“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.
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.
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
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.
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.
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.