Law and Justice: The Ghomeshi Verdict

On Thursday morning, the infamous Jian Ghomeshi trial came to an end with a verdict of not guilty.

It was a verdict that left many Torontonians and Canadians disappointed in the justice system and disillusioned at how it treats victims of sexual crimes. I can remember reading the breaking news on the subway bulletin on my way to work. “Shit” I muttered as I read the screen.

Although strangely enough, even though I was disappointed in the verdict, I can’t say that I was particularly blind-sighted by the news, as though it was the last thing I expected. In fact, every one of my friends and colleagues that I spoke to about it later that day seemed to share the same anticipative disappointment.

“It sucks, but I’m not really surprised.”

“At least his career is over.”

These were some of the lines I heard all day, from women and men alike talking about the trail as nonchalantly as though it were the weather.

Was the verdict a representation of a flawed justice system that still largely blames the victims of sexual crimes instead of the perpetrators?

Or maybe the verdict was the result of the very tricky set of circumstances that came with the trail and was in keeping with the narrow definition of the law.

First things first, the sexual assaults the witnesses described were said to have happened between December 2002 and July 2003. When the trial eventually began in February 2016, nearly a decade and a half had passed. Ghomeshi’s lawyer, Marie Henein, used this fact to her advantage when cross-examining all three women, focusing on why they waited so long to seek the authorities and how much of the incidents they could clearly remember after so much time had passed.

For instance, Henein would ask all three women to describe their assaults in acute detail, only to correct them afterwards about small details like the colour of a car, clothing or the time of day to discredit the testimony.

Furthermore, the sifting through of fourteen years worth of e-mails, text messages, phone records, and social media revealed a much thicker plot than what was previously thought.

During cross-examination, witness Lucy-Anne DeCoutere was asked about a letter that she wrote to Ghomeshi several days after her alleged assault. One of the sentences in the letter reads “…you kicked my ass last night and that makes me want to fuck your brains out.”

In another instance, another women sent Ghomeshi a photo of herself in a bikini also days after her alleged assault. The witness, whose name is protected under a publication ban, argued that she only sent those pictures as bait in order to confront Ghomeshi about the assault.

Neither of these instances change or disprove the fact that each woman was assaulted, nor does it somehow make his actions acceptable, but they were very important pieces of evidence that seemed to imply consent to the extent that both women wanted to continue an intimate relationship with Ghomeshi.

During Henein’s cross-examinations, it was clear that all three witnesses’ credibility, memory, reliability and honesty were being questioned. As a result, the defense ended up with the upper hand throughout the trail. Discrediting the witnesses’ became the trail’s spotlight and not the examination into the legality of Ghomeshi’s actions in the first place.

 

“We should not consider her more likely to have consented on the occasion in question, or to be less credible, simply because she was engaged in sexualized communications with the accused after the fact. Our focus must be on whether there was consent at the time of the alleged incident” wrote University of Calgary Law professor Jennifer Koshan shortly after the verdict was read. Crown prosecutor Michael Callaghan maintained the same opinion throughout the trial, arguing that the credibility of the witnesses had nothing to do with their behaviour after the fact.

However, Ghomeshi’s lawyer conversely believed that all the witnesses’ post offence behaviour did become extremely relevant to the trial when it was revealed that there was further correspondence with the accused after the fact and more importantly that the witnesses had lied about it.

The end result seemed to be a trail that focused more on the credibility of the witnesses and not the actions of the accused himself, and that seems grossly unfair at first glance. However, any guilty verdict in any trial requires evidence that must convince a reasonable jury of peers that there could be no reasonable doubt that the defendant is guilty. Like in many other cases, that evidence requires witness credibility, which in this was damaged when the witnesses omitted important evidence that changed their original testimonies.

 

Trying to rationalize or make excuses for unwanted or even violent behaviour is unfortunately not anything new. How many women have felt the need to downplay sexual advances at work for fear of losing her job? How many women have chosen to ignore unwanted attention because she’ll only be making a scene that will make her the target of more advances in the future? How many women have stayed with an abusive partner because he just needed to let off some steam and he promised to never do it again?

When you look at the Ghomeshi case as being a symptom of a larger societal problem, the verdict is enraging. It points to a legal system where predators and abusers can slip through the cracks on a measure of reasonable doubt even though a balance of probabilities flashes in bright neon signage that his actions point to those of a sexual predator.

However what’s the alternative? Challenging cross examinations exist for a very important reason, they maintain the presumption of innocence of the accused. To under mind that by taking the witnesses’ testimony as truth would be to under mind the most important pillar of the western justice system, which is that you are presumed innocent until proven guilty.

As I was on my way home from work later that night, I couldn’t help but think about something that my international law professor had told my class once, which is that the idea that the law is somehow a synonym for justice is a well-entrenched misconception. In a perfect world justice would be the natural effect of the law, and sometimes that is the case, but regularly it’s not.

Do I think Jian Ghomeshi was seriously wrong in what he did? Absolutely.  I hope Jian Ghomeshi experiences to the fullest what ‘social justice’ looks like and what it can do to a person’s career, influence and power.

However, I also have to respect the jury’s decision and the verdict because it kept within the definition of the law even though the result does not bear any resemblance to justice.

If there is any silver lining to be taken away from the Ghomeshi trial, it can be the hope that it reignites actions at both the larger political and smaller grassroots levels to increase education about sexual assault and all the forms it can come in. In 2010, Kathleen Wynn proposed a modernized sexual education curriculum. The new curriculum made consent one of the first concepts introduced at Grade 1 and made sure it would be reiterated to students year after year. The backlash against the sexual education reform from parents was so strong, former Ontario Premier Dalton McGuinty was forced to shelve the whole project three days after Wynn introduced it.

The outcome of the Ghomeshi trial stands as an example of what happens when there is still uncharted territory in the conversation about sexual assault; when there is still stigma surrounding survivors and what happens when victims feel that they cannot receive help.

That is a problem that goes much deeper than the Canadian legal system.

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