On Thursday, Jian Ghomeshi was found not guilty on four counts of sexual assault and one of overcoming resistance by choking. For many, the verdict came as no surprise.
You can read the full decision here.
Unfortunately, the message does not always get across. For those not already well-versed in the multiple barriers faced by complainants in sexual assault trials, feminists who decry the intense scrutiny of complainant behaviour, brutalizing tactics of defence lawyers, and rape myths that continue to pervade decisions like this one just under the surface, are easily dismissed as raging social media mobsters for whom “Ghomeshi is damned well guilty, and this reasonable doubt stuff is just slippery legalese.”
The line between standing up for survivors and reversing the presumption of innocence can seem perilously thin. We should be wary of the temptation to gloss over the question of evidence too easily, or take a judge’s words out of context, even in the heat of justified anger. The verdict in this particular case was not wrong; to convict on the evidence as it stood probably would have been.
But in the words of Amanda Dale: “The institutional shadow cast by the false stereotypes about claimants is in no way equivalent in influence to the raw call to believe sexual assault survivors coming from outside the courtroom.”
That the evidence didn’t stand up in court does not mean that the many brave women who came forward were collectively lying about their experiences of violence with Ghomeshi. Justice Horkins himself recognized in his decision (problematic as it was, more on that below), that a finding of not guilty does not mean that the events described did not happen – a reality all too common in cases of sexual assault. Here lies the problem. Here is the good reason we have to be angry: the total disconnect between the law and women’s actual lives.
I attended the final day of the Ghomeshi trial as well as another sexual assault trial taking place around the same time at Old City Hall. Around that time, I had two particularly heated exchanges with defence lawyers, one right inside the overflow courtroom where we heard the closing submissions in the Ghomeshi trial. For those lawyers, and others quoted in the media, this case is about credibility and the presumption of innocence, full stop.
I get that. But what about the reality of sexual violence in thousands of women’s lives? What about the vast majority of cases that never make it to court because women don’t feel they have the financial, emotional, social or legal resources to come forward? What about the financial, emotional and social consequences for those who do go stick it out through a trial in which every detail of their personal lives is publicly scrutinized, only for a judge to find that their stories don’t measure up?
When I raised these issues with the lawyers I spoke to, they basically just shrugged.
While the verdict may have been right, as Professor Brenda Cossman and many others have pointed out, Justice Horkins’ reasons perpetuate skeptical and distrusting attitudes towards sexual assault complainants, giving them yet one more reason not to bother coming forward in the first place.
On the one hand, this judge, like the other I observed in Mandy Gray’s sexual assault trial, clearly recognized that sexual stereotyping could get them into trouble. They would need to look no further than the fate of Judge Camp following his rape-myth riddled 2014 decision in R v Wagar.
I suppose that is something. The problem is that the analysis stops there. As Professor Julie MacFarlane notes, once lip service is paid to the hard-learned dangers of rape myths, the myths keep right on doing their work under a thinly veiled cover.
If Justice Horkins claims that “[c]ourts must guard against applying false stereotypes concerning the expected conduct of complainants”, then why does he repeatedly rebuke the complainants for not recognizing the relevance of this conduct? And why is he so confident in concluding that the complainants’ behaviour is “odd” and “out of harmony” with the alleged assault.
If it is “entirely natural” for survivors to become involved in advocacy work, then why does he feel comfortable speculating that such work might give a witness the motive to lie.
Perhaps most troubling of all is the condescending suggestion, after meticulously listing all of the shortcomings of the complainants’ testimony, that being a witness in a criminal trial is “really quite simple: tell the truth, the whole truth and nothing but the truth.” Unfortunately, for many women who experience sexual violence, the truth isn’t actually that simple.
The troubling thing about this case is not the presumption of innocence absent a high standard of proof. It is the failure to see anything beyond it.