Tamera Burnett is a student in Osgoode Hall Law School’s PhD program, where she is working on how to approach sentencing in sexual assault trials through an intersectional feminist lens. She’s been following the Jian Ghomeshi sexual assault trial and she’s generously offered us her thoughts on the topic.
Some Overarching Comments on the Ghomeshi Trial from a Feminist Perspective
For the past several weeks, mainstream and social media has been flooded with articles and conversation about the Ghomeshi sexual assault trial. For feminists, this trial has represented an opportunity to talk about the many discriminatory issues plaguing this area of law. On the other hand, the trial has also shown us just how much work remains to be done on this issue, both in the legal system and society at large.
In 2014, Jian Ghomeshi, formerly a household name for his musical, written, and radio show work, was accused of sexually assaulting 23 different people (mostly women) over a period of many years. Of those accusations, only a handful of charges were brought to court. The most recent trial involves the accusations of three of the victims.
One of the most discussed issues arising from this trial is defence counsel Marie Henein’s use of the “whacking the complainant” strategy. To whack a complainant is to conduct as an aggressive and emotionally trying cross examination as possible in order to destroy the credibility of the complainant. Though some argue that such vigorous questioning is necessary to ensure that the accused receive a fair trial, Amanda Dale, Joanna Birenbaum, and Pamela Cross point out that no defence should perpetuate inequality. Whacking the complainant often relies on discriminatory assumptions about how “proper” victims should act. Because Ghomeshi’s victims didn’t immediately break off all contact with him and go to the police, their claims of sexual assault are seen as untrue. Yet having conflicted feelings and taking time to accept what has happened is something that many sexual assault survivors experience. The focus of a sexual assault trial should be on the actions of the parties during the time period of the assault. To assume that questions about consent are answered by after-the-fact behaviour on the part of the victim disregards the way that Canadian criminal law is structured, and relies on harmful rape myths and stereotypes. As Lucy DeCoutere’s lawyer announced shortly after her client was cross examined:
“This is and remains a trial about Mr. Ghomeshi’s conduct. What Lucy did or how she felt in the aftermath does not change that essential fact…. Violence against women is not about the behaviour of the women; it is not about how they cope with an assault, or the details they commit to memory in the aftermath any more than it is about what they wore or how much they had to drink.”
Such aggressive cross examination also ignores how memory works. Not only do memories fade over time, a very relevant fact when dealing with assaults that took place over a decade ago, but trauma influences how events are committed to memory. That witnesses did not remember what make of car Ghomeshi drove, or whether or not they had hair extensions at the time of their assault is not a sign that their memories were false. Badgering witnesses about these extraneous details doesn’t tell the court anything about the assault in question, and credibility should not be accorded to only those with perfect recollection.
Furthermore, almost all of the attention in this trial was placed on the complainants while Ghomeshi remained silent about his behaviour. No accused can be forced to testify, but this means that Ghomeshi was not quizzed about his memories. His rationalisations were not demanded in a public forum, and his choices not systematically picked apart, despite the reasonable steps requirement of Canadian sexual assault law. Acknowledging this gap in the trial narrative is particularly important given that some of Ghomeshi’s behaviour appears to reflect the attitudes and actions of abusers. According to some victims, Ghomeshi made sure he had written documentation to show that his victims seemed to want to engage in sexual activities with him, and that any communications after sexual or violent contact remained flirtatious and friendly to support this claim. Accusations of inappropriate behaviour, therefore, could be countered with documentation suggesting that victims approved of what happened between them and Ghomeshi, a tactic used by abusers to justify and disguise their problematic behaviour. Additionally, other victims have come forward to state that he groomed them for violence, drawing in his victims with stories of vulnerability, and then emotionally manipulating them to create doubt that Ghomeshi could be at fault for any issues in the relationship. While none of these details were discussed at length in court, they can be seen over and over again in the stories of the victims who have come forward. Ghomeshi was never “whacked” on the stand, but bikini pictures of his victims were submitted as official evidence. Even if these disparities are required by the letter of the law, the spirit of justice is damaged when a trial incorporates so many unfair and irrelevant standards for complainants, while at the same time protects an accused from scrutiny into his behaviour.
Finally, the Ghomeshi trial highlights an important ethical conflict in criminal defence lawyering: when does a vigorous defence for an accused begin to undermine the administration of justice as a whole? Though the accused must be protected from the overwhelming power of the state, the actions of criminal defence lawyers should never directly harm society in order to protect their clients. After all, there is a substantial difference between protecting your clients’ rights and doing whatever possible to ensure that they are acquitted. David Tanovich argues that Canada needs a better standard for ethical defence lawyering in sexual assault trials. He and Elaine Craig state in a recent Globe and Mail article that while “[some] of the brutality of our adversarial system is inevitable[, it] is intolerable and shameful that our profession permits these unavoidable harms to be compounded by conduct that is neither ethically or legally permissible.” Using rape myths and stereotypes to imply that a complainant was not a victim because they didn’t report soon enough, didn’t respond in the right way, weren’t the right type of victim, or any other such discriminatory claim, makes it less likely that people will come forward to report sexual assaults, and undermines the administration of justice by allowing legal decisions to be influenced by untruthful, irrelevant, and misogynistic understandings of sexual assault. Defence lawyers must find a better balance between the needs of their clients and their obligations to the public.
Both Crown and defence made their closing statements in the Ghomeshi trial on February 11, 2016. The judge’s ruling is being held until March 24th when Canada will find out how strongly rape myths and discriminatory beliefs about sexual assault victims still unfairly influence our justice system.