The two courts in which Jian Ghomeshi has been concurrently tried—the criminal justice system and the court of public opinion—collided with brute force on the morning of March 24. In courtroom 125 of Toronto’s Old City Hall, Ontario Court Justice William B. Horkins read his 25-page ruling acquitting the former CBC Radio host on four charges of sexual assault and one count of overcoming resistance by choking. The judge’s plainly worded decision was unsparing in describing the three complainants’ lack of reliability and credibility: they were “deceptive,” “manipulative” and showed “a wilful carelessness with the truth,” he said. If a hashtag had been attached, it would have read: #IDoNotBelieveThem.
Outside, in freezing rain, protesters gathered, as yet unaware of the judge’s words but resolved: they chanted and held up placards —#IBelieveSurvivors and #IBelieveVictims—in support of the complainants. The dichotomy between inside and out served as foreshadowing of the marches and protests that would sweep across the country over the weekend, as the Ghomeshi ruling was variously condemned or celebrated and the case continued to provide fodder for a broader discussion of gender roles, sexual mores, and sexual violence experienced but never reported.
It’s been an ongoing conversation ever since Jian Ghomeshi, once given the CBC institutional imprimatur as a progressive, enlightened marquee face for the public broadcaster, was recast as a poster boy for rape culture and sexual violence. Ghomeshi’s public firing in October 2014, amid allegations he’d sexually assaulted several women, dovetailed with a broader debate over a lack of understanding and failure to prosecute sexual violence, as seen in the tragic case of Rehteah Parsons, protests over campus rape, and the increasing number of women coming forth to accuse Bill Cosby.
So it wasn’t surprising that long before the eight-day Ghomeshi trial commenced in February, expectations were already set: the trial was seen as an opportunity to train a spotlight on flaws in the prosecution of sexual assault, a crime for which reporting and conviction rates are notoriously low. One widely quoted 2012 study found that for every 1,000 sexual assaults, only 33 are reported; of these, 12 result in charges and six go to trial, where only 45 per cent result in conviction.
But as it unfolded, the trial didn’t hold up the predicted looking glass to the judicial system—rather, the image reflected back was distorted, seen through a funhouse mirror. The external circus surrounding the trial had infiltrated courtroom 125, despite Justice Horkins’s vow to ignore the external hoopla on day one: “My focus is on what happens inside this courtroom,” he said. The external “Ghomeshi scandal,” as the judge called it in last week’s ruling, would affect the judicial process in ways that compromised its outcome, and now shadows the lessons learned.
[brightcove id=’4827563571001′ width=’822′ height=’462′]
The fact the Ghomeshi case is being treated as a prototype, one that some already contend will have a chilling effect on victims of sexual assault coming forward, concerns some victims’ rights advocates. “It’s a very bad case for the victims’ rights movement to be jumping up and screaming about,” says Toronto lawyer Jonathan Rosenthal. It’s atypical: “This is a case where, bottom line, the complainants all lied,” he says, referring to the three women denying making contact with Ghomeshi after the alleged assaults. “It’s the wrong case for people to be out protesting the fact that victims are put on trial.” That this is happening, ironically, perpetuates the very stereotypes and myths that R. v. Ghomeshi case was originally hoped to expose.
The Ghomeshi criminal case resembled a normal sexual assault trial in enough details to be mistaken for one. The allegations were historical, dating back more than a decade to 2002 and 2003. (Sexual assault victims frequently delay coming forward, which means there’s no forsenic evidence.) The fact the accused was known to, even at some point desired by, the complainants is also typical. And, as both Crown attorney Michael Callaghan and defence lawyer Marie Henein stated in their closing arguments, it’s normal for a sexual assault victim to reach out to, or even continue a relationship with, someone who has sexually assaulted them, as occurred in the Ghomeshi case. Many don’t fully disclose all details around the assault or what followed, particularly ones that might be embarrassing or seen to jeopardize conviction.
But a case captured by a throng of TV cameras and reporters lining up at dawn was hardly a test case. Its high profile made the stakes unusually high. Never are complainants actively recruited, as occurred in early November 2014, when Toronto Police Services sent out an APB for other victims to come forward after eight women alleged in a Toronto Star story that they’d been assaulted by Ghomeshi. They were assured their accounts would be taken seriously, a new glasnost toward reporting sexual assaults. “We believe them right from the outset,” Joanna Beaven-Desjardins, a sex crimes inspector on the force, told the media. Multiple testimonies bolster odds of conviction, Beaven-Desjardins said: “When you have more than one person giving the same story regarding consent, then that’s definitely showing a pattern.” The police initially laid charges involving six women; two of their cases were later dropped by the Crown. One remaining sexual assault charge against Ghomeshi, related to an incident allegedly occurring at the CBC, will be heard in June.
Patterns also emerged among Ghomeshi accusers who came forward to media. By November 2014, more than 20 women alleged Ghomeshi had assaulted or harassed them—slapping, hitting, punching, choking, biting—in a sexual context, dating to 1988. The first to go public, actress and Royal Canadian Air Force captain Lucy DeCoutere, became a figurehead, inspiring #IBelieveLucy. The second, lawyer and writer Reva Seth, who dated Ghomeshi briefly in 2002, wrote in the Huffington Post in 2014 that Ghomeshi suddenly “became a different person”—“super angry, almost frenzied and disassociated: he had his hands around my throat, had pulled down my pants and was aggressively and violently penetrating me with his fingers.” The disconnect was jarring: “I remember thinking, ‘What the f–k is going on here?’ ” She left immediately, and never considered filing charges. DeCoutere and Seth were the public faces signalling a new candour about sexual assault.
But there was a cost. Most sexual assault complainants don’t engage in multiple media interviews, 19 in DeCoutere’s case, readily available to be filleted by the defence for inconsistencies, contradictions and omissions. In so doing, they set a narrative, which omitted embarrassing details that didn’t jibe with their own perceived behaviour of a typical victim—a script that doesn’t exist. Clouding the picture further was the complainants’ public posture of animus toward Ghomeshi that conflicted with earlier private entreaties to him. In court, all would be caught out in their denials that they did not seek out Ghomeshi post-assault. In court, the litany of omissions, contradictions and admitted lies would render moot the core of their case: the alleged sexual assaults. At no point were they contradicted in the allegations that they were assaulted; nor were they shaken into saying that they did consent.
Related: Marie Henein’s shoe taboo
The performance of the witnesses further weakened a prosecution that was tepid to begin with. As the public learned in the Ghomeshi trial, the Crown doesn’t represent the complainant; it represents the public, and is known to be under-resourced. Nor does it investigate a crime; that is up to police. No client-lawyer privilege exists; anything a complainant says can be shared with the defence, which is under no similar obligation to share evidence. That means complainants are not routinely prepped the way a lawyer like Marie Henein would prep a defendant.
The high-profle nature of the Ghomeshi case created another anomaly: lawyers volunteered to help pro bono—atypical in sexual assult cases. That didn’t necessarily assure great legal preparation, only that Henein could point out that they had legal guidance. Lucy DeCoutere’s lawyer, for instance, didn’t seem willing to take a flight to Halifax to prepare her client for the most watched sexual-assault trial in the country.
Add to that the new culture around believing victims of sexual assault that discouraged them from being challenged outside the courtroom. The new normal, in some quarters, is to not question women, to not disbelieve them. As well-intentioned as the aim is, the witnesses appeared to go into the trial not having been tested. The first witness’s police interview, the court would learn, lasted only 35 minutes.
The fact the complainant has a huge responsibility in court—as well as agency—appeared something the witnesses didn’t seem to take seriously, even though anyone who has watched a legal procedural on TV ought to know you can’t lie on the stand about anything, or try to be cute or funny, that the law is serious business filled with procedural potholes.
The sense of sisterly solidarity outside the court undermined the women within. That two of the complainants had exchanged more than 5,000 Facebook or text messages within a year in which they vowed to “sink the prick”—in reference to Ghomeshi—gave rise to a case of possible collusion, thereby forcing the Crown to abandon an application to argue a “similar fact” case that would have required the judge to look at the three cases together, thus bolstering them collectively.
Then there was the framework of the judge trial. The Crown would be slammed for not calling an expert witnesses to explain how victims of sexual violence tend to internalize the crime, how they stay in or even pursue the relationship or how trauma can affect memory. Criminal defence lawyers point out, however, that doing so is the norm only in jury trials; calling expert witnesses in a judge-only trial would be seen as an insult to the judge, who is assumed to be up to date on the legal and academic research.
Whether or not this is true is unknown, given the secrecy that shrouds judicial protocols. Judges, like lawyers, participate in continuing education in a range of topics, including sexual assault, which is offered by the National Justice Institute, an independent body. But executive director Justice C. Adèle Kent wouldn’t provide details about the kind of material covered, who teaches it, who attends it or how often such ongoing education happens. “I can confirm that the criminal law content in both types of courses is updated regularly,” she told Maclean’s in an email, before closing the vault: “For security and judicial independence reasons, we do not provide information about the attendance of judges at specific programs.”
Justice Horkins’s ruling, which echoed the defence’s key arguments, down to quoting Henein accusing the first witness of “playing chicken” with the judicial system, was clearly, and bluntly, written for an audience beyond the courtroom. The judge’s recognition of the trial’s broader implications was evident in the first week, when he denied a media lawyer’s application to make public a photograph sent via email by the first witness to Ghomeshi, in which she’s wearing a bathing suit. Doing so could inhibit other victims from coming forward, he ruled. Now, ironically, in a bit of self-fulfilling prophesy, his ruling is being blamed for potentially doing the same.
The judgment offered insight into why the conviction rate for sexual assault remains so low. He could not say the alleged attacks didn’t occur, Horkins wrote in roundabout language: “My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened.” That was immaterial given that the threshold of guilt “beyond a reasonable doubt” was not met. “At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false,” he wrote.
The ruling also detonated the notion that sexual assault trials revolve around a “he-said, she-said.” It’s entirely “she-said,” where any allegations made are coloured by the defendant’s presumption of innocence, a bedrock of the criminal justice system. The defendant has the right to remain silent; Ghomeshi did not testify. As such, allegations against Ghomeshi hinged on a complainant’s sworn testimony: “There is no DNA. There is no ‘smoking gun,’ ” the judge wrote.
But even when DNA evidence exists in a sexual assault trial, guilt isn’t assured. That was seen in a 2008 case Horkins presided over, R v. A.M. , that saw a man accused of assaulting two women be acquitted after DNA evidence was submitted to the court. Reasonable doubt remained, Horkins wrote in his ruling, even though, as he said, the accused’s version of events “reads like a schoolboy’s fantasy.” “[The defendant] is entitled to the full benefit of the reasonable doubt that lingers after a full and careful examination of all the evidence,” he wrote: “We have an unfortunate history of occasionally convicting the innocent and probably more frequently, freeing the guilty.”
In his verdict in Ghomeshi, the judge expressed a broader world view in choosing to frame Ghomeshi’s termination from the CBC in 2014 as occurring “in the midst of several allegations of disreputable behaviour toward a number of women.” “Disreputable,” suggesting louche or unseemly activities, is an odd word in this context, given that allegations against Ghomeshi at the time were of criminal or at the very least violent behaviour. An internal CBC memo referred to “graphic evidence that Jian had caused physical injury to a woman,” in reference to a video Ghomeshi showed CBC executives of a woman he dated with serious bruising resulting from a cracked rib. But “disreputable” is consistent with Ghomeshi’s version of events posted on Facebook hours after his firing was announced. He wrote that he enjoyed “rough sex (forms of BDSM)”—defined by a “mild form of Fifty Shades of Grey”—but all of his behaviour was consensual, a claim inconsistent with the fact that outside of the world of sports, one cannot legally consent to physical harm. Ghomeshi, in the same post, blamed a jilted ex for waging a “campaign of harassment, vengeance and demonization” and claimed the CBC was denying his human rights by declaring “this type of sexual behaviour was unbecoming of a prominent host on the CBC.”
Echoes of the “jilted girlfriend” trope were also evident in Horkins’s comparisons between the three complainants: each had “a brief relationship with [Ghomeshi] that ended badly,” he wrote. Yet only the first witness, who testified Ghomeshi “threw me out like trash,” indicated a fractious end. No evidence or testimony showed to any certainty that the relationships ended badly—only that the women continued to want contact with Ghomeshi and he did not.
Details from the Ghomeshi judgment reveal areas that rankled the judge. He rebuked DeCoutere for her frivolous tone, for referring to criminal proceedings in text messages as “theatre at its best” and for boasting to the third witness in a text: “I am to sexual assault what David Beckham is to Armani underwear.” He also expressed distaste for the language employed by DeCoutere and the third witness about Ghomeshi—“sink the prick . . . ‘cause he’s a f–king piece of s–t,’ ” referring to “crude vernacular.”
Another odd twist saw him theorize that DeCoutere’s “questionable conduct as a witness,” including inconsistencies in her testimony, stemmed from her role as an advocate for victims of sexual violence: “Ms. DeCoutere felt that she had invested so much in being a ‘heroine’ for the cause that this may have been additional motivation to suppress any information that, in her mind, might be interpreted negatively,” he wrote. He had no grounds to make such an assertion, the judge admitted: “I do not have sufficient evidence to conclude that this was in fact a reason for suppressing evidence, but in light of the amount of compromising information that she wilfully attempted to suppress, it cannot be ignored as a live question.”
In places, the verdict mirrored the mistaken notions the victims themselves, and many in the public more broadly, had about victims’ behaviour. The fact the first witness sent a bathing-suit photo as “bait” elicited puzzlement; the judge noted that the “expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models.” Yet he immediately countered this: “Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd.”
Several paragraphs in the ruling appeared to speak directly to the protesters outside the court: “The courts must be very cautious in assessing the evidence of complainants in sexual assault and abuse cases,” Horkins ruled. “Courts must guard against applying false stereotypes concerning the expected conduct of complainants.” These stereotypes extend to believing all survivors: “I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable,” he wrote. “However, the twists and turns of the complainants’ evidence in this trial illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances.”
On its face, the remark is unimpeachable; to automatically believe everyone who came forward with an allegation of sexual assault would mean there was no need for sexual assault trials. But highlighting false claims of sexual assault, estimated to be low, between two and eight per cent, seemed a decidedly odd note given that under-reporting sexual assault is a much bigger problem.
Post-ruling, R. v. Ghomeshi remains a cultural Rorschach test. It’s possible to applaud the judgment and also believe Ghomeshi did it. The case reveals biases, beliefs and the need for clarity and education. Some lawyers contend that it revealed a functioning system: “This is a case that showed that the adversarial system worked and that someone didn’t get convicted on flimsy evidence,” Rosenthal says. Yet another cadre argues for a complete rethink of how sexual assault cases are tried; some call for specialized courts, similar to those used in drug and mental illness cases; others have suggested trying them like civil cases, which entails a lower burden of proof and lower penalties. Whether “sexual assault” needs to be repositioned more generally as “assault” is another suggestion being floated; the aim here would be to remove the shame and blame institutionalized in the courts, which automatically impose publication bans to protect complainants’ identities, even as victims are reassured they have nothing to feel shameful about.
In one paradox of the Ghomeshi case, the defence’s focus on dismantling witness testimony saw the very crux of sexual assault—whether or not consent took place—virtually absent from the proceeding. The law is clear on consent: it’s subjective; seeing the accused—even having sex with him or her at a later date—does not obviate an earlier assault; consent cannot be granted retroactively. But human interactions are more complex, as the Ghomeshi trial made clear. A professor at the University of Toronto told Maclean’s that discussion among her first-year students the day the verdict was read revealed their anxieties about dating and forging intimate relations. “The case made students, male and female, question who could be trusted—not only in terms of being attacked but also being believed.” And, as the Ghomeshi trial showed, more platforms of communication to negotiate relationships and consent—replete with flirty texts and never-to-be deleted images— further blur the question.
There has been a response to the lack of education, too. In 2015, Ontario Premier Kathleen Wynne launched a provincial Sexual Violence and Harassment Action Plan with consent as its centrepiece. The Ghomeshi case also inspired a recently announced pilot project by the attorney general of Ontario that would offer free legal advice to survivors of sexual assault to help them make informed decisions about their next steps.
Both inside and outside the court, the Ghomeshi scandal showcased how sexual assault remains both misunderstood and normalized, a toxic combination. Though “sexual assault” replaced “rape” in the Criminal Code more than three decades ago, to span everything from unwanted touching to forced intercourse, non-consensual intercourse remains a benchmark for violation. DeCoutere testified that she didn’t know that being pushed against a wall, choked and slapped was sexual assault: she wasn’t “beaten to pieces,” she said; she wasn’t “broken and raped.” Reva Seth, a lawyer, cited that as one reason she didn’t report: “I didn’t do anything because it didn’t seem like there was anything to do. I hadn’t been raped. I had no interest in seeing him again or engaging the police in my life.” Her legal training taught her that her willingness to go his house, where they smoked a joint and had a few drinks—a context in which many sexual assault cases occur—would leave her vulnerable in court.
DeCoutere testified she kissed Ghomeshi and pursued him after the alleged attack, to “normalize” the situation. She, like the other complainants, said they wanted to see the sudden act as an abnormality, so much so they chose to minimize it, even pretend it didn’t exist: “I never asked him about it because it was something I felt embarrassed for him to have done,” DeCoutere testified. She went one step further. In testimony submitted to the court she asked a friend, “Is this normal?” after reporting Ghomeshi had choked her.
In the decades since sexual assault laws were rewritten, the boundaries of what is “normal” in terms of sexualized violence have been increasingly blurred—in popular entertainment, video games and pornography. When he was the face of progressive coolness, Ghomeshi wrote about pornography as educative in his 2012 bestselling memoir, 1982: “I was 13 then, and I had no idea what I was doing,” he writes. “Part of the problem was that I didn’t have the benefit of pornography. Without porn, how were we supposed to learn how sex was done?” In the next sentence, he switched gears to the political correctness expected of a CBC figurehead: “Of course, pornography was often sexist, exploitative, patriarchal, and full of the wrong messages about human relationships and intimacy.” Last weekend, the CBC, the institution that made Ghomeshi famous, joined the bigger conversation with an all-male panel on The National to discuss masculinity, and the role of men in rape culture. It’s a conversation that shows no indication of resolution anytime soon.