these complainants did — i.e., that they should tailor their evidence in such a way that
they would conform to stereotypes about what victims of this offence do and “look like.” The Ghomeshi trial illustrates the folly of such an approach. Had the complainants been more candid and forthright, the defence would have had substantially less ammunition to use against them.