For all our sakes, let’s continue to rage against the system.
There was a battle of the sexes outside Old City Hall yesterday, in the miserable freezing slush.
Women held up signs and chanted “We believe survivors,” while a handful of men mocked them and sniped: “We believe the truth.”
Inside the courtroom, the other battle — the personal one — ended badly for everyone. Disgraced CBC host Jian Ghomeshi is not guilty, but does anyone believe he’s not a creep?
The three female complainants had their integrity and self-confidence badly wounded, if not destroyed. Complainant No. 2, actress Lucy DeCoutere, smiled bravely before the clutch of cameras and microphones that trailed her out of the courthouse and down the street, but she told Chatelaine she felt 100-per-cent shamed and “totally cracked in half.”
Does anyone think she was not assaulted?
So here we are, in the slush, wondering why anyone bothered at all and whether, as a society, we really think sexual assault is a problem that requires addressing. Or not.
“It’s the same bulls--- we were talking about in 1982,” said Anna Willats, a professor with George Brown College’s assaulted women and children counsellor/advocacy program, who was protesting outside with some of her students. “Nobody can be a perfect witness.”
True, these three women were far from perfect. They forgot, didn’t mention to police or wilfully omitted those emails, kisses, hand jobs, letters and sexy photographs they’d given Ghomeshi later. They changed small details — it was a slap, then a choke; yes, he slammed my head against the window, no it was just resting there.
But watching up close, how many of us didn’t wonder about the frailty of our own memories and the tricks we use to hide our shame even from ourselves?
We all felt the piercing glare of Ghomeshi’s defence lawyer, Marie Henein, and we watched him sit behind that table, silently.
Why did he not have to answer even some softball questions, like what made him think they’d consented to being punched or strangled? (I’d like him to answer the more hardball: “Why did you store all those emails for a dozen years from random women you’d dated briefly?”)
Ghomeshi might have been on trial, but it sure seemed like those three women were being tried.
DeCoutere also said in that interview that, “after I testified, I felt like I had to go up to every person in the world and apologize for ruining the case.” She shouldn’t feel that way. She and her two fellow complainants brought us all into the courtroom to witness, up close, the terrifying process of a sex assault court case, one painful tweet at a time.
Most of us now see what rape crisis centre workers have been saying for years: Cross-examination, particularly in these cases, often causes more damage to victims than the actual assault. There are some 460,000 sexual assaults in Canada every year, according to our provincial government’s It’s Never Okay plan, and only 7 per cent are reported to police.
Now we understand — in part, at least — why.
Of those 460,000 sexual assaults, 0.3 per cent lead to convictions.
Few victims are perfect enough for this system. The first complainant told Chatelaine journalist Sarah Boesveld she wishes she’d been better prepared for the entire process. She’s launched a website, www.comingforward.ca, to help inform other victims about what they’re in for. If she could do it again, she’d consult a lawyer before proceeding to the police station. She wished she’d understood “my memory, above all, would be on trial.” The Ontario government is launching a pilot project this spring to do just this — offering victims of sexual assault up to four hours of legal advice before they go to trial.
There’s one approach — we could all be taught to become perfect victims, with our scattered memories arranged in an inscrutable row, and our shame pinned openly to our chests.
Another approach came to me, watching the chanting protesters and grumbling anti-protesters battle for noise in the miserable slush before Old City Hall: If we know sexual assault victims are almost never perfect enough for the exacting nature of “beyond a reasonable doubt” when there is no evidence besides their memory, then maybe what needs revamping is the system, not us.
“If any public service entity had a failure rate of 99.7 per cent, all the architects would be gone and it would be redesigned from the ground up,” said David Butt, a criminal lawyer who has represented hundreds of sexual assault victims (mostly in defending against the release of their therapeutic records, before the case goes to trial) over the past 17 years.
Butt suggests offering victims alternative forms of justice rather than the “one size fits all” criminal charge of sexual assault, which carries a heavy penalty, so justly requires a heavy burden of proof. In a civil case, for instance, the accused would not face a criminal record, let alone time in jail, but would be required to testify and the presiding judge’s measuring stick would be a “balance of probabilities.”
It’s a proposal that certainly warrants investigation.
I was glad for the battle outside the courthouse Thursday, so we weren’t just left with the all-round defeat from inside the courtroom.
For all of our sakes, I hope it continues to rage. Catherine Porter’s column usually appears on Friday. She can be reached at cporter@thestar.ca