He was acquitted, but it was victims on trial

Hey there, time traveller!
This article was published 24/03/2016 (3517 days ago), so information in it may no longer be current.

Well, we all knew how this one would end. A court drama with a predictable ending. 

Ontario Court Justice William Horkins found Jian Ghomeshi not guilty of four counts of sexual assault and one count of choking to overcome resistance.

Three complainants — including Trailer Park Boys actress and Royal Canadian Air Force Capt. Lucy DeCoutere, the only one who can be legally named — testified in February that Ghomeshi became violent during various encounters with them between 2002 and 2003.

The first complainant testified that Ghomeshi yanked her hair while they were kissing in his car. She also testified that he forcefully pulled her hair again and punched her in the head while they were kissing at his home during a separate encounter.

DeCoutere testified that Ghomeshi choked her, pushed her against a wall and slapped her in the face three times.

The third complainant testified that she and Ghomeshi were kissing on a park bench when he bit her shoulder and started squeezing her neck.

Ghomeshi did not testify, leaving his defence to the very capable hands of Marie Henein. The eight-day trial was complete with twists and “surprise” evidence. Like the bikini photo Complainant No. 1 sent Ghomeshi after the alleged assault. And DeCoutere’s letters, sent after the alleged assault. The correspondence, some 5,000 messages’ worth, between DeCoutere and Complainant No. 3. 

I say “surprise” evidence, quotes mine, because it’s not all that surprising. Many women stay in contact with the men who have hurt them. Some have to work with them. Some have to live with them. The inconsistencies in the complainants’ testimonies and statements to the police and media aren’t all that shocking either; trauma affects both memory and behaviour. There are myriad reasons why women “keep the peace,” as it were, after an assault.

Yes, Henein is an estimable lawyer, to be sure. But one doesn’t necessarily need to hire a lawyer whose cross examinations have been likened to a machete in order to eviscerate a complainant in a sexual assault case. Deeply entrenched ideas about how victims should be — i.e. they remember all their emails and definitely do not send after-the-fact bikini photos to their alleged abusers — do at least some of the work when it comes to poking holes in a complainant’s credibility, the benchmark for which is already set high for sexual assault victims. To be a credible victim is to be a perfect victim. A victim who went to the police right away, not the media. A victim who broke off all contact.

On Thursday, many people took to Twitter to express disappointment in the verdict and the way the judge read it: “a class in victim-blaming 101” writer Angelina Chapin called it. Others tweeted that like Henein, Horkins was simply doing his job.

We need a better system.

Remember back in October 2014, when the allegations against Ghomeshi were first made public? It felt like a significant moment. It felt as if maybe our culture was shifting and that just maybe, finally, a woman’s word could be taken seriously. Ghomeshi lost his high-profile gig at the CBC. CBC management was taken to task for how it mishandled workplace harassment complaints against Ghomeshi and, according to the inquiry conducted by an independent investigator, condoned the behaviour of its star. That charges were laid and that he would actually see a day in court also felt momentous, if only for the simple fact that outcome so rarely happens.

Coupled with the mounting allegations against Bill Cosby, it felt like, finally, we — as a society — had collectively decided that we were no longer going to protect men in power.

The bravery of the women who came forward encouraged so many others to do the same. In the weeks after the allegations against Ghomeshi went public, former Toronto Star reporter Antonia Zerbisias and Montreal Gazette reporter Sue Montgomery co-created the hashtag #BeenRapedNeverReported. Thousands of women shared the experiences they had long ago tucked away — because they were scared. Because they were ashamed. Because they thought saying something would hurt their career. Because they blamed themselves. Because they convinced themselves, or were convinced by their abusers, that what happened wasn’t assault. Because they thought no one would believe them.

An important national conversation about sexual assault had begun.

And yet, by February 2016, that glimmer of progress had dulled. Here was a trial and attendant media coverage that focused, yet again, on the actions of the women who had come forward — raising questions about who, exactly, was on trial. When people publicly stated they believe women on social media, others loudly barked about “due process,” as though those two things are mutually exclusive.

Here’s the thing: tweeting with the hashtag #IBelieveWomen or #IBelieveSurvivors doesn’t automatically translate to #SendAllMenDirectlyToJail. The accused are presumed innocent until proven guilty — a cornerstone of our legal system and that doesn’t look to change anytime soon, no matter what the hand-wringing about the “court of public opinion” suggests. But why does that mean we must also automatically presume an accuser is lying?

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Pursuing justice via the criminal justice system is rarely worth it for sexual assault victims because, as we’ve seen time and time again, it boils down to a he-said, she-said — or a he-said, she-said, she-said, she-said. Proof beyond a reasonable doubt — which is integral to a conviction — is all but impossible to provide in a sexual assault case. As Toronto criminal lawyer David Butt has been saying for years, our current criminal legal framework fails victims. “Moving away from an adversarial model, I think, is going to be necessary because look at the Ghomeshi trial — who would voluntarily put themselves through that?” he recently told The Canadian Press. Indeed. And yet, the myth that there’s a pot of gold at the end of the false-allegation rainbow persists.

There is so much work to do. But in the meantime, I hope the women who are doubtlessly deciding to remain silent as the result of today’s verdict will think of all the people who are standing outside — in the rain, in the wind — holding up banners and chanting as part of rallies and marches across the country. I hope they will think of all the people who are tweeting and posting in solidarity online. I hope they will hold those people in their hearts.

They believe survivors. They believe you.

jen.zoratti@freepress.mb.ca

Twitter: @JenZoratti

Jen Zoratti
Columnist

Jen Zoratti is a columnist and feature writer working in the Arts & Life department, as well as the author of the weekly newsletter NEXT. A National Newspaper Award finalist for arts and entertainment writing, Jen is a graduate of the Creative Communications program at RRC Polytech and was a music writer before joining the Free Press in 2013. Read more about Jen.

Every piece of reporting Jen produces is reviewed by an editing team before it is posted online or published in print – part of the Free Press‘s tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.