Yes means yes and ask again anyway
As awkward a subject as it may be, I want to discuss the Jian Ghomeshi trial. Since I’m about as subtle as a cinder block thrown through a plate glass window, I guess I’ll start with something that’s been particularly contentious: Marie Henein’s impassioned defence of Mr. Ghomeshi, and her often brutal approach to examining the complainants. I know a number of people were appalled by her methods, and it’s hard—if not damned near impossible—to blame them. A lot of her questions seemed unnecessarily harsh considering the nature of the alleged crimes in question, and a lawyer as experienced as she is could be much more sympathetic to the frailties of human memory. Long before I even considered getting into law, my mother (Osgoode Class of 2003) explained to me at length why eyewitness testimony isn’t as reliable as the layman generally assumes. Between that, the passage of time, prosecutorial laziness and/or incompetence, and Henein’s tenacity, it’s not surprising that the complainants struggled so mightily on the stand.
Unfortunately, Marie Henein was mostly just doing her job. Yes, she was a bit too aggressive, and sweet merciless Poseidon, YES, if she grilled an alleged sexual assault victim like that outside of a courtroom, scorning her would have been completely appropriate. That said, criminal defence lawyers have a professional obligation to find holes in a complainant’s testimony, and—though she could have dialled it back—that’s what she did. To me, the most tasteless thing she did was invoke Justice L’Heureux-Dubé: she did so in reference to the importance of truth in judicial proceedings (a fair enough point), but she could have invoked someone other than a Canadian feminist icon who was publicly attacked by Justice McClung for being rightly sympathetic to a sexual assault victim. That was the wrong person to invoke, given the context. Still, she fought for her client like a badger on meth, and (aside from the meth bit) that’s kind of what you’re supposed to do. I’m not going to sing her praises, but I’m also not going to be the dachshund chasing her into her burrow, barking and gnashing my teeth until someone digs down and shoots her.
Still, I wouldn’t be surprised if Jian Ghomeshi gets convicted. The prosecution screwed up royally and the complainants flailed on the stand, but the judge might still deliver a guilty verdict. I’ve spoken about how our society (if not every society) struggles to handle sex crimes, and there’s a good chance the women Mr. Ghomeshi is accused of assaulting may not have realized they’d been assaulted until years after the events in question. On the surface, it may seem nonsensical that a woman would continue a relationship with someone who slapped and choked her, but sadly, it’s not uncommon. More importantly—and damning to the defence’s case—it would have no bearing on whether or not the complainants were assaulted. If Mr. Ghomeshi choked a woman without her consent and she presses charges against him, his guilt isn’t negated if they cuddled on a park bench the next day. It’s much too likely that the judge will find him not guilty on faulty premises, but it’s far from a given, and let’s offer the benefit of the doubt until a verdict is delivered. In the meantime (if not for some time after the conclusion of this ugly affair) blame the prosecution for assuming this case was a slam dunk.
Regardless of the trial’s outcome, there are a couple of things we can take away from this. First and foremost, we have to accept and acknowledge that sexual assault victims are almost never going to immediately press charges. Lucy DeCoutere being one of the complainants speaks volumes in that regard. She’s best known for her role in the (awesome) cult TV show Trailer Park Boys; she’s less known as a Captain and Training Development Officer in the Royal Canadian Air Force. In other words, she’s quite the badass. If it was a decade before someone like her pressed charges, one can hardly blame the other complainants for the delay. There are a number of reasons why statutory limitations are functionally inapplicable when it comes to pressing charges or filing claims related to sexual assault or harassment. The fact that an RCAF Captain took so long to press charges reflects why we make such exceptions.
Second, we really have to educate people on the nuances of informed consent, especially in an age where kink is so common it’s almost weird not to be into something unorthodox. Everyone’s aware that “no means no,” but a better way to summarize informed consent in three words is “yes means yes.” Even then, as much as that adheres to the legal necessity for constantly affirmed consent, fetishes can be surprisingly complex. Some people are genuinely into being choked, but simply saying “don’t do it until he/she/however they self-identify tells you to” simply doesn’t cut it, considering you can’t always utter a safe word in such a situation. I’m not suggesting that willing participants in hardcore BDSM should have a lawyer draft a contract before doing their thing (talk about a mood-killer), but at least work out the details before you start tightening that belt. If you have to firmly establish informed consent with vanilla sex, you especially have to do it when your kinks have an element of danger. At the very least, it seems that Jian Ghomeshi failed at the second one, and look where that landed him. Come to think of it, maybe signing a contract isn’t such a bad idea…
Anyway, my overarching point is that everyone can benefit from an advanced understanding of sexual consent. The Ghomeshi trial at least partly reflects what can happen when boundaries aren’t clearly established, but—more importantly—it also shows that even people who didn’t consent to an activity might spend years convincing themselves that they did. In a world where drunken hook-ups are common and being unable to say a polysyllabic safe word through a ball gag is a potential albeit unusual issue, reducing consent to something that can be summarized in a catch phrase is actually dangerous. Assuming Mr. Ghomeshi did assault the complainants, his guilt will not be negated by his failure to establish consent; but whatever the outcome, I hope that the judgment does something to crystallize rules of consent where kinks are concerned, and if it doesn’t, I hope those few of us who inevitably become judges keep such things in mind. The real world is a bizarre, often disturbing place, and we’re the poor fools stuck trying to bring sense and justice to it. The least we can do is stay informed, if not fiercely vigilant.
As for Marie Henein, a day will come when we will all have to deal with an objectionable client. I don’t expect anyone to agree with her methodology, but at least try to be sympathetic. Most of us will have to walk a mile in her shoes. I imagine it’s like trying to walk on concrete in hockey skates two sizes too small. I’d be mean too.