Ghomeshi Acquittal A Watershed Moment for Sexual Predators and Their Apologists
I remember my skepticism when colleagues and acquaintances waxed optimistic about how this trial would be a watershed moment for the criminal justice system’s treatment of sexual assault. I recall thinking that even if Ghomeshi was found guilty, nothing would fundamentally change. I knew that Marie Heinen would whack the complainants. I knew that the judge would do little, if anything, to stop her. And I knew that for every word of support for the survivors, there would be a deluge of misogynistic trolling.
I was right.
Bikinis and Bouquets
Some of the most “damning” evidence should not have been introduced at all. Section 276 of the Criminal Code states that “evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief.” Yet this is precisely what the now infamous emails and bikini picture were used for, whether or not defence counsel admits it or the judge realizes it.
Had the purpose of introducing the emails been to suggest that the complainants were unreliable because they did not remember sending those emails, there would be little objection (though there is a simple explanation if one understands responses to trauma) or even that they were not credible because they previously stated that there was no contact after the assaults. But it wasn’t; Heinen went further—and too far. The text of the emails, and especially the bikini picture, should not have found their way to open court. They were simply not necessary to prove the complainants made inconsistent statements. All that would be needed to challenge reliability or to impeach credibility would be the dates the emails were sent, their sender, and their recipient. Including the “flirtatious” text and bikini picture could only serve one purpose. What other inference could be drawn if not the complainant is a slut, therefore she is less credible and more likely to have consented? How can a trier of fact disabuse her or his mind from the image of a string bikini on a complainant accusing a man of sexual assault? The judge had the power to exclude this evidence even without an objection from the Crown, but he did not.
Post-Assault Conduct as Post-Facto Consent
There is a Talmudic concept known as kal vachomer, which is about inductive reasoning—learning the lax from the strict. The Supreme Court in J.A. stated that there is no such thing as advance consent; consent must be on-going. If there is no such thing as advance consent, then kal vachomer, there is certainly no such thing as post-facto consent. That is, unless your defence counsel is Marie Heinen.
By picking apart every word, every thought, every email, the defence successfully suggested that the complainants’ post-assault conduct was proof positive of their consent to being choked, punched, and bitten. But how can conduct from the future qualify as consent to an act being perpetrated in the present? It cannot.
Moreover, we know enough about trauma and the socialization of women to please and self-blame that we can safely state, as the judge conceded, that post-assault conduct, though “odd” to onlookers, can be a perfectly normal response for someone who has experienced sexual violence.
The Verdict
The decision in the Ghomeshi trial is not the worst decision in a sexual assault trial that I have read, but that says more about sexual assault trials in general than it does the Ghomeshi trial in particular.
Justice Horkins made a point to note that “the expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models” before he did just that. He referenced the complainants’ post-assault conduct at least forty times in the hundred and forty-two paragraph decision. He explained that his decision was based on things like complainants’ inconsistent statements, but the fact that analysis of post-assault conduct based on discredited rape myths figured so prominently in the decision is troubling.
We hold complainants to an impossible standard and set them up for failure. If they recall details too well, they are rehearsed and therefore unreliable. If they do not recall details—even inconsequential details of events that took place over a decade ago—they are unreliable.
Justice Horkins did not just deem the complainants to be unreliable, however, he went to disturbing lengths to call them liars, stating that they “deliberately withheld” relevant information, and that their “questionable behaviour” and “outright deception” “tainted” their accounts. The “questionable behaviour” was seeking support from other survivors before considering pressing charges, and the “outright deception” refers to the fact that complainants left out the fact that their attacks occurred while they were kissing Ghomeshi, even though there was no evidence that this was a deliberate decision. But consensual kissing a defence of consent does not make.
Of course, this focus on post-assault conduct is largely due to Heinen’s subversion of evidentiary rules. Heinen was part of a continuing professional development panel where she told criminal lawyers “to introduce all this otherwise inadmissible evidence” in sexual assault cases, especially in judge-alone trials, like Ghomeshi’s, “and if it’s excluded, well, oh well, the judge has heard it.” She certainly took her own advice.
Un-Civil Discourse
The verdict was disappointing, as have been the posts and comments from some male (and female) law students following the verdict (Note: While I am often disappointed on this score, I also want to acknowledge and thank my male friends and colleagues who stand shoulder to shoulder with those of us working towards justice for survivors and a more ethically sound and legally correct approach to sexual assault). Law students should know better. While most lay people have probably never read Ewanchuck, Seaboyer, Pappajohn,or Osolin, we have. Not everyone has taken the Sexual Offences seminar (which I highly recommend), but we have all encountered analyses of misogyny and other forms of oppression at some point in law school. The idea that lawyers have ethical obligations, which include civility towards adverse witnesses and a commitment to equality, is inculcated even before classes formally begin for 1Ls. The defence of deliberate ignorance is not available to any of us.
It is therefore disappointing when fellow law students engage in the same vile victim-blaming and unabashed misogyny as the ubiquitous internet trolls. Despite the more polished vernacular and sophisticated packaging, their posts are based on the same facile misperceptions of women, sexuality, and gender-based violence.
Responses praising the verdict range from condescending, snarky, and contemptuous to aggressive, unabashedly misogynistic, and hateful. There is a sense of emboldened misogyny brought on by this verdict. I do not need to give these responses another platform; just check the comments section on any Ghomeshi-related article.
It stated even before the verdict, though. The day I attended the trial, I overheard two popped collars from UofT Law behind me in line lamenting the possibility that this trial would make prosecuting sexual assault “too easy.” No worries, bro, looks like you and your frat brothers have nothing to fear.
Systemic Failings
Complainants are put through the ringer from the moment they report their assaults to police. What follows is usually a crude and cold reception by police. Crowns are often just as bad. To cap off the experience, complainants are given the third degree on the stand—where their clothing, lifestyle, and mental health are violently challenged in a bid to discredit them as witnesses. After decades of reform, the law is where it should be, but given the way lawyers and judges ignore or subvert it, one cannot help but to conclude plus ça change, plus la même.
To be sure, the presumption of innocence is a safeguard that must be jealously protected and the standard of reasonable doubt exists to do just that. In sexual assault trials, where credibility is often the only issue, questions of admissibility are particularly challenging and must be answered with the most precise and nuanced reading of the laws of evidence and the Code. Determining whether a “flirtatious” email is admissible because it is proffered to impeach the complainant’s statement denying contact or inadmissible because it is proffered to suggest that the complainant is promiscuous and therefore less credible or more likely to have consented to the act in question is often challenging. Demarcating these lines requires a fine brush, not a roller.
These systemic failings lead to further systemic failings as the attitudes and assumptions rejected by the Code and the Supreme Court are further ingrained into the minds of lawyers and judges. This, in turn, perpetuates and legitimizes society’s skewed perceptions of sexual violence.
Many were hoping that this trial, and the courageous decision by Lucy DeCoutere to waive the publication ban on her identity, would encourage more survivors to come forward and report their sexual assaults to police. Given what the complainants were put through and the berating in the decision, this watershed moment will likely have the opposite effect.
At a demonstration following the verdict, a topless woman who approached the area where the Crown Attorneys were giving a statement outside the courthouse and shouted “Ghomeshi guilty,” was tackled to the ground by two large male police officers. If the complainant whacking and berating by the judge was the metaphor, this was its physical manifestation. Indeed, our system seems quite adept at punishing women for raging against gender-based violence, but cannot bring to justice the men who perpetrate it.
I have found myself explaining to family and non-law school friends how it is that the survivors were found guilty while Ghomeshi was acquitted. It is hard to tell which one of us is more disappointed with my explanation. I cannot help but think that we spend far too much time explaining this verdict and not enough time fixing what made it so.