The trouble with ‘post-incident contact’
Scrutiny on complainants’ behaviour in sexual assault cases is worrisome, legal experts say
Many Canadians were introduced to the concept of “post-incident contact” during the recent high-profile trial of Jian Ghomeshi, the former CBC star. In acquitting Ghomeshi of four counts of sexual assault and one of choking, Judge William Horkins explored the later actions of the three women who accused Ghomeshi and found them discordant with what he expected of an assault victim — a controversial comment that inflamed debate over an already difficult subject.
“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,” Horkins said in his ruling. He was also bothered that the women did not disclose these flirtatious after-the-incident behaviours when they first gave statements to the police and the Crown.
One woman sent a bikini photo; another cuddled with Ghomeshi at a park and sent him a love letter; the third gave Ghomeshi a “hand job” at a subsequent gettogether after the alleged assault. As troubled as Horkins was by this, some experts in the field of sexual assault are troubled by the judge’s comments, which they consider to be out of step with the times. “Women who have been assaulted by people they know act in ways that are often counterintuitive,” said University of Ottawa law professor Elizabeth Sheehy, who teaches sexual assault law.
Sheehy said it is important for judges to understand that there is no “script.”
Recently, the Star has looked into new allegations against Ghomeshi, made by a woman in the Toronto music business whose reaction was very different. The woman alleges that in 2013, when she was in her early 20s, Ghomeshi jumped on her, choked and forcibly kissed her, then put one hand between her legs. She managed to wriggle free and left.
The woman provided the Star with a chain of text messages with Ghomeshi that indicate he pursued her in the following weeks, but she rebuffed him and eventually he gave up.
“Not even texting me back today? That just makes s--t awkward,” Ghomeshi wrote in a text to the woman the day after the incident.
Neither Ghomeshi nor his lawyer, Marie Henein, has responded to the Star’s questions about this new set of allegations. The woman has not made a complaint to the police.
This woman chose to ignore Ghomeshi, but legal experts in the field of sexual assault say it is not unusual for someone in a social setting to remain friendly with a person who hurt them.
“At first, there is often a sense of confusion, a sense of denial,” said Toronto criminal lawyer David Butt. “It is not unusual for the relationship to continue.
“We have to be very careful about constructing templates and imposing them.”
What makes this situation different from assault by a stranger, Butt said, is that the incident occurs in the context of a social relationship. Some people may immediately break off ties, but others may seek to continue and possibly “normalize” the relationship, hoping that it will not happen again.
Experts say this is well understood when it comes to domestic violence. In that case, the victim and accused may share a residence, have children and financial ties. In the case of Ghomeshi and the three women, it was a dating relationship. Legal experts say the courts are struggling to understand why a person in that situation would be nice to an alleged abuser.
University of Windsor law professor Julie Macfarlane said, “We do not seem to have judges who really understand the dynamics of these situations.”
Macfarlane said there is immediate confusion for victims after these incidents: “Here you have someone who until a few minutes ago you really liked, and they have done something to you that you are not comfortable with. It is perfectly normal to later try and reach out and figure out if this was an aberration. The woman may ask, did I make this happen? Is this my fault?”
She said a person’s charm, or perhaps a desire to offer someone a second chance, could draw the woman back to her attacker.
In the Ghomeshi case, his lawyer, Marie Henein, made much of the fact that post-incident contact by the three women was not disclosed when they first spoke to police and the Crown. Henein brought out this historical information through a raft of emails kept by her client.
In the case of complainant Lucy DeCoutere, a photograph was shown in court of Ghomeshi and DeCoutere cuddling in the park later in the weekend when he allegedly attacked her in his home, strik- ing and choking her. DeCoutere also was revealed to have sent Ghomeshi a handwritten love letter signing off with the words “I love your hands.” Why withhold such information? Horkins said he could understand if DeCoutere had withheld information because she feared “that to some audiences this post-event socializing would reflect badly on her claims that this man had in fact assaulted her.” Horkins’ quarrel with DeCoutere was that she offered a different reason for hiding the information, telling court she planned all along to reveal the socializing at trial.
“I suspect the truth is she simply thought that she might get away with not mentioning it,” Horkins said.
Another sexual assault charge against Ghomeshi was dropped by Crown attorney Michael Callaghan before trial. The Star has found the charge was dropped after the complainant provided police with a short chain of emails that showed she exchanged friendly words after an alleged incident. Callaghan told court he had no reasonable prospect of conviction.
The alleged incident in that case took place in August 2002 at the Owen Sound Summerfolk music festival, where Ghomeshi was singing.
The complainant, whose name remains protected by a publication ban, has told the Star that Ghomeshi picked her out of the crowd and invited her to meet him at his hotel room so they could go out for dinner. Once there, she said he kissed her and repeatedly squeezed her neck, staring at it “intently.” She said he slapped her hard when she tried to leave. “Then he wasn’t laughing and shoved his hands in my mouth and checked my back teeth and gums like a dentist. That’s when I pushed him off and left,” she said.
When first interviewed by the Star in 2014, the woman provided a series of friendly emails she had exchanged with Ghomeshi. They show that months later she did see him again, on one occasion, when he was performing at a Toronto event. She said they did talk and kiss good night. In a recent interview, the woman said she decided to give him another chance, thinking that perhaps his aggressive behaviour had been an aberration. They did not see each other again after the Toronto event.
The woman said she was told by the Crown: “It is not that we don’t believe you; it’s that we don’t think this is a case we can win.” The woman said that the Crown and police were worried because she was “extremely friendly” with Ghomeshi in the emails. She said there was also a concern that she did not “confront him about what he did.”
The woman said she chose to disclose everything to police when she was first interviewed. “I was upfront about everything,” she said.
Law professor Macfarlane said it is often the case that a person will not bring forward information out of a fear “they will not be believed.”
In sexual assault cases, unlike most other criminal cases, it is the post-incident contact of the alleged victim that is at issue. Lawyers interviewed by the Star said that in the case of a murder, for example, it is the pre- and post-incident behaviour of the accused that takes prominence. Not so in the case of sexual assault, and particularly not when, as in Ghomeshi’s trial, the accused does not testify.
Veteran trial lawyer John Rosen, in an interview, said heavy scrutiny is the norm in a typical criminal case.
“Everybody’s conduct after an event, both complainant and accused, is a material piece of evidence,” said Rosen.
In the Crown vs. Ghomeshi, none of his subsequent actions were scrutinized and no additional witnesses were called.
Ottawa law professor Sheehy said this focus on the alleged victim’s post-incident conduct makes it very difficult to successfully prosecute a sexual assault.
“I think this gives a profound message that unless you govern all of your behaviour from the moment of the assault, say nothing, record nothing — unless you perform absolutely perfectly in the days, weeks and months after the incident, then you run the risk of not being believed,” Sheehy said.
Ghomeshi remains on bail pending a separate trial in June on one remaining charge of sexual assault. Kevin Donovan can be reached at 416-312-3503 or kdonovan@thestar.ca.