The Ghomeshi Verdict: We Deserve Better

“Violence against women is not about the behavior of the women.”–Gillian Hnatiw, lawyer for Lucy DeCoutere

By his own admission Jian Ghomeshi likes rough sex.

The legal question is whether the three women who met Ghomeshi in 2002 and 2003 like it too.

image

Mr Ghomeshi

 

Jian Ghomeshi was charged with four counts of sexual assault and one count of choking to overcome resistance to sexual assault.  The charges arose after CBC publicly fired Ghomeshi and the Toronto police asked women with complaints against him to come forward.

Three women accepted the invitation.  Their cases were heard by Justice William Horkins.

It was a legal and media gong show.

The law

Before we go into the decision, let’s review a few legal principles:

  • Anyone accused of a criminal offence is presumed innocent
  • The accused can be convicted only if the evidence displaces the presumption of innocence
  • The standard of proof in a criminal case is whether the allegations are proven beyond a reasonable doubt
  • A judge in a sexual assault case must ask himself two questions: did the complainant consent to the actions of the accused and if not, did the accused have a reasonable, but mistaken belief that the complainant consented
  • Lastly, any contact or communications between the complainant and the accused, specifically having sex or talking about sex, is not relevant to the issue of consent

The women   

LR met Ghomeshi in 2002 when she was a waiter at a CBC Christmas party.  She testified to two sexual assaults, one in his car and the other a week or so later in his house.  She said he yanked her hair hard and punched her in the head several times.  After each incident he calmed down but she decided not to see him again.

Judge Horkins focused on a number of inconsistencies in LR’s statements to the police, the media and in court.

He questioned whether the hair yanking came “out of the blue” or in the middle of a kiss, did Ghomeshi yank LD backwards towards the car seat or sideways toward the window, was she “thrown” or “pulled” to the floor in his house, if she didn’t want to continue the relationship why did she send Ghomeshi flirtatious emails and a photo of herself in a red string bikini 18 months after the incident, and most importantly why did LD remember the hair pulling incident as occurring in Ghomeshi’s yellow VW when he didn’t purchase the car until seven months later.

The second complainant, Lucy DeCourtere, is an actress.  She met Ghomeshi in 2003 at the Banff Film Festival and later visited him in Toronto.  She testified that he put his hands on her throat, forced her to the wall, choked her, slapped her and then became calm.  She decided not to see him again, but bumped into him at the Gemini awards dinner and the Banff Film Festival the following year.

Justice Horkins questioned DeCourtere’s credibility and reliability:  she was confused about which came first; the choking or the slapping, she failed to disclose she’d sent flowers to Ghomeshi after the incident to thank him for being a good host and that months later she sent him flirtatious emails about meeting up at the 2004 Banff Film Festival where she sang a karaoke version of Britney Spears’ Hit Me Baby One More Time and Ghomeshi joined her in a duet.

The third complainant, SD, is a dancer.  She met Ghomeshi when she was performing in the park.  She testified that he put his hands around her neck and squeezed so hard she had trouble breathing.

Justice Horkins focused on the inconsistencies in SD’s testimony: she was confused about whether Ghomeshi’s hands were open or closed around her neck or how many seconds they were wrapped around her neck, she said she went out with him a couple of times but only in public places because she was afraid to be alone with him but later admitted to giving him a hand job at his home.

Justice Horkins noted SD and DeCourtere shared 5000 emails.  He wondered whether they were consumed with animus and colluding to bring Ghomeshi down.

The decision

In the course of his decision Justice Horkins acknowledged a number of critical principles that are relevant in sexual assault cases…but didn’t appear to apply them.

He said it’s wrong to use “stereotypical models” to assess the behavior of abuse victims, but didn’t explain what model, if any, he used to determine that LR’s emails to Ghomeshi after the incident, particularly the red string bikini shot, were “at the very least, odd”.

He rejected DeCourtere’s explanation that her post-incident contact with Ghomeshi was an effort to “flatten the negative” or normalize the behavior but didn’t explain why.

He acknowledged that victims often can’t recall “the sequence of such a traumatic event from over a decade ago”, but this didn’t help DeCourtere’s credibility when she became confused about the sequence of choking, slapping and being pushed to the wall.

Justice Horkins said “each case must be assessed individually in light of its own unique set of circumstances”, then proceeded to assess all three women exactly the same way.  The most glaring example was his characterization of all three women as being in the arts and entertainment business.  They weren’t.  LR was a waiter.

He concluded the women were deceptive and manipulative and that their evidence did not displace the presumption of innocence and prove the allegations beyond a reasonable doubt.

Justice is not served

The legal test in a sexual assault case is whether the complainant consented to the actions of the accused and if not, whether the accused had a reasonable, but mistaken belief she had consented.

toronto-jian-ghomeshi

In a “he said, she said” case, the test for consent boils down to the credibility (honesty) and reliability (memory) of the complainant.

The accused is not forced to testify, hence his credibility and reliability are not tested under rigorous cross-examination.

Notwithstanding this hurdle, complainants are offered a modicum of protection from character assassination by the rape shield laws and the principle that contacts and communications between complainants and the accused that occur after the incident are not relevant

Justice Horkins appears to have forgotten this principle.

He devoted pages of his decision to a series of contacts and communications including the red string bikini photo sent 18 months after the incident, the karaoke duet that occurred a year after the incident and a string of emails sent by two of the complainants a decade after the incident.

Justice Horkins concluded the women “engaged in conduct…after the fact, which seems out of harmony with the assaultive behavior” they ascribed to Ghomeshi.

These lurid details are not only irrelevant but provided fodder to the media in a case Jeffrey Dvorkin described as a trifecta of celebrity, sexual violence and victimization.

I’m not saying Ghomeshi would have been convicted had Justice Horkins ignored these irrelevant facts—LD’s confusion over the yellow VW creates reasonable doubt as to the veracity of her recollection of the first assault—nevertheless given the high profile of this case and the fact that only .3% of the 460,000 sexual assaults result in a conviction LD, DeCourtere and SD, indeed all women, deserve better.

Note: the last bullet in the legal principles section has been amended to include “specifically having sex or talking about sex” to more accurately reflect the law.      

Sources: http://www.scribd.com/doc/305846901/Ghomeshi-ruling-full-text

http://ablawg.ca/2014/10/31/jiangho-unchained-a-discussion-of-the-narrative-and-commentary-surrounding-the-jian-ghomeshi-scandal/

http://ablawg.ca/2016/02/08/reflections-on-week-one-of-the-ghomeshi-trial/

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44 Responses to The Ghomeshi Verdict: We Deserve Better

  1. J C says:

    Thank you for this. You have put “pen to paper” and very eloquently stated what I am sure an infinite number of women are thinking.

  2. Peter Usher says:

    Given the judge’s inconsistencies, can we expect a successful appeal by the complainants?

  3. Pingback: The Ghomeshi Verdict: We Deserve Better — Susan on the Soapbox | Dead Wild Roses

  4. John Gulak says:

    I’m not sure how the judge could have ignored the suppression of evidence given under oath when it came time for him to evaluate their credibility as witnesses.

    • John, I’m not a criminal lawyer but it seems to me the first question is: was the evidence relevant; if not it can be ignored. Secondly, was the evidence suppressed or simply forgotten. DeCoutere said in an interview she’s actually forgotten the “nice hands” letter she sent to Ghomeshi. Traumatic experiences do strange things to memory.

      • GoinFawr says:

        You mention the irrelevance of that letter, but I’m not so sure that specifically praising the hands that one later claims have done them violence is entirely beside the point, since, IMO, it speaks directly to consent, no? If so, then it strikes me as a very convenient thing for the complainant to forget.

        And re: “Traumatic experiences do strange things to memory.” Definitely, but surely you’re not suggesting that, regardless of the facts, if someone simply decides to claim they feel that he/or she has been violated the courts ought to produce a conviction, summarily?

      • GoinFawr, I’m not a criminal lawyer but I imagine the “nice hands” letter speaks to credibility. Who knows why DeCourtere wrote it 5 days after the alleged assault. Everything I’ve read about victims’ behavior after an assault says there’s no stereotypical way that they should or do react.

        Also this isn’t about jettisoning the presumption of innocence and the standard of proof beyond a reasonable doubt because “someone simply decides to claim they feel that he/or she has been violated”. The victims can claim whatever they want, but it’s not their decision to press charges, that decision is reserved to the Crown based on its review of the evidence. Ghomeshi’s lawyer, Marie Henein, told Peter Mansbridge that sex assault cases are usually under-resourced by both the police and the prosecutors, but she said this was a very high profile case and if anything it was “over resourced”. If that’s the case I wonder why the police investigation and the Crown failed to discover this letter (and many of the other things the judge focused on, rightly or wrongly) prior to making the decision to proceed with the case.

        Law prof Alice Woolley wrote an excellent piece on the obligations of the Crown in sex assault cases. She notes that notwithstanding the fact that the Crown represents the State, not the complainant who is considered a witness to the alleged crime, the Crown has the duty to ethically prepare the witness (ie not coach them) and to protect them from the wrongful infliction of harm by others. Because as she points out “…let’s be absolutely clear: it is the ethical duty of a defence lawyer to make prosecution witnesses look like liars, even if those witnesses are telling the truth. Here’s the link: http://ablawg.ca/2016/03/29/what-ought-crown-counsel-to-do-in-prosecuting-sexual-assault-charges-some-post-ghomeshi-reflections/

      • GoinFawr, I’m not a criminal lawyer but I imagine the “nice hands” letter speaks to credibility. Who knows why DeCourtere wrote it 5 days after the alleged assault. Everything I’ve read about victims’ behavior after an assault says there’s no stereotypical way that they should or do react.

        Also this isn’t about jettisoning the presumption of innocence and the standard of proof beyond a reasonable doubt because “someone simply decides to claim they feel that he/or she has been violated”. The victims can claim whatever they want, but it’s not their decision to press charges, that decision is reserved to the Crown based on its review of the evidence. Ghomeshi’s lawyer, Marie Henein, told Peter Mansbridge that sex assault cases are usually under-resourced by both the police and the prosecutors, but she said this was a very high profile case and if anything it was “over resourced”. If that’s the case I wonder why the police investigation and the Crown failed to discover this letter (and many of the other things the judge focused on, rightly or wrongly) prior to making the decision to proceed with the case.

        Law prof Alice Woolley wrote an excellent piece on the obligations of the Crown in sex assault cases. She notes that notwithstanding the fact that the Crown represents the State, not the complainant who is considered a witness to the alleged crime, the Crown has the duty to ethically prepare the witness (ie not coach them) and to protect them from the wrongful infliction of harm by others. Because as she points out “…let’s be absolutely clear: it is the ethical duty of a defence lawyer to make prosecution witnesses look like liars, even if those witnesses are telling the truth. Here’s the link: http://ablawg.ca/2016/03/29/what-ought-crown-counsel-to-do-in-prosecuting-sexual-assault-charges-some-post-ghomeshi-reflections/

  5. jvandervlugt says:

    Hello Susan. I was actually surprised when the not guilty verdict came down, but then again I was also not surprised. I worked for 13 years as the Supreme Court secretary in the prosecutor’s office in a small city in BC.

    A few things come to mind. If this exact case was to occur but the accused was “John Smith” down the street, a) would he have the same big dollar defence counsel, b) would the verdict be the same and c) would the media care? I have seen sex assault cases where the accused was a prominent individual who could pay the $$ for the big name lawyer, who, because the accused was well-known in the community, got a lighter sentence. Sadly, there is two levels of justice for those who have and do not have $$.

    Back to Ghomeshi. So the judge is asking questions which include these words: “yanking, thrown, pulled, choked, slapped, hands closed or open around neck.” So if these actions occur during sex, it’s considered “rough sex”, but if these actions were examined on their own, to me that sounds like assault. I know the issue was about consent. But why do these actions lose their meaning when associated with sex, and why do these words get lost in legalities when it came to this case? These women would have stood a better chance if Ghomeshi was charged with assault.

    We keep asking the question, why do so few women come forward? Because they don’t want to be sneered at and re-victimized.

    CBC fired Ghomeshi. You usually fire (get rid of the problem) before it becomes a bigger problem. Unfortunately from my days at Crown Counsel, I know there is usually a lot more that has gone on but can not be proved.

    When is the accused going to have to answer to the allegations? I mean he’s innocent, right, he’s got nothing to lose if he did nothing wrong.

    • Joanna, when I read the decision I wondered whether it really matters that your 12 year old memory is fuzzy about whether you were yanked by the hair backwards or sideways or whether your hair extensions were ripped out or not ripped out. In either case someone did something to hurt you without your consent. And yet all of these little details were used to discredit the victims’ veracity. Then to make matters worse the judge listed a bunch of irrelevant facts–the emails between DeCourtere and SD were sent a decade after the incident, they were nothing more than two women talking about how it’s high time Ghomeshi was brought to account and the judge said it looked like collusion. How can it be collusion when the women didn’t tell each other what to say?

      HuffPost ran an article about the CBC firing Ghomeshi. It said the CBC explained the firing by saying managers had seen “graphic evidence” that Ghomeshi had “caused physical injury to a woman.” I believe this trial is going ahead in June. Here’s the link: http://www.huffingtonpost.ca/2016/03/24/jian-ghomeshi-not-guilty_n_9535852.html

  6. Norm says:

    The behaviour(s) that is prohibited from being explored with a sexual assault complainant during a trial (without a pretrial application seeking approval to question on it) is the complainant’s sexual behaviour ‘after the fact’. That’s sexual behaviour with anyone….including the accused. The legal/policy reason for this is to avoid the sexual stereotype (and the assumptions that flow from those stereotypes) that a person who engages in sex, in general, is less worthy of belief than someone who is not. This applies to both components of a sexual assault; the fact that sexual activity occurred/or not and that the sexual activity with an accused person was non-consensual.

    There is only one person who can claim that sexual activity was not with their consent; that is the person alleging non-consent. In a trial where someone is accused of sexually assaulting another, this issue of consent/non-consent, is the essential first question that has to be addressed. So, how is that to be done?

    In a case where an accused acknowledges there was sexual contact with the complainant but says that it was consensual…..the complainant’s ‘after the sexual activity’ behaviour is relevant to the question of her believability on this essential first question of whether the sexual contact was consensual or not.
    In a ‘she says-he says’ case (which is the majority of them) the (usually) male accused can say until he is ‘blue in the face’ that the complainant was consenting to the sexual activity complained of; but the law is that it is the complainant and only the complainant that can and will be looked to for determining her own consent. Where it is alleged that that consent was not in place, where can an accused look to for evidence on the complainant’s state of mind; other than his own version of events?
    The same place the Judge looked to in this case; the complainants own words and own behaviour(s) (and own omissions) vis a vis the accused. If those ‘after the sexual activity’ behaviours touch on assessing a complainant’s credibility/believability on the threshold issue of consent/non-consent, then they are relevant to this essential element of the allegation and should be explored. This exploration of a complainant’s behaviour is not a ‘systemic’ disbelief of a sexual assault complainant’s version of events; it is a human devised legal system at work trying to balance competing interests. All witnesses at a criminal trial are asked to swear/affirm that the evidence they provide will ‘be the truth, the whole truth and nothing but the truth’. This is presumed to be the case until credible evidence establishes otherwise.
    People are mistaken all the time. People ‘believe’ things that are simply not true or accurate. People are extremely poor at capturing and retaining the world around them. And yet, can be extremely adamant about something they ‘know’ to be the case when testifying.
    And sometimes people lie. Or exaggerate. Or express a change of mind as the truth. Or convince themselves that something that was new, sudden or unexpected at a moment in time was something it was not much later after the fact.

    Everyone of us needs the presumption of innocence. It is not to be watered-down because the social-media mob declares #Ibelievethevictims. When the hoary finger of accusation is pointed at you or someone you care about; it is the only thing standing in the way of the juggernaut of state/government power rolling right over you.

    Just because someone says something/accuses something….doesn’t make it true. We all can and should anticipate that a legal accusation will have legal standards of proof and a legal system where memory and veracity will be tested.

    Is there violence against women in our society? Yes. Way too much. Are there predators and assholes out there? Yes there are.
    But it is no answer to deter/prevent this violence by instituting a carte blanche pre-approval of allegations by a particular category of complainant. Investigations need to occur. Crown Prosecutor screening and assessment of the nature and quality of all charges needs to be done as well. These professional mechanisms serve all of us and are the cornerstone of our criminal justice system. Impartial, trained people taking on the role of ‘accuser’ on behalf of all of us saves our society the menace of mob rule and passions overruling reason and legal protections.

    I can still hear the voice of one police officer from years ago when questioned as to why a particular sexual assault charge was laid by him against a man in the community on ‘facts’ to support that charge that were clearly ‘not there’; he said, ‘because I felt sorry for the victim and wanted to do something to help her out’.

    In other words, an example of the the working-end of a world-view where #Ibelievethevictims is put into practice.

    Writ large, if every (most) police officer(s) and every (most) Crown Attorney(s) applied this mentality, it would bode what for our constitutional protections?
    Ponder a moment what our system of justice would look like and how it would operate and the impact it would have on fellow citizens if #Ibelievethevictims was applied to every allegation that came forward.
    With no scrutiny to overcome, how long would it take for the liars, the smearers, the jilted, the suspicious, the unhappy, the enraged, the bitter, the uninformed etc, etc to move en masse to accuse and bring the apparatus of the State to bear on the subject of their target??

    • Norm, thank you for your analysis. It’s very helpful to have the perspective of a criminal lawyer who actually deals with these issues. I based my concern about the judge’s reliance on after-the-fact contact and communications between the women and Ghomeshi on an article that recently appeared in ABlawg in which Jennifer Koshan says “Nevertheless, we must still assess an alleged sexual assault by focusing on whether consent existed at the time of the incident, and to what specific sexual activity that consent existed, rather than drawing inferences of consent or lack of credibility based on the fact that the parties remain together and have sex or talk about sex. These are the requirements of section 276 of the Criminal Code, as well as consent provision in section 273.1 as interpreted in cases such as R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 and R v JA, [2011] 2 SCR 440, 2011 SCC 28.

      In my mind meeting for a second date, the handjob and the flirtatious emails fell into the “have sex or talk about sex” category and I assumed they should have been excluded.

      I was mystified by the judge’s comments with respect to DeCourtere bumping into Ghomeshi at the Gemini dinner and at the Banff Film Festival. She met him in a public auditorium, surely she can’t be faulted for not running screaming out of the auditorium.

      You make a good point about social media. I agree that it cannot determine the innocence or guilt of anyone charged with a criminal offence. That’s the court’s job. Twitter accounts like #IBelieveSurvivors are better used to express support for women who have gone through these types of experiences. For the record, I believe these women, but as I said in the blog, I don’t know whether the judge had enough evidence to support a conviction beyond a reasonable doubt even if he ignored the evidence I characterized as irrelevant, but I would have preferred that he set out his thinking: how did he avoid stereotypic models of sexual assault victims in his analysis? how did he take into consideration the difficulty of recalling the sequence of traumatic events? Instead he just gave these issues lip service and moved on to criticizing DeCourtere’s #ibelievelucy social media presence and suggesting that she’d taken on the role of “advocate” and “heroine” which in turn destroyed her credibility when she gave evidence about what happened to her in 2003.

      When all is said and done, these are difficult cases. Everyone involved needs to feel they’ve been given a fair shake. I don’t think that happened here.

    • Kathleen Lowrey says:

      So, Norm, you think someone can be “mistaken” about whether or not they were sexually assaulted? Can you explain more about this? I get the part about the liars, the jilted, the bitter, and so on, that part is really familiar and really clear (so very familiar, so very clear). But the “mistaken”? The “uninformed” (they just needed their own consent explained better to them?). Please, say more. I’m fascinated.

  7. Brian says:

    I think JG would have been found not guilty no matter what. There was just no evidence, as their most often is not. That frightens me, for all women, and for my young daughter. As one who has been falsely accused (though with a child – GOD! – my wife ran a daycare and a little girl had an imagination that the parents, rightly!! ran with – I understand the need for evidence. I am thankful I wasn’t ruined by my experience. That said, I am afraid for women. There simply must be a better way to do this!!! I can’t quite figure the whole thing out, but one thing is for sure, as your excellent article lays out, the judge was way off base. Perhaps that is the place to start. He would still have gotten off, but in a manner that did not persecute the victims. Small victory, but, I just don’t know what else we can do. We need our best minds on this!!!

    • Brian, your personal example illustrates why it’s so important that the criminal justice system continue to require proof beyond a reasonable doubt before someone is convicted of a crime and stripped of his liberty. But this can create significant problems in sexual assault cases. Many people have made suggestions for improvement. Toronto lawyer Susan Vella says Crown counsel are extremely overworked and may not be able to prepare complainants properly. She says it would help if complainants had access to their own counsel before they made detailed statements to the police. These counsel would have to develop a close trusted relationship with the complainants to ensure that all the evidence, good and bad, was properly recorded. Brenda Cossman, a UofT law prof specializing in sexuality and the law, said the problem isn’t Canada’s sex-assault laws per se but rather our culture, the attitudes toward the complainants and how the laws are applied. I think Cossman’s comment sums up what went wrong in the JG case.

  8. Carlos Beca says:

    Obviously there are lawyers posting here and we are not any closer to agree with each other in cases like this.
    I appreciate all the very detailed explanations but life is much more complex than just the direct interpretation of the law. There are human beings involved here and we all know that sexual assault is just dismissed too lightly. I wonder if it will be the same when rape involves two men?
    Furthermore we seem to accept the fact that money is a big factor here without much concern. It seems to me that the ‘beyond reasonable doubt’ can be manipulated quite well by expensive lawyers and everything else is secondary.
    What about the fact that the judge is a man. Does that not matter? Can anyone ‘beyond reasonable’ doubt say that this man has no bias against women? Why then allowing the communication after the alleged incident to be used against the victim? Would that happen if the judge was a woman?
    I am no lawyer but I am a human being and something tells me that 3 cases in 460 thousand does not sound right. Like Susan, I do not believe that everyone was given a fair shake.
    I do not believe in mob rule but I much less believe in trials where money and fame talks. Please do not tell me that was not the case in this trial.

    • Carlos you raise a very good point with respect to unconscious bias. Whether we like it or not all of us harbour bias in one form or another. It takes a very disciplined mind to overcome bias when we’re called upon to do so. I’m not saying Justice Horkins was biased, but I found some of his comments (to use his verbiage) “at the very least, odd”. For example he said DeCourtere may have omitted mentioning her flirtatious emails to Ghomeshi prior to the Banff trip because she was afraid that they might reflect badly on her claim. He says “had she genuinely feared that this sort of thinking would unfairly undermine her credibility” he (the judge) may have given her concern serious consideration, however the fact that she didn’t say that, but instead said she was going to disclose this information when the trial began because she thought that was her first opportunity to do so indicated to the judge that she thought she could get away with it. This sounds like: he may not have considered her a liar if she said she suppressed the information because she thought it would undermine her case, but he did consider her a liar when she said she was going to bring forward the information at the start of the trial because she thought that was her first opportunity to do so. Sounds like a “damned if you do and damned if you don’t” situation to me.

      I’m sorry but I screwed up the statistics. The Globe & Mail said there are 460,000 sexual assaults/year. What I messed up was that out of every 1000 assaults, 33 are reported, 12 result in charges, 6 are prosecuted and 3 lead to a conviction.

  9. This post makes me think of a few things:

    We have a small town fellow from BC in the news now being charged with a sexual assault in the US. Guilty or innocent – I wonder if it is going to cause a similar media frenzy. Guilty or innocent – I wonder if he is going to avail himself of a high price lawyer. Are they going to run his reputation through the muck. Are they going to run his accuser’s reputation through the muck? I am sick of listening to it all. Ghomeshi’s trial was like listening to the OJ trial all over again.

    I have always believed that a person, male or female, stark naked running down the street should be free of physical or sexual assault – perhaps needing a psychiatric evaluation – but not deserving bad behaviour from anyone. It doesn’t matter what the person did before or after, but whether they did or were able to consent to whatever supposedly happened to them at the moment of the crime that is the subject of the trial.

    I still don’t understand why a victim must testify and the person on trial doesn’t if you are going to take every action and word the victim did and said and not care one bit about what the person on trial did or said. Believe me if I was charged with anything and on trial I would be fighting to have my say to clear my name – unless of course my crafty lawyer thought it might actually harm my case.

    • Linda, you’ve hit on why these cases are so difficult. It’s up to the Crown to prove Ghomeshi was guilty. The Crown needs to do so through the testimony of the women, which means it had better prepare the women properly. It looks like the Crown failed to do that. As a result Ghomeshi’s lawyer did such a good job of shredding the women’s testimony that she didn’t have to put Ghomeshi on the stand. It certainly helped that the judge let Ghomeshi’s lawyer ask all sorts of questions that may not even have been relevant.

      Before the trial DeCourtere said she wasn’t worried about giving her testimony because all she was going to do was have a conversation with Ghomeshi’s lawyer about something that happened 12 years ago. DeCourtere said “the fact that people …build it up to be more is why more women are unable to share their experiences about violence.” After the trial she said “the trial has been immeasurably more traumatic than what Jian did to me. Because after everything I went through, Jian is free.”

      And we wonder why there is a .3% conviction rate for sexual assault in this country.

      • So glad to get this opinion, Susan! I was surprised that there was no apparent legal representative advocating for the victim(s). The course of events was shocking, to say the least, to those of us who get our education from ‘Law and Order: SVU.’
        Looking forward to a different scenario in the upcoming case involving the CBC employee. …… Hoping for a fairer exchange!

      • Jane, one complainant, DeCourtere, had counsel who helped her in the weeks leading up to the trial but she was doing the file pro bono and planned to spend 2 days with DeCourtere just prior to her testimony helping DeCourtere prepare. That plan went up in smoke when DeCourtere was called to the stand much earlier than expected.

        Alice Woolley, a UofC law prof, wrote a blog on the role of the Crown prosecutor in these cases. She says that even though the Crown represents the public, not the complainant, the Crown has an obligation to prepare (not coach) witnesses especially in sexual assault cases where witnesses are “far more vulnerable” than ordinary witnesses and in need of better preparation and protection at trial. I get the sense that didn’t happen in this case. I too hope that the CBC employee in the upcoming case will be better prepared.

        Here’s the link to the Woolley blog: http://ablawg.ca/2016/03/29/what-ought-crown-counsel-to-do-in-prosecuting-sexual-assault-charges-some-post-ghomeshi-reflections/#more-6860

  10. jerrymacgp says:

    Not a lawyer, just a citizen… A couple of comments, if I may. Firstly, my inference from reading the judgement (& I did read it), is that the complainants’ behaviour after the alleged assaults, and their lack of candour about it, went to their credibility writ large, not to the issue of consent per se; in other words, if they were not fully truthful about that, can they be believed beyond a (reasonable) doubt when they said Mr Ghomeshi assaulted them? In a “she said-he said” case, believe or not is the only question, and anything that negatively reflects on a witness’ truthfulness and honesty will introduce reasonable doubt.

    Secondly, why did these cases take so long to come to light? There is no statute of limitations in Canada, but the fallibility of human memory means that accounts of events such as this, no matter how honestly presented, should be considered very carefully. Yes, I know there is probably psychology to explain that, but the fact remains that many of us would be hard-pressed to recount accurately events of almost 15 years ago. That isn’t lying, just imperfect recall.

    • You’re right Jerry. My concern is this. If the law prohibits the exploration of sexual behavior after the event as Norm Kelly says and this prohibition extends to having sex and talking about sex as Jennifer Koshan says then much of the “suppressed” evidence, including the crude and sexually explicit emails should not have been raised on cross-examination or relied upon by the judge to diminish the complainants’ credibility. There was plenty of other evidence, the inconsistencies in the sequence of slaps, yanks, etc, the fact Ghomeshi didn’t own a yellow VW, the “good host” flowers, that the judge could and did consider in order to decide whether the complainants were credible. I should have made this point more clearly.

      With respect to why the complainants took so long to come forward. Toronto Police Chief Blair asked women with a complaint against Ghomeshi to come forward after Ghomeshi was fired in 2014. And you’re right, trying to remember something that happened over a decade ago is very difficult. I’m sure many women following this case have taken that lesson on board–file a complaint immediately or forever hold your peace.

  11. ronmac says:

    An observation.

    First we have Jian Ghomeshi, being forced to resign from his high profile post at the CBC because of alleged accusations of sexual assault. Howls of outrage were heard across the land.

    Meanwhile we have Joe Mimran, Canadian fashion entrepreneur and founder of the Joe Fresh and Club Monaco chains, joining the CBC program Dragon’s Den last fall. In 2013 one of those sweatshops in Bangladesh where Mirman was getting his stuff made collapsed, killing over 1100 workers, mostly women. I didn’t see any protest signs outside CBC HQ in TO. Did anyone? There has been lots of exposure about the unsafe working conditions endured by women in these sweatshops that have made Mimran and other like him rich.

    A glowing CBC press release described him as “a lifelong entrepreneur” with “a distinct style and a reputation as a tastemaker.” Apparently the violence against women banner has a limited definition.

    • Peter Usher says:

      I believe it’s titled ‘situational ethics.’

    • Ronmac and Peter: excellent point. The CBC was part of the media horde demanding the court release LR’s red bikini photo. The media’s lawyer said the media had the right to see the photo with the face blurred to protect LR’s identity and to release it to the public so the public could assess the credibility of LR’s claim that she sent the photo to Ghomeshi as bait. It all comes down to what sells—shots of a woman in a red bikini or landing a “lifelong entrepreneur” to appear on Dragon’s Den—it all adds to the bottom line. It will be interesting to find out what the CBC knew about Ghomeshi and how long they knew it before they decided their top radio host didn’t fit their Code of Conduct and fired him.

      Here’s the link to the CBC red bikini article: http://www.cbc.ca/news/canada/toronto/media-outlets-lose-battle-for-bikini-photo-in-jian-ghomeshi-case-1.3433981

    • Carlos Beca says:

      Ronmac, examples like this abound and, like you said, no one pays much attention to them. Peter Usher mentions the name ‘situational ethics’. I would call it ‘convenient ethics’ and unfortunately are everywhere these days.
      Humans are, in my opinion, the biggest predators on this planet, and your example defines that well. Most ‘consumers’ do not mind the cheap clothes and the price that other humans have to pay to make them — well it is them, not us and most commonly ‘the price of doing business. Politicians call it ‘Free Trade’ and a more sophisticated word is ‘Globalization’. It involves millions of people but as long as we do not have to see it, it is alright. According to the UN, there are 31 million slaves in the world today, most of them working under what for us is horrible conditions. They are producing our cheap trinkets. Very sad indeed and thank you for bringing this up. It is an important discussion. There are many Mimrans leaving around us. Our system is not interested in those people, they prefer to go after regular people like me and you. We are the real problem!!! 🙂

  12. Kathleen Lowrey says:

    I feel so upset for the women who got put through the wringer in this trial. However, I hope they end up feeling — years down the road — that actually what they went through helped to serve the cause of justice. The Ghomeshi case just illustrates *so* many things about sexual assault and sexual violence: being compliant towards your assailant afterward, for example, or even sort of cravenly seeking their approval. The brazenness of his pattern of creepy behaviour and the enjoyment he got out of hurting and humiliating his victims and the ease with which, as a handsome, charismatic, well-connected man, he found one after another after another after another. The parading of those women’s vulnerability and confusion was, I am sure, *horrible* for them to go through. But the whole sad, creepy, obviously unjust (if technically, legally, unprovable) scene was like a series of important lessons written in flaming letters in the sky. I haven’t seen a lot of triumphalist “in your face / poor innocent accused / bitches be lyin'” coverage in the aftermath, which is progress in itself.

    (Christine Blatchford’s shuddersome reaction aside, where she works herself into a lather praising the glowing beautiful triumph of justice that the trial outcome represented: what must it be like to inhabit her soul?)

    • Katherine, you nailed it when you said the Ghomeshi case illustrates so many things about sexual assault and sexual violence. Jennifer Koshan of the UofC law school has done several blogs on this topic. She refers to a series of interviews on The Current where Elaine Craig describes the defence tactic known as “whacking” where questions grounded in rape myths and stereotypes are used to destabilize the complainant. A defence lawyer came on at the end of the segment to say “whacking” doesn’t really happen anymore. However Craig said that in the Ghomeshi case the complainants were asked about their failing marriages and their foundering careers. Can you imagine a bank teller who’s giving testimony about a robbery being asked the same questions?

      The interview includes a segment with neuroscientist Lori Haskell who explains that sex assault victims suffer from memory lapses because during an assault all the victim can focus on is survival; peripheral details like the colour of the room or what the assailant was wearing don’t register. Haskell says this becomes problematic when the victim is asked to recount details in a linear fashion because all she has are fragments and she’ll fill in the blanks in an effort to make sense of it all. Here’s the link to Koshan’s blog which contains the link to the interview: http://ablawg.ca/2016/02/08/reflections-on-week-one-of-the-ghomeshi-trial/

      I stopped reading Christine Blatchford after her series on the Mike Duffy trial when she couldn’t stop fawning over Nigel Wright.

  13. Carlos Beca says:

    I am surprised that there are quite a few comments about memory and what one can remember. I remember without any trouble of facts that were important in my life 40 years ago. 10 years is nothing really. I am surprised that it is actually an issue.
    Interesting that you mentioned Christine Blatchford because I never liked her articles.

    • Carlos, the issue of memory after a traumatic event is fascinating. Neuroscientists say they’re not created or encoded the same way as normal memories. The best example faulty traumatic memory that I’ve found is Daniel Greenberg’s paper on President Bush’s false memories of 9/11. Bush gives three accounts of how he learned about 9/11. In Memory 1 given on Dec 4, 2001 (roughly 3 months after the planes went into the Twin Towers) Bush says he was in Florida waiting to go into a classroom to talk to kids about reading and he saw an airplane hit the tower on TV. He said Andy Card came into the classroom later and told him about the second plane hitting the tower. Memory 2 is dated Dec 20, 2001 (16 days later). Bush says he was in the classroom talking to the kids and Karl Rove came in and told him about the first plane and Andy Card came in later and told him about the second plane. He describes Memory 3 on Jan 5, 2002. It’s essentially the same as Memory 1. Greenberg points out that Memory 1 and Memory 3 are impossible because there was no footage of the first plane hitting the Tower at the time Bush said he saw it on TV.

      The conspiracy theorists went bonkers, but Greenberg says this is nothing more than Bush succumbing to the fallibility of traumatic memory. Here’s the link: https://www.msu.edu/course/psy/401/Readings/WK10.PresentA.Greenberg%20%282004%29.pdf

      If Bush’s memory failed him 3 months after 9/11, I imagine an assault victim’s memory might fail them 12 years after the event. This doesn’t mean the event didn’t happen, just that they remembered the sequence of events incorrectly.

      • Carlos Beca says:

        Susan I understand your point clearly and I have no doubts that all of us are somehow affected by years and also by our biases.
        In the case of George Bush I think it is a different problem. These people lie so much that they end up not knowing what the truth really is. Also they lie to themselves and end up believing their own lies. Conrad Black is a good example of this.
        I am truly sorry for these women and others that go through the same experience. One has to be very courageous to put up with what goes on in a trial like this.
        I watched the interview by Peter Mansbridge and I was impressed with how tough his questions were. Of course Marie Heinen had an answer for all of them and they also were impressive answers, but she blinked a couple of times in my opinion. She had just mentioned that the crown is generally under resourced, to then say that in trials like this one that they are over resourced. Hmmm I did not believe that one. If they were over resourced, in my modest opinion, the victims would have been much better prepared. Marie just ripped them apart without much trouble.

      • Carlos, I watched Mansbridge’s interview with Henein and noticed two areas where Henein contradicted herself in a way that would have gotten her into trouble on cross-examination. The first was the one you raised–resourcing. She said that as a high profile case it was “over” resourced. When Mansbridge pressed her on this she softened and said it was “properly” resourced. There’s a huge difference between “over” resourced and “properly” resourced. The second contradiction was when Mansbridge asked her why she took the case. She said this case was like any other case, there was nothing unusual about it, “nothing particular”. Not only is that disingenuous given Ghomeshi’s profile (she herself called it a high profile case when she was discussing the resourcing question), but her characterization of the case being nothing special doesn’t fit with her discussion about all the attention it got and how “devastating” this attention was to Ghomeshi.

        It would have been interesting to see someone like Henein cross-examine Henein on these inconsistencies.

        Don’t get me wrong. She’s an excellent lawyer. I’m only pointing out how easy it is to contradict yourself in the space of a few minutes, let alone over the space of months and years.

  14. Carlos Beca says:

    Susan I agree.
    it may have been devastating to Ghomeshi but nothing compared with what these women went through and that is the sad part of the story.
    She may be an excellent lawyer but not in my world. She knows how to win cases and in the process release people that should be in prison. It is amazing what constitutes an excellent lawyer but if you think about it, it is exactly the opposite of good justice.
    Our views of reality are so distorted that it is a miracle that we have not already destroyed everything.
    Imagine what a young person thinks about all that is being said about this case and how the system works. We then expect them to be fair. Intelligence does not work that way. Is it any surprise some young people actually go fighting with ISIS? Only if one uses the glasses we so intelligently wear all the time.

  15. David Grant says:

    This is a very informative piece and I think it should be read by everyone. I think that one should never lose sight of the fact that everyone is presumed innocent until proven guilty and that includes Gian Ghomeshi. I don’t think his lawyer did anything unethical or improper, and if she did, there are procedures to deal with these actions. I think that the fact that victims aren’t believed is troubling and the fact that the judge didn’t believe the victims because they didn’t have a perfect memory of the events in question. Perhaps this is something that the mental health professionals can assist with. Perhaps their experiences in counselling victims of sexual assault can be used to assist all judges and lawyers. By the way, what are the tools, legal or not, that can be used to separate those accusers who don’t tell the truth from those that do?

  16. David Grant says:

    I should have stated: I think that the fact that victims aren’t believed because that they don’t have memories instead of what I said in reference to the judge. That should clarify my statements a bit. Thank you.

    • David I agree with both your points: (1) everyone should be presumed innocent until proven guilty (I hope everyone who jumped to Ghomeshi’s defense based on this principle remembered it when they read the Duffy verdict) and (2) the fragile state of the victim’s memories must be properly considered when these cases are heard. Thanks for your thoughtful comments.

  17. GoinFawr says:

    Ok, guilty verdict or not, after today’s apology (IE admission of guilt) I am DONE with Jian Ghomeshi. He sounds like one of those puerile pre-teen bullies from my childhood who, because they couldn’t handle their own puberty, would assault female students; except that Mr.Ghomeshi is supposedly an adult, so he doesn’t even have that weak excuse.

    • You nailed it GoinFawr. Kathryn Borel made that point well when she said: “Mr. Ghomeshi hasn’t met any of [the other victims] allegations head on as he vowed to do in his Facebook post of 2014. He hasn’t taken the stand on any charge. All he has said about his other accusers is that they’re all lying and that he’s not guilty. And remember, that’s what he said about me.”

      He said, she said.

  18. Pingback: Marie Henein’s Take on Kellie Leitch | Susan on the Soapbox

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